Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant

[2020] NSWSC 1333

Supreme Court

New South Wales

Medium Neutral Citation:

Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333

Hearing dates:

In Chambers on the papers

Date of orders:

30 September 2020

Decision date:

30 September 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1)      An order in the nature of certiorari quashing the Review Panel Certificate in MAS Matter No. 2019/02/0217 dated 18 December 2019.

(2)      An order in the nature of mandamus remitting the matter to the Second Defendant for reference of the plaintiff’s application for medical review to a differently constituted panel of at least three medical assessors for determination according to law.

(3)     The Plaintiff has liberty to apply in respect of costs to be exercised by Notice of Motion filed within 14 days supported by affidavit and written submissions not exceeding 3 pages in length, which matters are to be served upon the solicitor for the First Defendant.

(4)     The First Defendant to file any affidavit upon which it relies and its written submissions in response within a further period of 7 days with a view to the question of costs being determined in chambers on the papers without the need for any party to appear.

Catchwords:

ADMINISTRATIVE LAW – jurisdictional error – where multiple grounds propounded by the plaintiff - procedural fairness – where no opportunity given to re-examine the plaintiff – where Review Panel failed to conduct fresh assessment – where constructive failure to exercise jurisdiction – where question of adequate reasons given by the decision-maker – where question of failure to respond to substantial and clearly articulated arguments – where lack of contemporaneous record of complaint was treated as decisive to causation

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW) ss 44, 58(1)(d), 60, 61, 61(2), 61(9), 63, 63(3A), 131, 132, 133

Supreme Court Act 1970 (NSW) s 69

Uniform Civil Procedure Rules 2005 (NSW) r 6.11

Cases Cited:

AAI Ltd (t/as GIO) v McGiffen [2016] NSWCA 229; 77 MVR 348

Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244; 61 MVR 443

Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13

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

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

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

Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557

Mackey v CIC Allianz Australia Insurance Limited & Anor [2015] NSWSC 505

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

Trust Co. of Australia Limited v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654

Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57

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

Texts Cited:

American Medical Association’s Guide to The Evaluation of Permanent Impairment (4th Edition)

Motor Accident Authority, “Medical Assessment Guidelines”, 1 October 2008

Review Panel Practice Note 3/2005, the Review Panel Process

Category:

Principal judgment

Parties:

David William Donald Fraser (Plaintiff)
AAI Limited trading as GIO (ABN 48005297807) as agent for the Nominal Defendant (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Medical Review Panel (Third Defendant)

Representation:

Counsel:
J Gumbert (Plaintiff)

Solicitors:
Lamrocks Legal (Plaintiff)
Barry Nilsson Lawyers (First Defendant) (Submitting appearance)
Crown Solicitors (Second Defendant) (Submitting appearance)
Crown Solicitors (Third Defendant) (Submitting appearance)

File Number(s):

2020/84327

Judgment

1. This is an application for judicial review under s 69 Supreme Court Act 1970 (NSW) of a Review Panel Certificate issued under Part 3.4 of the Motor Accidents Act 1999 (NSW) (“the Act”). The plaintiff, Mr Fraser, is the claimant for motor accident damages in respect of injuries he suffered in a motor accident on 9 January 2017 when he was run over by a forklift truck. He claims to have suffered multiple injuries as a result of the negligence of the driver.

2. The matter has been considered in chambers on the papers at the request of Mr Fraser’s solicitors because each other party, being the natural contradictor, AAI Ltd, the State Insurance Regulatory Authority, and the members of the Medical Review Panel have filed a Notice of Appearance submitting to the making of all orders sought and the giving or entry of judgment in respect of all claims made by Mr Fraser, save as to costs, under r 6.11 Uniform Civil Procedure Rules 2005 (NSW). Notwithstanding r 6.11(2), the solicitors for AAI Ltd have indicated that their client “consents” to the matter being determined on the papers in chambers without the need for any party to appear.

3. I apprehend that the forklift truck involved in Mr Fraser’s accident was not insured for under the Act and accordingly AAI Ltd t/as GIO is handling the claim as agent for the Nominal Defendant. However for ease I will refer to it as “the insurer”.

Dealing with uncontested administrative law matters

4. There is, of course, a distinction between a party filing a submitting appearance and consenting to the relief sought. In Trust Co. of Australia Limited v Perpetual Trustees WA Ltd (1995) 36 NSWLR 654 at 659 – 661, Young J (as his Honour then was) held that the Court is not obliged to grant relief in favour of the plaintiff against a submitting defendant, although in the ordinary case it may do so without looking into the facts of the case.

5. The principle is of some importance because in Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557, French J (as the Chief Justice then was) said (at [12]):

“[12] In the case of an error of law attributed to a decision-maker or tribunal there is a particular public interest which requires the Court's specification of the error and its satisfaction that error occurred.

[13] It is also a substantial discourtesy for a court to overturn the decision of an official decision-maker and a fortiori that of a statutory tribunal without consideration of the error that leads to the decision being overturned or communication of the terms of that error to the decision-maker or tribunal.”

6. Applying Kovalev and taking up French J’s first point, Beech-Jones J in Mackey v CIC Allianz Australia Insurance Limited & Anor [2015] NSWSC 505 (at [3]) said that even where the active contradictor consents, it is necessary for the Court to be satisfied that there was error, and to identify the error which vitiated the administrative decision under review. His Honour pointed out:

“As a matter of administration, one reason why that course may be considered desirable is that, upon remittal, the relevant public body will have some guidance as to what they need to do in deciding the matter “according to law”.”

7. Bearing these principles in mind, it does seem to me apposite for the matter to be dealt with in a shorter form than may otherwise be required, given the submitting appearance of the insurer, whose commercial interests may well be at stake. It is the experience of the Court that these matters are usually closely contested.

Evidence

8. The evidence in the case is provided by the affidavit of the plaintiff’s solicitor, Stephen Peter Groves sworn on 1 May 2020. Mr Groves attaches the original certificate of the single assessor, Dr Assem dated 31 July 2019, the application for review of that certificate including the detailed written submissions filed with it on 25 September 2019, the insurer’s reply together with its submissions of 21 October 2019 and a copy of the Review Panel Certificate and reasons dated 18 December 2019, which is the decision under review.

9. Mr Groves also gives other evidence to which I will return.

Background facts

10. Mr Fraser worked as a truck driver. On 9 January 2017 he was delivering materials to a work place. Having completed the delivery he was walking back to his truck when he was struck from behind by the tines and load of a forklift truck. The truck ran over him then reversed off him. Apparently the driver’s lookout was obscured by the large load he was carrying on the forklift’s tines.

11. Mr Fraser told Dr Assem that he noticed pain in his left hip, left knee and both ankles straightaway. After resting for 20 minutes he had been able to drive the truck back to his depot and attended a medical centre for treatment. X-rays showed a possible fracture to the inferior pole of his left patella and an undisplaced fracture of his right wrist. Mr Fraser also complained of injuries to his right shoulder, left hip and right ankle.

12. Dr Assem accepted that the injuries to Mr Fraser’s right wrist, left knee and ankle were caused by the motor accident. He rejected the connection between the motor accident and the alleged right shoulder injury because “[t]here’s no evidence on the contemporaneous medical records of his treating doctor of pain involving [Mr Fraser’s] right shoulder”: Affidavit, Stephen Peter Groves, 1 May 2020 (“Affidavit”) at 13. He also rejected the connection between the left hip injury and the motor accident because of what he regarded as a five month delay in complaints of symptoms in the left hip finding their way into primary clinical records. Dr Assem said, this “prevents any reasonable relationship to be established with the subject accident”: Affidavit at 13. He also said there was no contemporaneous evidence of an injury to Mr Fraser’s right ankle or foot.

13. Accepting that the injuries to the right wrist, left knee and left ankle were caused by the motor accident, Dr Assem assessed the degree of permanent impairment as a result of those injuries at 10 percent whole person impairment. This degree of permanent impairment did not cross the s 131 threshold of “greater than 10 percent” under the Act and accordingly should it stand, no damages may be awarded to Mr Fraser for non-economic loss resulting from the motor accident.

Application for review and review conducted by the Review Panel

14. Mr Fraser applied to the Proper Officer of SIRA for review of the medical assessment by a Review Panel of medical assessors under s 63 of the Act. Detailed written submissions of 7 pages in length were provided in support of the application. There were said to be 6 categories of error affecting the assessment, including use of a non-applicable version of the Motor Accident Permanent Impairment Guidelines, misapplication of the assessment criteria and factual errors relating to the causation of the claimed left hip and right shoulder injuries. I have adopted the summary of these from the written submissions of Ms J Gumbert of counsel below (at [50]).

15. In its Statement of Reasons, the Review Panel “noted” that Mr Fraser disputed (Affidavit at 46):

“Permanent impairment, suggesting the incorrect calculation methodology had been used by the Assessor (sic).”

And that the insurer “opposed the application”. “The Panel considered all the available evidence and decided that a re-examination of the claimant was not necessary because sufficient information had been provided by the assessor;” this notwithstanding the consideration that the assessor’s “calculation methodology” was very much in dispute.

16. I record that in reviewing the original medical certificate the Review Panel noted Mr Fraser’s history given to Dr Assem, inter alia that he experienced immediate pain in his left hip.

17. I will record now that my very firm impression is that the procedure adopted by the Review Panel was essentially to undertake a review of the assessor’s reasons rather than “a new assessment of all the matters with which the medical assessment is concerned”: s 63(3A) of the Act. While agreeing generally with the assessment of Dr Assem, including as to his approach to causation in respect of the left hip and right shoulder injuries, the Review Panel detected an error made by Dr Assem in favour of Mr Fraser in respect of his assessment of impairment for the, right wrist and left ankle injuries. Correcting these errors, the Review Panel reduced the 10 percent whole person permanent impairment assessment to 7 percent.

18. The reduction of the assessment for the right wrist was “based on the assumption that the right wrist would have had similar restricted range of motion to the uninjured left wrist prior to the accident”: Affidavit at 47. Likewise in respect of the left ankle, the Review Panel found “a slight restriction of extension of the uninjured right ankle” which, bearing in mind the Review Panel considered the absence of contemporaneous record of injury rendered the right ankle not assessable, required a reduction for that matter in the assessment made of the impairment of the left ankle: Affidavit at 48.

Statutory framework

19. I should say that unless, otherwise stated all references below are to the Motor Accidents Compensation Act 1999. Medical disputes, including a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10 percent (s 58(1)(d)), are resolved by medical assessment under s 60.

20. Under s 61 the medical assessor or assessors to whom a medical dispute is referred are to give a certificate as to the matters referred for assessment. The Medical Assessment Certificate is conclusive evidence as to the matters certified in any court proceeding or in any assessment by a claims assessor in respect of the claim concerned: s 61(2).

21. I have already referred to s 131 of the Act. Obviously where a dispute has been resolved by medical assessment, the Medical Assessment Certificate issued is conclusive of whether the claimant has the necessary degree of permanent impairment of greater than 10 percent to obtain damages for non-economic loss.

22. Section 132 forbids a Court from awarding damages for non- economic loss unless the degree of permanent impairment has been assessed by a medical assessor(s). Section 133 requires the degree of permanent impairment to be assessed in accordance with Motor Accident Medical Guidelines issued for that purpose under s 44.

23. The power conferred on the authority under s 44 extends to issuing guidelines with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments under Part 3.4: s 44(1)(d). If the proper officer of SIRA is satisfied that there is reasonable cause to suspect that the original medical assessment was incorrect in a material respect, the matter is to be referred for a review by a panel of at least three medical assessors. I repeat that under s 63(3A) that review is not limited to a review only of that aspect of the assessment that is alleged to be incorrect, but is to be by way of a new assessment of all the matters with which the medical assessment is concerned. The Review Panel may confirm the original certificate or revoke it and issue a new certificate as to the matters concerned: s 63(4).

24. Section 65 confirms that medical assessments, including reviews, are subject to the relevant provisions of the s 44(1)(d) guidelines. Under s 65(2), the authority is authorised to arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments.

25. Medical assessment guidelines have been issued under s 44(1)(d) with respect to the procedures for review of assessments. By Guideline 16.21 upon referral for review:

The Review Panel is to hold an initial meeting or teleconference … and, at that meeting … is to:

…

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

…

26. The authority has issued practice notes under s 65(2) for the promotion of accurate and consistent medical assessment. One such practice note is “Review Panel Practice Note 3/2005, the Review Panel Process”. Paragraph 4 of the Practice Note is entitled “Whether Re-examination is required”. It establishes the following general principles to be observed:

1. “The Review Panel should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessments.

2. If the Review Panel is informed that a party has objected to the review being conducted ‘on the papers’, then the Panel should generally conduct a re-examination.

3. A re-examination should generally be conducted by more than one Panel member, unless all Panel members are satisfied that, having regard to the circumstances of the case, examination by a single Panel member is appropriate.

4. Generally, where the credit of the claimant is in issue, a re-examination by more than one Panel member should be conducted.”

Grounds of review

27. I have had the considerable benefit of written submissions on behalf of the plaintiff prepared by Ms J Gumbert of Counsel. Ms Gumbert advances five grounds of review as follows:

1. The Review Panel failed to afford procedural fairness to Mr Fraser by deciding not to re-examine him without notice;

2. The Review Panel failed to conduct a fresh assessment, but rather reviewed Dr Assem’s medical certificate for the detection and correction of error only;

3. The Review Panel failed to provide adequate reasons;

4. The Review Panel failed to respond to substantial and clearly articulated arguments; and

5. The Review Panel erred by treating the presence or absence of contemporaneous record of complaint as decisive of questions of causation.

These grounds have been distilled from the broader grounds stated in the summons. It is obvious that grounds 3 and 4 are closely interrelated and I will deal with them together.

Failure to re-examine Mr Fraser

28. In his affidavit of 1 May 2020, Mr Groves gave the following unchallenged and un-contradicted evidence:

7.    I, on behalf of the Plaintiff, and the Plaintiff was (sic) not put on notice of the [Review Panel’s] decision to conduct this assessment without examining the plaintiff.

8.   Had I been given notice of the [Review Panel’s] intention to proceed with its assessment without examining the Plaintiff, I would have provided further submissions explaining why my client objected to that decision.

9.   If those Submissions were rejected, I would have obtained a detailed Statement from the Plaintiff for consideration by [the Review Panel] addressing the following matters:

(a)    Errors in the reasons given by Assessor Assem;

(b)   Further details regarding causation and onset of injuries and disabilities;

(c)   An update on the Plaintiff’s injuries and current disabilities.

29. This evidence is admissible on the question of whether the Review Panel fell into jurisdictional error. In Allianz Australia Insurance Limited v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 (at [15]) Basten JA said that jurisdictional error may be established by any admissible evidence relevant for that purpose. Mr Groves’s evidence in this regard is clearly relevant to the question of whether the Review Panel afforded Mr Fraser procedural fairness.

30. Ms Gumbert submitted that the failure to re-examine Mr Fraser was capable of amounting to a constructive failure to exercise jurisdiction. She referred to Boyce v Allianz Australia Insurance Limited (2018) 96 NSWLR 356; [2018] NSWCA 22 where Basten JA said (at [15]) that clause 16.21.2 did not require a re-examination, but rather called for an evaluative judgment as to whether re-examination was required. At [28] his Honour referred to [4] Practice Note 3/2005 and in particular [4(a)(i)] stating the general rule that the Review Panel should include a re-examination except where there is no dispute, “ambiguity or uncertainty as to the clinical findings that are required”. His Honour had said (at [26]) that such documents are not likely to give rise to legally enforceable controls, but may provide a basis for demonstrating unfairness resulting from a breach of the procedural requirements imposed.

29. In Boyce the claimant had expressly sought a re-examination, which was not afforded to her. At [56] Basten J:

“By parity of reasoning, given that the Panel was required to consider subjective as well as objective criteria, which could only be assessed upon examination of the appellant and considering her description of her condition, the circumstances in which it can be legitimate to reject an application for examination will be rare. The decision not to examine in such circumstances cannot properly be exercised on a false belief that the claimant does not seek an examination.”(My emphasis.)

His Honour also said that acceptance of the original assessor’s findings, but reducing the assessment, in that case, by 80 percent “was flawed” (at [57]).

32. His Honour ultimately found that jurisdictional error had occurred, inter alia, because of a denial of procedural fairness. His Honour said at [94] – [95]:

“[94] The present case was not one in which a claimant was dissuaded from making submissions because she was misled by the decision-maker; rather it was a case in which the decision-maker failed to provide an opportunity either for an interview and clinical examination, or for further submissions, because it was itself misled as to the appellant’s wishes, through no fault of hers. The result, however, was the same: the appellant was deprived of an opportunity to put her case fully before the Review Panel, either as to why she “objected” to the Panel proceeding “on the papers”, or as to what she might do if her objection were rejected. That constitutes procedural unfairness; she did not have to tell the reviewing court what she would have said if she had been accorded the opportunity by the Panel, not least because the court could not (and should not) assess how the Panel might have responded.

[95] Further, given the criteria and the statutory scheme outlined above, including by reference to the Permanent Impairment Guidelines, this is a case where impressions created by a personal interview and clinical examination may well have been of such potential significance that a reasonable review panel could not properly have denied her the opportunity for such a process had it been aware that she sought it. That alone may be sufficient to justify a finding of procedural unfairness. It cannot be demonstrated that the absence of such opportunities “did not deprive [the appellant] of the possibility of a successful outcome”, and hence relief should not be refused.

See also Sackville AJA at [122] – [124].

33. Although in the present case no proactive steps were taken to make clear to the Review Panel that Mr Fraser desired the opportunity to be re-examined, I accept the evidence of Mr Groves that had he been made aware that the Review Panel had dispensed with a re-examination he would have sought to challenge that decision, and if the assessors could not be persuaded otherwise, would have sought to put in further detailed material.

34. Moreover, as Ms Gumbert argues, in circumstances where very detailed criticisms were made in the written submissions of the assessor’s approach and the correctness of the criteria applied more than a cursory consideration of the question was called for. Given the detailed submissions advanced, it could not be said that “there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment”: Practice Note 3/2005, [4(a)(i)].

35. I am satisfied in the particular circumstances of the case that the failure to provide an opportunity for Mr Fraser to be re-examined was a denial of procedural fairness and therefore jurisdictional error.

36. I think it clear that the failure to afford Mr Fraser the opportunity to be re-examined and provide further information in answer to the Assessor’s questions deprived him of the possibility of a successful outcome. As Basten JA said in Boyce at [74]:

“A judicial assumption that an opportunity to provide further evidence or material could not have affected the outcome is fraught with difficulty.”

As the criticisms of Dr Assem’s certificate included the application of incorrect criteria and an erroneous approach to questions of causation, it seems obvious that the re-examination, including further elucidation of the medical history of the development of symptoms may well have made a difference.

The Review Panel failed to conduct a fresh examination

37. As I have said more than once, s 63(3A), provides:

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

Obviously, the original medical certificate and the assessor’s reasons are not irrelevant to the process. After all, the Review Panel is undertaking a “review of a medical assessment”. However, the Review Panel is not solely, or even mainly, concerned with the detection and correction of error. Ms Gumbert reminded me of the decision in the Court of Appeal of Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 where Leeming JA said at [9]:

“Although styled a “Review”, in truth the Panel is determining afresh the medical assessment matters referred to it. That is confirmed by s 63(3A) which provides that the review is not limited to that aspect of the assessment alleged to be incorrect, and is to be “by way of a new assessment” of all the matters.”

38. Reviewing the Review Panel’s Certificate and reasons for myself, I was, I must say, struck by the absence of any evidence of any fresh approach. It seemed to me palpable that notwithstanding general statements such as: “the Panel considered the matters cited in the Application for Review” (Affidavit at 46); “[t]he Review Panel considered afresh all aspects of the assessment under review”: Affidavit at 46; and “[i]n relation to the issues raised in the application, the Panel agreed that these have all been dealt with in section 3 above”: Affidavit at 50, the Review Panel restricted itself to reviewing the reasons of Dr Assem for the detection and correction of error only. Indeed, nowhere is this more palpable than in s 3. For instance, although the Panel acknowledged receipt of a good deal of documentation, in section 1C (Affidavit at 45) at s 3B, under the heading “Additional Evidence” the Review Panel simply recorded, “Not applicable”: Affidavit at 47.

39. It is true that the Review Panel detected and corrected error in Dr Assem’s methodology for assessing the impairment of the right wrist and left ankle. But this perhaps emphasises the point. Moreover, neither the claimant nor the insurer, for that matter, raised those particular errors for the Review Panel’s consideration. Indeed Mr Fraser submitted there was no occasion for such deductions absent articulation of a reasonable explanation and rationale for an expectation that, pre-accident, the range of movement would be the same.

40. I appreciate that in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (at [47]), albeit in respect of the functions of a medical panel constituted under somewhat different Victorian legislation, an unanimous High Court of Australia said:

“The function [of a medical panel] 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.”

But their Honours also pointed out that the medical panel there was obliged to observe procedural fairness, “so as to give an opportunity for the parties to the underlying question or matter who will be affected by the opinion to supply … 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.” Doubtless, as their Honours said, the Medical Panel “may choose” to place weight on such material or, equally, discard it. Its function “is neither arbitral nor adjudicative”. At the same time, if its core function is to form and give its own opinion by applying its own medical expertise in a statutory context which requires it to approach the matter afresh, it must do more, and be seen to have done more, than merely “mark the original assessor’s homework”.

41. There is nothing in my reading of the Review Panel’s reasons which suggests anything amounting to a fresh approach to, or even a second look at, the medical dispute that had been referred for assessment as required by the statute.

42. In my opinion, this amounts to a constructive failure to exercise its jurisdiction.

Failure to provide reasons or to respond to argument

43. These separate grounds may conveniently be dealt with together. The Review Panel’s legal obligation to provide reasons is not necessarily onerous. Section 61(9) which applies equally to a Medical Certificate issued by a Review Panel provides that the “certificate is to set out the reasons for any finding by the …. assessors as to any matter certified … in respect of which the certificate is conclusive evidence”. And by dint of s 61(2) the Review Panel’s Certificate is conclusive evidence of the degree of Mr Fraser’s permanent impairment for the purpose of s 131 of the Act.

44. In Wingfoot their Honours said at [55]:

“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.”

45. It can be seen from this exposition that the statement of reasons serves more than one purpose. First, of course, the provision of reasons is necessary as a matter of procedural fairness. Given the centrality of the assessment of permanent impairment in a claim for motor accident damages, the parties are entitled to know how the assessment was reached. Secondly, the provision of reasons is to facilitate the process of judicial review and therefore facilitate the interest of justice more generally.

46. Although referable to a court, rather than to an administrative decision-maker, let alone a medical panel, I consider it appropriate to refer to the judgment of Hayne J in Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [130].

“In the present case, however, reference to the "sufficiency" of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”

47. One would not impose upon medical experts the standards applicable to judicial officers, especially those in the higher courts, but the idea that, “the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at the result”, seems to me equally applicable to judges and administrative decision-makers, including medical experts sitting as members of a review panel. Measuring the Review Panel’s reasons by application of this yardstick, it seems clear to me that their reasons do explain the actual path by which the Review Panel in fact arrived at their conclusions. They did so simply by reviewing and, correcting, Dr Assem’s assessment. Other than to the extent to which corrections were made, a consideration of the reasons left me with the firm impression that the Review Panel restricted itself to a paper review of Dr Assem’s assessment and that there is nothing in their statement of reasons that suggests the undertaking of a new assessment of all the matters with which the medical assessment is concerned. It must be said that the approach taken by the Review Panel was even narrower than one “limited to a review only of that aspect of the assessment that is alleged to be incorrect”: s 63(3A).

48. It follows I am not persuaded that the reasons provided failed to measure up to the standard articulated by the High Court. However, the Review Panel’s reasons do disclose the error of constructive failure to exercise jurisdiction in the manner I have explained.

49. This leads me then to the related question whether the Review Panel failed to respond to substantial and clearly articulated arguments. This expression is derived from the decision of the High Court of Australia in Dranichnikov v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. In that matter Gummow and Callinan JJ said:

“To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord (the person concerned) natural justice.”

There may be a question about whether the “facts” had been “established” here. However, this species of jurisdictional error has been held to be applicable to decision-making in the medical assessment process for the purpose of the Act by decisions of the Court of Appeal: Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244; 61 MVR 443; Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514. In the latter case, Gleeson JA at [109] described a failure by a review panel “to respond to a substantial argument based on evidence relied upon” by the claimant as to the causation of his injuries by the motor accident as a failure to direct itself as to the real question to be decided and ultimately his Honour found that it amounted to jurisdictional error.

50. I have already made mention of the detailed written submissions that were provided to the Review Officer for the purpose of the exercise of her “gateway” function which were also placed before the Review Panel. Ms Gumbert summarised these matters clearly and succinctly in her written submissions as follows (at [8]):

(1)    That the assessor incorrectly recorded the radial and ulnar measurements of the right wrist to the nearest 10° rather than 5° as prescribed by clause 1.55 of the Motor Accident Permanent Impairment Guidelines ("the guidelines").

(2)   That the assessor conducted the assessment in accordance with the incorrect version of the guidelines. Critically, that the WPI calculations were based on an outdated version of the guidelines after referring to two different versions.

(3)   That the assessor failed to comply with clause 1.71 of the guidelines, resulting in an incorrect combination and calculation of impairment of the left knee and left ankle.

(4)   That the assessor failed to adhere to clause 1.51 of the guidelines and failed to demonstrate a clear path of reasoning to satisfy that the findings in relation to the contralateral joint (right wrist) were reasonable to rely on for purposes of impairment and clause 1.51.

(5)   That there was a factual error in the findings of the assessor amounting to internal inconsistency. The assessor found that the first complaint of left hip injury was 5 months after the motor accident when at page 3 of the assessor's certificate, it is noted that the claimant had mentioned left hip pain at the time of the motor accident.

(6)    That findings in relation to the right shoulder were erroneous and contrary to the evidence before the assessor. The findings did not appear reasonable and open to be made in the face of the evidence.

51. It is not clear on the face of the reasons that any of these matters were addressed. I accept that it is possible, perhaps likely, that the Review Panel adopted the correct version of the guidelines. But even that is not obvious. Reference is made to the American Medical Association’s Guide to The Evaluation of Permanent Impairment (4^th Edition) and the Impairment Assessment Guidelines. But it is not clear which version of the latter manual was employed.

52. In relation to submission (4), the Review Panel when assessing impairment of the right wrist referred to the contra-lateral uninjured left wrist for comparison and formed an “assumption” that the injured right wrist would have had a similar pre-injury restricted range of motion: Affidavit at 47. The written submissions on behalf of Mr Fraser pointed out that cl 1.5(1) of the Guidelines permitted a deduction “only if there is a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before injury”: Affidavit at 29. The Guideline also required, “[t]he rationale for this decision must be explained in the impairment evaluation report”. It must be said that no reasonable explanation is given. As I have said, the members of the Review Panel contented themselves with making an “assumption”. Given that this was an area where Dr Assem’s assessments were reduced, the error is obviously material in the administrative law sense.

53. So far as the approach to medical causation referred to at submissions (5) and (6) of Ms Gumbert’s summary is concerned, the members of the Review Panel did not engage with Mr Fraser’s submissions. Rather, they contented themselves with expressing agreement with Dr Assem’s approach that an apparent delay in a complaint of injury showing up in clinical records maintained by treating doctors was sufficient to disentitle Mr Fraser from any further consideration of the connection, if any, between the motor accident and the injury.

54. I am satisfied that the fourth, but not the third, ground is made out.

Legal causation and the question of contemporaneity of medical record of injury

55. This ground affects Mr Fraser’s entitlement to have impairments resulting from an alleged injury to his left hip and right shoulder included in the assessment for the purpose of s 131. Submissions (5) and (6) above in Ms Gumbert’s summary apply. As was made clear by the fuller written submissions attached to Mr Grove’s affidavit (at 29-30), a body of material was provided to the Medical Review Panel to persuade it that there was a connection between these asserted injuries and the motor accident. Some emphasis was placed upon Mr Fraser’s subjective history that he had suffered left hip pain at the time of the accident. None of this material was evaluated by, or even expressly referred to, by the Review Panel. I make no comment on what should have been made of it. Rather, the Panel simply agreed with the assessor that a delay of 5 months in the medical recording of a complaint about the left hip meant there was no “causation”: Affidavit at 48. For the right shoulder, a delay of 2 months in the medical recording of complaints persuaded the Assessor that “causation had not been found” and the Review Panel “was in agreement with this”: Affidavit at 47.

56. One is driven to the conclusion that:

1. the Review Panel did not seriously consider the argument put forward on behalf of Mr Fraser;

2. restricted itself to a consideration of Dr Assem’s reasons and whether they agreed with him or not; and

3. treated the absence of a strictly contemporaneous record as decisive of the question of legal causation.

57. Many cases have emphasised that this is a legally erroneous approach to the question of legal causation thrown up by s 58(1)(d) of the Act. It’s sufficient to refer only to the decision of the Court of Appeal in AAI Ltd (t/as GIO) v McGiffen [2016] NSWCA 229; 77 MVR 348. In that matter, an unanimous court (Meagher, Simpson and Payne JJA) pointed out that the question of legal causation was to be determined by asking whether the injury being considered and any associated impairment was caused or materially contributed to by the motor accident. Their Honours said, s 58(1)(d) “necessarily directs attention to whether the motor accident was a contributing cause of the injury” ([54]). And at [64]-[66] their Honours said:

“[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the “gait derangement”, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident?

[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.

[66] This was a case where a failure by the review panel to respond to a substantial argument led to a practical injustice. The primary judge was correct to hold that the review panel did not address the correct question put to it for determination.”

As I have said, this is only one of a number in a series of cases emphasising that to treat primary clinical records as decisive of causation will almost always result in jurisdictional error. This may be formulated as a failure by the Review Panel to direct itself to the question actually posed by s 58(1)(d) resulting in “a purported and not real exercise of its statutory function”. The question of the merits of Mr Fraser’s claim, of course, is nothing to do with the Court. But he is entitled to have his claim determined according to law and in conformity with the requirements of the governing statute, in this case, the Motor Accidents Act 1999.

58. For these reasons I am satisfied that each of grounds 1,2 4 and 5 propounded on behalf of Mr Fraser have been made out. It will be necessary to quash the Review Panel’s certificate and to remit the matter for determination according to law. Although the Court is always loathe to interfere with matters of internal management of the Medical Assessment Service, given the Review Panel’s maturely formulated views, I am of the view that the interests of justice require the further determination of the questions raised for the consideration by a differently constituted Review Panel.

59. My orders are:

1. An order in the nature of certiorari quashing the Review Panel Certificate in MAS Matter No. 2019/02/0217 dated 18 December 2019.

2. An order in the nature of mandamus remitting the matter to the Second Defendant for reference of the plaintiff’s application for medical review to a differently constituted panel of at least three medical assessors for determination according to law.

3. The Plaintiff has liberty to apply in respect of costs to be exercised by Notice of Motion filed within 14 days supported by affidavit and written submissions not exceeding 3 pages in length, which matters are to be served upon the solicitor for the First Defendant.

4. The First Defendant to file any affidavit upon which it relies and its written submissions in response within a further period of 7 days with a view to the question of costs being determined in chambers on the papers without the need for any party to appear.

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Decision last updated: 30 September 2020