IAG Limited t/as NRMA Insurance v Jammal

[2019] NSWSC 676

Supreme Court

New South Wales

Medium Neutral Citation:

IAG Limited t/as NRMA Insurance v Jammal [2019] NSWSC 676

Hearing dates:

1 May 2019

Date of orders:

07 June 2019

Decision date:

07 June 2019

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) The decision of the proper officer of the second defendant dated 27 July 2018 refusing the plaintiff’s application under s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) for further medical assessment of the first defendant (the Further Assessment Application) is set aside.

 

(2)   The matter of the Further Assessment Application is remitted to the second defendant for re-determination according to law.

 (3)   The first defendant is to pay the plaintiff’s costs of these proceedings as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision under the Motor Accident Compensation Act 1999 – SIRA proper officer refused application for further assessment of a medical dispute – whether proper officer’s decision affected by error of law on the face of the record or jurisdictional error – failure to address substantial, clearly articulated argument – error established – decision set aside and matter remitted for redetermination according to law

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Ali v AAI Limited [2016] NSWCA 110; 75 MVR 502
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; 81 MVR 249
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; 77 ALJR 1088
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69
Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322
Rodger v De Gelder & Anor (2011) 80 NSWLR 594; [2011] NSWCA 97

Texts Cited:

Medical Assessment Guidelines (effective from 1 October 2008)
Motor Accident Permanent Impairment Guidelines (effective from 1 June 2018)

Category:

Principal judgment

Parties:

IAG Limited t/as NRMA Insurance (Plaintiff)
Kamal Eddine Jammal (First Defendant)
State Insurance Regulatory Authority (Second Defendant)

Representation:

Counsel:
M Robinson SC and Dr J Lucy (Plaintiff)
EG Romaniuk SC and N Ghabar (First Defendant)
Submitting appearance by Second Defendant

  Solicitors:
Hall & Wilcox Lawyers (Plaintiff)
Law Partners Personal Injury Lawyers (First Defendant)
NSW Crown Solicitor (Second Defendant)

File Number(s):

2018/00329072

Judgment

Background

1. Mr Jammal, the first defendant, was involved in a motor vehicle accident on 25 February 2015 in New South Wales. IAG Limited, trading as NRMA Insurance (NRMA), the plaintiff, was the licensed compulsory third-party insurer in respect of the vehicle at fault in that motor accident.

2. Mr Jammal has claimed damages as a result of injuries allegedly suffered in the accident. There was a medical dispute regarding Mr Jammal’s degree of permanent impairment. Eventually, on 21 February 2017, Medical Assessor Pascall issued a certificate, under s 61 of Motor Accidents Compensation Act 1999 (NSW) (MAC Act), assessing Mr Jammal as having 11% whole person impairment (WPI) for injuries to his cervical spine and right and left shoulders that were caused in the accident. This assessment was made in light of Mr Jammal’s denial of any previous neck pain or stiffness or any shoulder problem, prior to the accident.

3. On 8 June 2018, NRMA applied, under s 62(1)(a) of the MAC Act, for a further assessment of permanent impairment. The basis for this application was that additional relevant information about the injuries sustained in the accident had come to light and this additional information was said to be capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in Medical Assessor Pascall’s assessment. NRMA provided material (including, most significantly, clinical records of Dr Nosir, which had not been available to the assessor) and submissions in support of its application for a further assessment. NRMA claimed that Dr Nosir’s clinical records showed that, contrary to what Mr Jammal had told the assessor, he had a history of cervical spine and shoulder symptoms prior to the accident.

4. On 12 July 2018, Mr Jammal provided material and submissions in opposition to the application.

5. On 27 July 2018, Ms Elliott, the proper officer of the State Insurance Regulatory Authority (SIRA), the second defendant, decided to refuse NRMA’s application and she provided her reasons for doing so.

Judicial review application

6. On 26 October 2018, NRMA filed a summons, invoking the supervisory jurisdiction of this Court, confirmed by s 69 of the Supreme Court Act 1970 (NSW), seeking to have the proper officer’s decision set aside together with ancillary orders.

7. An amended summons was filed, by leave, on 1 May 2019. In the amended summons, NRMA has sought, in summary:

1. an order in the nature of a writ of certiorari setting aside the decision of the proper officer to refuse NRMA’s application for a further medical assessment;

2. an order in the nature of prohibition or an injunction preventing the defendants from acting on the impugned decision;

3. an order in the nature of mandamus requiring SIRA, by its proper officer, to arrange for the medical dispute to be referred to a medical assessor or, alternatively, requiring SIRA to allocate NRMA’s application for a further assessment to a different proper officer for determination, in accordance with law;

4. an interim order, if necessary, to the effect of the order referred to in par (2) above; and

5. costs.

8. NRMA contended that there were a number of jurisdictional errors and errors on the face of the record affecting the proper officer’s decision to reject NRMA’s application for a further assessment. Those errors were identified as follows:

“First error:

In making her determination, the proper officer failed to set out proper or lawful reasons (especially at reasons at [13], [17], [37] and [43]). She was required to set out lawful reasons by reason of SIRA’s Medical Assessment Guidelines, effective 1 October 2008 – clause 14.8 which applies by reason of sections 44(1)(d) and 65(1) of the [MAC] Act. The failure is an error of law on the face of the record or a constructive failure. Accordingly, the decision is invalid.

Second error

In the plaintiff’s application for a further medical assessment, the proper officer was asked to consider questions of causation that arose from the (accepted by her) additional relevant information (see [10] and [29]). However, in her determination as to the second limb of the section 62 tests (material effect) the proper officer simply failed to consider these arguments or to engage with them or determine them. This is an error of law or a denial of procedural fairness. Accordingly, the decision is invalid.

Third error

The proper officer’s wrongly imposed (reasons at [26] to [28]) a requirement that there must first be “clinical examination findings” available to her from the new material (the additional relevant information) for there then to constitute a material effect as to pre-existing impairment. In any event, it was not for the proper officer to make this assessment – it is the statutory duty of a medical assessor to make that call (when applying clauses 1.31 and 1.32 of the SIRA’s Permanent Impairment Guidelines made on 1 October 2007). She only had to assess “capability” of a material effect under section 62. Here, she impermissibly took on the role of the medical assessor in making her determination. Accordingly, the proper officer took the wrong legal approach here and her decision is invalid.”

9. The amended summons also included two grounds which were said to be put on a “formal” basis in order to preserve NRMA’s right to argue these grounds on appeal. In this regard, it was accepted that this Court sitting at first instance was bound by Court of Appeal authority to reject these grounds. These two grounds were formulated in the amended summons in the following terms:

“6A The first ground upon which relief is formally sought as to the decision is that the proper officer misconceived her function and powers and exceeded her powers in that:

(a) her role was to arrange for the dispute to be referred to a medical assessor;

(b) she had no power to refuse to refer the dispute to a medical assessor, on the basis that she was not satisfied that the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment (or on any other basis); and

(c) upon receiving the plaintiff’s referral of a matter, she was required to arrange for the matter to be referred and failed to fulfil that obligation.

6B To the extent that the Medical Assessment Guidelines, effective 1 October 2008, purported to require the plaintiff to apply to the proper officer for further assessment of a medical dispute and purported to confer upon the proper officer the powers to determine whether a matter should be referred for further assessment and to dismiss an application, they are invalid as being contrary to the [MAC] Act and, in particular, contrary to Part 3.4 of the [MAC] Act.”

10. Mr Jammal filed his response to summons on 20 December 2018. This response made clear that he opposed the granting of any of the relief sought.

The evidence

11. The evidence relied upon in support of the claims for relief in the amended summons requires some comment. NRMA read the affidavit of Mr Watts affirmed on 31 January 2019. The affidavit was two pages in length but there were 487 pages of annexures. Many hundreds of pages consisted of medical records relating to Mr Jammal, which were not referred to by either party during the hearing or in written submissions. The parties were content for me initially to receive the whole of the annexures but, after submissions, to remove those parts of the annexures that were not referred to by the parties. It was accepted that those parts which were removed would not be included in evidence before the Court.

12. On this basis, I removed pp 40 to 251 and 254 to 453 from the annexures to the affidavit. It can be noted that pp 252 and 253 were two pages from the computerised notes of NAS Advanced Medical Centre relating to Mr Jammal for the period from 26 February 2015 to13 April 2015. Mr Romaniuk of Senior Counsel, who appeared with Mr Ghabar for Mr Jammal, referred to entries on those two pages during his oral submissions.

13. There was no other evidence.

Relevant statutory provisions

14. In order to consider the arguments put by both parties, it is necessary to review some relevant statutory provisions governing the medical assessment of injuries for the purposes of the MAC Act.

15. The objects of the MAC Act are set out in s 5(1), and the following paragraphs can be seen as potentially relevant in a case such as the present:

“(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,

…

(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,

…

(g) to deter fraud in connection with compulsory third-party insurance.”

16. Section 6(1) of the MAC Act requires the Court, when interpreting a provision of the Act, to prefer a construction that would promote the objects of the Act rather than one that would not do so. Similarly, under s 6(2), any person exercising a discretion conferred by a provision of the Act must do so in a way that would best promote the objects of the Act or of the provision concerned.

17. Consistently with the object in s 5(1)(e), s 131 of the MAC Act provides that no damages for non-economic loss are to be awarded unless the degree of permanent impairment of the injured person as a result of the motor accident is greater than 10%. Section 132 provides that if there is a dispute about whether the degree of permanent impairment exceeds the 10% threshold, a court may not award any such damages unless the degree of impairment has been assessed by a medical assessor under Pt 3.4 of the MAC Act.

18. The method of assessing the degree of impairment is governed by s 133. That section requires that the degree of permanent impairment is to be expressed as a percentage and is to be assessed, in a case such as the present, in accordance with the Motor Accidents Medical Guidelines issued for that purpose. Section 44 empowers SIRA to issue Motor Accidents Medical Guidelines.

19. It was not in dispute at the hearing that the relevant guidelines for present purposes were:

1. the Medical Assessment Guidelines issued by SIRA’s predecessor under s 44(1)(d) of the MAC Act effective from 1 October 2008 (the Medical Assessment Guidelines or MAG); and

2. the Motor Accident Permanent Impairment Guidelines issued by SIRA under s 44(1)(c) of the MAC Act effective from 1 June 2018 and applicable to motor accidents occurring between 5 October 1999 and 30 November 2017 (the Permanent Impairment Guidelines or PIG).

20. Part 3.4 of the MAC Act is headed “Medical Assessment” and comprises ss 57 to 65.

21. Under s 57, a “medical dispute” means a disagreement or issue to which Pt 3.4 applies. By virtue of s 58(1)(d), that part relevantly applies to a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%. In the present case there was such a dispute between Mr Jammal and NRMA.

22. Sections 57A, 59, 59A and 60 provide for the establishment of a Motor Accidents Medical Assessment Service, the appointment of medical assessors and the referral of medical disputes to those assessors. Under s 61(1) and (2), the medical assessor to whom a medical dispute is referred must give a certificate as to the matters referred for assessment and any such certificate 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”, subject to certain exceptions that are not presently relevant.

23. As noted above, Medical Assessor Pascall had already given a certificate assessing Mr Jammal’s degree of permanent impairment for injuries to his cervical spine and right and left shoulders that were caused in the accident at 11%.

24. Section 62 provides that medical disputes and other matters may be referred for assessment more than once. That section is in the following terms:

“(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.”

25. NRMA applied under s 62(1)(a) for a further assessment on the ground that Dr Nosir’s clinical notes constituted “additional relevant information” which was “capable of having a material effect on the outcome of the previous assessment”, as provided in s 61(1A). The NRMA’s application was referred to Ms Elliott, as “the proper officer” for the purposes of s 61(1B).

26. Sections 63 and 64 deal with reviews of medical assessments by review panels, and the costs of medical assessments.

27. Finally, s 65 deals with the monitoring and oversight of medical assessments and provides, in subs (1), that medical assessments under Pt 3.4 are subject to the relevant provisions of the Motor Accidents Medical Guidelines.

Relevant provisions of the Medical Assessment and Permanent Impairment Guidelines

28. Since the assessment of medical disputes is to be in accordance with the relevant guidelines, it is necessary also to review the relevant provisions of the Medical Assessment Guidelines and Permanent Impairment Guidelines, referred to above.

Medical Assessment Guidelines

29. The Medical Assessment Guidelines set out the procedures and related matters applicable to assessments of medical disputes in accordance with Pt 3.4, see generally MAG cl 2.1. MAG chapter 14 deals with further assessment and review applications, including the form, timing and referral of applications, the material that must be considered when determining a further assessment application by a party and similar matters.

30. In particular, the concept of “material effect” referred to in s 62(1A) is relevantly defined in MAG cl 14.6 as follows:

“14.6 For the purposes of section 62(1A) the word ‘material’ includes that it is relevant and capable of altering the outcome of a dispute about:

…

14.6.3 permanent impairment, from ‘not greater than 10% whole person impairment’ to ‘greater than 10% whole person impairment’ or vice-versa.”

31. MAG cl 14.7 allows the proper officer to dismiss an application for a further assessment if not satisfied that the additional relevant information about the injury would have a “material effect” on the outcome of the application. This formulation has been held to misstate the question about which the proper officer must be satisfied: Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [81]; 66 MVR 69.

32. Finally, MAG cl 14.8 imposes an obligation on the proper officer to provide the parties with “brief written reasons for the decision” as to whether or not to refer the dispute for further assessment.

33. It can be noted here that the formal submissions made by NRMA included the submission that the MAG were unlawful and invalid, insofar as they proceeded on the basis that the proper officer had a discretion whether or not to refer a medical dispute for further assessment. In particular, it was said that cll 14.6-14.8 were invalid on this basis. The submission was premised on a construction of s 62 to the effect that the proper officer did not have power to refuse to arrange for the referral of a dispute for further assessment. The submission was more fully elaborated in a schedule to NRMA’s written submissions, but was not otherwise the subject of argument before me.

Permanent Impairment Guidelines

34. The Permanent Impairment Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from an injury caused by a motor accident, in accordance with s 133(2)(a): PIG cl 1.1.

35. The PIG deal with causation as part of the assessment process as follows:

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

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

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

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

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

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

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

36. The assessment of permanent impairment where there is impairment which pre-dates the accident in question is the subject of PIG cll 1.31-1.33, which are as follows:

“1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

1.32 The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre‑existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’ Refer to clause 1.218 for the approach to a pre-existing psychiatric impairment.

1.33 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”

37. The question of how to address inconsistency in information available to a medical assessor is dealt with, to a limited extent, in PIG cl 1.41, which is in the following terms:

“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.”

38. This passage indicates that the clinical findings, the information obtained from medical records, the history given by the injured person, and the consistency between them, are all likely to be important in reaching a properly informed assessment of permanent impairment caused by the accident in question in accordance with the PIG, whatever type or region of impairment is being assessed.

39. A comprehensive and accurate history and all relevant records are expressly identified as essential foundations for a properly informed assessment of impairment of the spine, including the cervical region, under the PIG in cl 1.120. That clause provides:

“The assessment should include a comprehensive accurate history, a review of all relevant records available at the assessment, a comprehensive description of the individual’s current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. …” (emphasis added).

40. The importance of the claimant’s history is also emphasised in Figure 1 on page 35 of the PIG.

41. How the information contained in a comprehensive and accurate history, and derived from all relevant records available and from a clinical examination, is to be taken into account in arriving at a properly based assessment of permanent impairment is, however, a matter for the medical assessor, applying the PIG, his or her medical expertise, and “non-medical informed judgment”.

Medical Assessor Pascall’s assessment certificate of 21 February 2017

42. In order to understand the basis for NRMA’s application for a further assessment and the proper officer’s reasons for refusing the application, it is also necessary to review the original assessment made by Medical Assessor Pascall on 7 February 2017 and contained in the certificate issued on 21 February 2017.

43. Medical Assessor Pascall’s certificate of 21 February 2017 was as follows:

“The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%:

• Cervical spine – musculoligamentous/soft tissue injury

• Right shoulder – musculoligamentous strain/soft tissue injury

• Left shoulder – musculoligamentous strain/soft tissue injury

• Left wrist – soft tissue injury”

44. It can be noted that this certificate is not entirely consistent with the findings in the reasons that accompanied the certificate. In particular, in the table on p 16 of the reasons, the “%WPI due to motor accident” assessed for the left wrist was 0%. The total “%WPI due to motor accident” was 11%, made up of cervical spine 5%, right shoulder 4% and left shoulder 2%. It appears it would have been more accurate to have left out this reference to the left wrist in the certificate.

45. Medical Assessor Pascall’s certificate was supported by a 17 page statement of reasons. These included most relevantly:

1. her identification that the following injuries were to be assessed:

“• Cervical spine – musculoligamentous/soft tissue injury

• Right shoulder – musculoligamentous strain/soft tissue injury

• Left shoulder – musculoligamentous strain/soft tissue injury

• Left wrist – traumatic carpal tunnel syndrome/soft tissue injury”;

2. under the heading “History as Given by the Injured person”: details of Mr Jammal’s Multiple Sclerosis; fractures of various bones; and, in relation to his neck and shoulders, the following:

“He denies any previous neck pain, prior to this motor vehicle accident. He did not suffer from neck stiffness. He also denies any previous shoulder problem, of either shoulder.…”

3. under the heading “History of Symptoms and Treatment Following the Motor Accident”, the following was recorded:

“Mr Jammal told me of immediate left wrist pain and bleeding at the wrist because of a small laceration. He started to feel neck pain and shoulder pain soon after the accident, after parking his car and getting out of it. He states that the palm of his left hand was numb at that stage, and that the centre of his back, between his shoulder blades, was hurting as well.

Mr Jammal saw his GP, Dr Nosir within a day or so of the accident. His hand was in pain and his fingers were slightly curled, he could not straighten them fully. The ultrasound investigation he had some weeks later showed swelling in his tendons [these were tendons to the thumb] caused by the blow to the hand. Dr Nosir, gave him Panadol Osteo and Panadol.”

4. under the heading “Current Symptoms”, Mr Jammal’s complaints were said to include that:

“Mr Jammal complains of pain in the whole neck and that it radiates to the bottom of his scapula and shoots down his back. There is a lot of neck pain. Pulling his neck, like the physiotherapist did with him, gives him relief for 1 to 2 days. …

He puts something under his neck to support it, like the contour of a couch, and tries to push his head up which seems to ease the pain for him. His neck is not normal, he said. …

He still has shoulder pain, in both shoulders, and it is also ‘really bad’. He has pain between the shoulders and around the shoulders. He added that it was not normal pain, that it shoots down his spine as well as being in his shoulders. When I pointed out to him that moving his shoulder should not involve muscles lower down, he said that it was because his shoulder movement involves his whole body.

He can get his shoulders to about 90° flexion and no more. When I asked him about abduction, he said he ‘wouldn’t do it’ because it was too painful.

Both shoulders ‘crack’ if he retracts his shoulder blades [he demonstrated that]. He feels pain under both scapulae as well as pain across the top of the shoulders.”

5. the findings on clinical examination, which were set out in some detail on pages 5 to 7 of her reasons. It can be noted here that flexion of the right and left shoulders was measured by the assessor at 110° and 130°, respectively, and abduction of the right and left shoulders was measured at 80° and 110°, respectively. In addition, under the subheading “Consistency of Presentation”, the medical assessor noted:

“Mr Jammal’s upper arm girth does not indicate the lack of movement or lack of use he wished to portray of the right upper arm/shoulder. …”

6. under the heading “Summary of Relevant Documentation”, there is a lengthy summary of a number of documents and in relation to Dr Nosir’s material the following appears:

“Dr Nosir’s, general practitioner, medical files includes reports from treating doctors and pathology results but no file notes that Dr Nosir himself recorded other than the Cover Sheet which is dated 2011. As Mr Jammal told me he was often seeing Dr Nosir about his MS, I would have expected a large quantity of file notes.

Although Dr Nosir’s notes of consultation are not included, his referral letters to doctors, such as Dr Dowla, neurologist, are included. In the letter dated 23 October 2009 he wrote that Mr Jammal was suffering ‘tingling and numbness in the L upper and lower limbs’. It is evident that Mr Jammal’s symptoms of left hand numbness probably dates from 2009 and most probably is associated with his MS.”

7. under the heading “Diagnosis and Causation”, the following material was included:

1. a discussion of why the medical assessor dismissed the diagnosis of a traumatic carpal tunnel syndrome or any carpal tunnel syndrome in the left-hand, because it was:

“something that has existed for many years, whether intermittently or constantly since 2009, and therefore not a consequence of the motor vehicle accident.”

2. in relation to the neck and shoulders, the following was stated:

“Mr Jammal did suffer a musculoligamentous type of injury (whiplash) to the cervicothoracic region from the motor vehicle accident even if the pain and stiffness had a slow onset. …

The complaint of the pain radiating from the neck to the lower lumbar region is not explicable through known accepted medical pathways or association with the cervicothoracic region.

…

Although I am not able to provide a specific diagnosis for this problem in both shoulders I have no reason to assume it is not related to the motor vehicle accident. A soft tissue injury is the most reasonable explanation for this complaint. The usual soft tissues involved are the muscles, and therefore a musculoligamentous strain is reasonable.”

8. under the heading “Pre-existing/subsequent impairment”, the comments included:

“… The apparent deterioration in movements that require him to raise his arms (flexion and abduction for the right shoulder, abduction for the left shoulder) accompanied by symptom magnification with non-pathological complaints, makes me doubt the extent of impairment of flexion and abduction that now exists.

I cannot attribute this to impairment arising because of a cervical injury. In January 2016 the cervical spine had greater clinical signs and symptoms than it does at this time, that is, it was worse clinically than it is now, (although Mr Jammal claims he is in greater pain) yet the level of impairment of the right shoulder has increased. It appears to be a pain-dependent behaviour and is not a true representation of the functional capacity of the shoulders.

…

The deterioration of the shoulder movements and elevation is not a consequence of a recovering injury. It is not likely there is a pathology that has deteriorated over the years. There is substantial symptom magnification, pain related behaviour and non-pathological based symptoms. …”

9. her conclusion that the “Final percentage permanent impairment” was 11%, based on there being a 5% WPI due to the motor accident for the cervical spine, 4% for the right shoulder and 2% for the left shoulder, after allowing 3% WPI for pre-existing or subsequent causes in respect of the right shoulder and 2% in respect of the left. There was no deduction for pre-existing or subsequent causes in respect of the cervical spine.

NRMA’s application for further assessment of a permanent impairment dispute

46. NRMA’s application for further assessment was dated 8 June 2018. The reason stated for the further assessment was:

“There is additional relevant information about the injury or injuries sustained in the motor vehicle accident and this additional information is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment.”

47. The documents in support of the application were NRMA’s submissions, Medical Assessor Pascall’s certificate and the clinical records of NAS Advanced Medical Centre, especially those of Dr Nosir.

48. NRMA submitted, in substance, that the clinical records of Dr Nosir, which Medical Assessor Pascall had noted were not available to her, were “additional relevant information” capable of having a material effect on the outcome of the previous assessment. This was because, among other things, those records showed a history of cervical spine and shoulder symptoms prior to the subject accident, which contradicted Mr Jammal’s history denying any prior pain, stiffness or problems in those areas, upon which the Assessor had relied in reaching her conclusion as to causation of 11% WPI.

49. In summary, NRMA contended that the additional relevant information was capable of having a material effect on the whole person impairment assessment of the claimant, in particular as to whether the injuries were caused as a result of conditions unrelated to the accident. NRMA also submitted that the claimant’s alleged injuries did not exceed the 10% WPI threshold.

Refusal of NRMA’s application for further medical assessment refused

50. Ms Elliott, who was the “proper officer” for these purposes, refused the NRMA’s application for referral for further medical assessment. As required by MAG cl 14.8, she provided written reasons for her decision.

51. These reasons for decision are the focus of NRMA’s application to set aside the decision refusing the application for a further medical assessment.

Grounds for setting aside the refusal decision

52. NRMA seeks to have the proper officer’s decision set aside on three grounds, in addition to the “formal” grounds, which NRMA concedes must be decided against it by this Court. The three grounds can be adequately summarised for present purposes as follows:

1. failure to provide adequate reasons;

2. failure to address a substantial argument raised in NRMA’s submissions, namely whether the additional relevant information was capable of having a material effect on the outcome of the previous assessment because it indicated that the whole person impairment as previously assessed was not caused by the accident;

3. wrongly imposing a requirement that there must first be “clinical examination findings” available in the additional relevant information before that information could be capable of having a material effect on the outcome of the previous assessment.

53. Each ground was said to involve an error of law on the face of the record, a jurisdictional error or a denial of procedural fairness.

54. No point was taken as to what constituted the “record” in the present case and submissions on all the grounds proceeded on the basis that the proper officer’s reasons were part of the record. In these circumstances and given that the errors were also characterised as a denial of procedural fairness or jurisdictional error, it is not necessary to consider whether the approach adopted by the parties in relation to the record was correct, having regard to s 69(5) of the Supreme Court Act and Craig v South Australia (1995) 184 CLR 163 at 180-183; [1995] HCA 58 (Craig).

55. Since determining grounds two and three will involve a consideration of the proper officer’s reasons, I shall deal with those grounds first. It will only be necessary to deal with the first ground concerning the adequacy of the proper officer’s reasons if neither of the second or third grounds is made out.

Second ground – failure to address a substantial argument clearly raised

56. The second ground was that the proper officer failed to address a substantial argument clearly raised on NRMA’s application for further assessment. This was said to be a denial of procedural fairness, an error of law on the face of the record and a jurisdictional error.

Second ground – submissions

57. In support of ground 2, NRMA submitted that the proper officer denied procedural fairness because she failed to deal with an important aspect of its case and to respond to a substantial, clearly articulated argument made on the insurer’s behalf, relying on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; 77 ALJR 1088.

58. The argument, to which it was contended the proper officer had not responded, was, in substance, that:

1. the additional relevant information, the clinical records of NAS Advanced Medical Centre and Dr Nosir, showed a history of cervical spine and shoulder symptoms prior to the accident;

2. this information was inconsistent with the relevant history given by Mr Jammal and called into question whether the injuries to those regions were caused by the accident;

3. thus, the additional relevant information was capable of having a material effect on the outcome of the previous assessment of WPI percentages for those regions found to have been caused by the accident, based, at least in part, on Mr Jammal’s history.

59. NRMA submitted that the proper officer had accepted that Dr Nosir’s clinical records were “additional relevant information”, but had nonetheless rejected the application on the basis that the information was not capable of having the relevant effect. This was said to have occurred because the causation argument was not addressed, even though it had been clearly articulated in NRMA’s submissions accompanying the application for a further referral. The proper officer had not addressed the causation argument in any adequate or substantive way because she had impermissibly focused only upon whether there was objective evidence or clinical examination findings concerning the cervical spine and shoulder in the additional relevant material.

60. Mr Jammal submitted that the proper officer dealt with the shoulder and cervical spine conditions and identified that, even if the pre-existing conditions were assumed to be of a type and character as suggested by NRMA, the additional relevant information did not demonstrate that, on the apportionment exercise, there would be any apportioned deduction for pre-existing conditions under the applying guidelines.

61. It was also submitted on Mr Jammal’s behalf that the causation submissions put to the proper officer were not concerned with a “primary question of causation, but were concerned, still in the causation spectrum, with pre-existing conditions and apportionment under the applying guidelines.” In addition, it was submitted that, if the accurate history was what was in the clinical records, there would be no apportionment under the guidelines in respect of that information and, therefore, it was not capable of having a material effect on the outcome of the previous assessment. Accordingly, it was submitted, that the proper officer engaged with, and dealt with, the submissions that were put to her.

59. In oral submissions, Mr Romaniuk also referred to Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480 at [104] to [106]; 66 MVR 69 (Henderson) and noted the Court of Appeal’s comments concerning the nature of the information to which s 62 of the MAC Act is directed and the nature of exercise involved. Reference was also made to the decision in Jubb v Insurance Australia Ltd [2016] NSWCA 153 at [32]-[34]; 76 MVR 228 (Jubb).

60. In reply, NRMA submitted that its application for a further assessment relied upon both apportionment and causation. Mr Robinson of Senior Counsel, with whom Dr Lucy appeared for NRMA, drew attention to various portions of NRMA’s submissions on the application for further assessment, which it contended squarely raised a primary question of causation, in addition to the question of apportionment. The error was said to be that the proper officer had not addressed the causation argument.

Second ground – consideration

64. If, on a proper reading of NRMA’s application for further assessment and, in particular, its submissions supporting that application, there was a clearly articulated, substantial argument that the proper officer did not address in her reasons, then this would be an error which rendered her decision liable to be set aside: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] and [25] (Gummow and Callinan JJ), [88] (Kirby J); (2003) 197 ALR 389; 77 ALJR 1088; Ali v AAI Limited [2016] NSWCA 110 at [66] (Basten JA, Leeming and Simpson JJA agreeing); 75 MVR 502.

65. Thus, there are essentially two issues to be determined in relation to this ground:

1. whether NRMA articulated clearly, in its application and submissions in relation to a further assessment, a substantial argument that the additional, relevant information, which was inconsistent with the history given by Mr Jammal, was capable of having a material effect on the outcome of the previous assessment because it could lead, on a further assessment, to a different conclusion concerning causation of the injuries and resulting WPI percentages (the Causation Argument);

2. if so, whether the proper officer addressed the Causation Argument in her reasons.

Did NRMA clearly articulate the Causation Argument?

66. As to the first issue, in section 7 of the application form, in response to the question “What aspects of this injury are in dispute?”, NRMA identified two aspects of the soft tissue injuries to the cervical spine, the right shoulder and the left shoulder that it was disputing, namely “[c]ausation and degree of permanent impairment”.

67. Thus, it was clear that NRMA was not seeking to challenge just the degree of permanent impairment assessed. NRMA was also seeking to raise “a primary question of causation”, to use the expression in Mr Jammal’s written submissions (par 13).

68. In section 1 of NRMA’s submissions accompanying the application, the further assessment was sought “of the claimant’s alleged cervical spine, right shoulder and left shoulder injuries”.

69. In the last two paragraphs of section 2, NRMA identified the “additional relevant information” upon which it relied as that contained in the clinical records of NAS Advanced Medical Centre, especially those of Dr Nosir. The general argument was then advanced in the following terms:

1. Dr Nosir’s clinical notes “show a history of cervical spine and shoulder symptoms prior to the subject [accidents]”;

2. this history was “relevant as no deductions were made for pre-existing cervical spine and shoulder conditions on account of the medical evidence not supporting same and the claimant denying any history of pain in those areas”;

3. Dr Nosir’s clinical notes raised “a question of causation with respect to the shoulder and cervical spine injuries”; and

4. the additional relevant information in the clinical notes was “capable of having a material effect on the outcome of the previous assessment”.

70. NRMA then gave specific details in support of its argument, dealing with the cervical spine and the shoulders separately, in sections 3.1 and 3.2 respectively. As to the cervical spine, NRMA submitted in section 3.1 that:

1. Mr Jammal had advised Medical Assessor Pascall that “he had no history of neck pain or stiffness before the accident”;

2. Dr Nosir’s notes “show [Mr Jammal] attended for a consultation on 12 February 2003 for neck stiffness … had a decreased range of movement in his neck on 10 January 2012, back pain radiating to his neck on 1 February 2012, neck stiffness on 18 February 2012, neck pain on 2 September 2014 and was counselled on neck exercises and neck support pillows on 7 October 2014, 14 October 2014, 21 October 2014, 28 October 2014 and 13 November 2014 by his GP as a result of his neck pain. [Mr Jammal] also attended on [a] physiotherapist, for same”;

3. this was “significant as [it] shows [Mr Jammal] complained of neck pain, as recently as three months before the subject accident, contrary to the history provided to Assessor Pascall”.

71. As to the shoulders, NRMA submitted in section 3.2 that:

1. Mr Jammal had “similarly provided a history of nil previous shoulder problems”;

2. “[a]lthough there was no evidence of shoulder pathology in either shoulder, Assessor Pascall stated ‘I have no reason to assume it is not related to the motor vehicle accident’ on the basis [Mr Jammal] demonstrated restricted movements and complained of pain”;

3. “Dr Nosir’s notes now show [Mr Jammal] complained of right shoulder stiffness during a consult on 28 December 2011. It appears he also sought treatment for an aggravation of his right shoulder symptoms in early 2013 from [the physiotherapist].”

4. “there is no mention of [Mr Jammal’s] alleged shoulder injuries to his treating doctor until 29 September 2016 …. [Mr Jammal’s] alleged shoulder injuries were not included in the medical certificate completed by Dr Nosir dated 2 March 2015 …”

5. “[c]omplaints of the shoulder injury in the clinical records before 29 September 2016 are limited to the notes of [the physiotherapist] who only records a left shoulder injury. However, it is not clear whether the treatment relates to the subject accident or [Mr Jammal’s] prior shoulder conditions. In this respect, [NRMA] notes that records show [the physiotherapist] last completed a physiotherapy management plan for the subject accident in May 2015 for the neck and left shoulder…. [After February 2016, the physiotherapist] treats [Mr Jammal] under the National Disability Insurance Scheme for various injuries, including neck, shoulder and lower back.”

6. In light of that material, NRMA submitted that Mr Jammal “did not sustain shoulder injuries as a result of the subject accident and that any ongoing symptoms are not related to the subject accident”.

72. NRMA’s argument is summarised in section 4 where it is submitted that the information in the NAS Advanced Medical Centre records “may have a material effect on the whole person impairment assessment of [Mr Jammal’s] physical injuries” and that the left shoulder, right shoulder and cervical spine injuries “were caused as a result of conditions unrelated to the accident”.

73. On a fair reading of the NRMA’s submission, I accept that an argument was articulated to the effect that:

1. the assessment that Mr Jammal suffered 11% WPI as a result of the accident in question was dependent, in part, upon the history of no prior neck or shoulder symptoms given by Mr Jammal being comprehensive and accurate;

2. the information in the NAS Advanced Medical Centre clinical records, especially those of Dr Nosir, which had not been available to the Medical Assessor, contradicted the history given by Mr Jammal to the Assessor and provided substantial grounds to conclude that Mr Jammal’s history was neither comprehensive nor accurate;

3. in these circumstances, the additional, relevant information in the NAS Advanced Medical Centre clinical notes was capable of having a material effect on the outcome of the previous assessment in so far as the Medical Assessor concluded that 11% WPI was caused by the accident based on, among other things, Mr Jammal’s history.

74. To this extent, I am satisfied that NRMA did clearly articulate the Causation Argument in its application and submissions.

Did the proper officer address the Causation Argument in her reasons?

75. It is necessary now to turn to consider whether the proper officer addressed that argument in her reasons for her determination to refuse the application for further assessment.

76. The proper officer’s reasons of 27 July 2018 (Reasons) set out her decision and relevant background at pars 1-8.

77. After reciting the parties’ submissions at Reasons pars 9-12, the proper officer accepted that the NAS Advanced Medical Centre clinical notes were “additional relevant information”: Reasons par 13. In that paragraph, she also stated her conclusion that she “is not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment”. At this point, the proper officer does not provide any reasons for that conclusion.

78. In pars 14-28, the proper officer considered Mr Jammal’s cervical spine. Paragraphs 14-17 dealt with hand numbness which is not relevant to the present matter. Paragraphs 18-20 recorded the parties’ submissions. The proper officer’s relevant reasoning is found at paragraphs 21-28 and can be summarised as follows:

1. As a result of observed asymmetry of movement on examination of the cervical spine, the medical assessor “assessed DRE Category II, or 5% WPI, for the cervical spine”: Reasons par 21.

2. PIG cl 1.31, in effect, requires there to be “objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident” which allows its WPI value to be calculated, if that impairment is to be taken into account. Similarly, using the approach to apportionment for pre-existing impairment under PIG cl 1.32 requires “accurate information and data on both impairments”: Reasons pars 22 and 23.

3. None of the NAS Advanced Medical Centre clinical notes upon which NRMA relied indicated that Mr Jammal displayed any findings on cervical examination that could result in a pre-existing cervical spine impairment being classified higher than DRE category I, or 0% WPI: Reasons par 24.

4. In order to be capable of changing the outcome of the previous assessment from “greater than 10% WPI” to “not greater than 10% WPI”, the pre-existing impairment would need to be assessed as DRE Cervicothoracic Category II impairment (5% WPI): Reasons par 25.

5. There is an absence of such clinical examination findings in the clinical notes relied upon. In the absence of any clinical examination findings regarding Mr Jammal’s previous cervical spine impairment that would indicate his pre-existing impairment could be classified as DRE category II or higher, the proper officer could not be satisfied the additional relevant information was such as to be capable of having a material effect on the outcome of the previous assessment: Reasons pars26-28.

79. From her reasons in relation to the cervical spine, it can be seen that the proper officer’s focus was the absence of “clinical examination findings” in the clinical notes. There was no consideration of whether the clinical notes contradicted or substantially undermined Mr Jammal’s history that he had no previous neck pain or stiffness prior to the motor vehicle accident. Nor did she address the question of whether, if Mr Jammal’s history in relation to his cervical spine was not comprehensive and accurate, the Assessor’s finding in relation to causation of 5% WPI in respect of the cervical spine were unsupported.

80. The proper officer appears to have proceeded entirely by reference to PIG cll 1.31 and 1.32 (quoted above). It is correct that cl 1.31 states:

“If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.”

81. Clauses 1.31 and 1.32 do not, however, relieve the proper officer from the obligation to consider and address in her reasons the Causation Argument put by NRMA in relation to Mr Jammal’s cervical spine.

82. This is because cll 1.31 and 1.32 cannot be considered in isolation and out of their context in the whole of the PIG. Other clauses relevant in a case such as the present include cll 1.5-1.7 dealing with causation, cl 1.41 dealing with how inconsistences in the material available to the assessor should be resolved, and cl 1.120, which specifies what is required for an assessment of the cervical spine in accordance with the guidelines. Properly understood, the provisions of cll 1.31 and 1.32 are to be applied as part of the PIG as a whole, when the requirements of other PIG clauses such as cll 1.5-7, 1.41 and 1.120 have also been addressed and applied.

83. PIG cll 1.5-1.7 give guidance as to how causation is to be determined and note that it “involves a medical decision and a non-medical informed judgement”: cl 1.6. Causation is not simply determined by the application of cll 1.31 and 1.32. It often turns upon the claimant’s history of injuries and symptoms prior to the accident in question.

84. Clause 1.41 requires that, where there are inconsistencies in the material available to the Medical Assessor, they must be brought to the claimant’s attention and:

“The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

85. In the present case, a Medical Assessor applying this clause in the light of the additional relevant information would be required to attempt to resolve the inconsistencies between Mr Jammal’s history and the material in Dr Nosir’s notes by having Mr Jammal respond to the inconsistent material during an assessment. How Mr Jammal might respond would not be a matter upon which the proper officer could speculate in determining the application for a further assessment. The proper officer did not address the aspect of NRMA’s argument concerning the inconsistency between Mr Jammal’s history and Dr Nosir’s notes.

86. Further, PIG cl 1.120 establishes that, for the proper assessment of the cervical spine, there should be “a comprehensive accurate history”, as well as a review of all relevant records available at the assessment, a comprehensive description of the individual’s current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. It follows that the absence of a comprehensive accurate history undermines the reliability of any opinion of the Medical Assessor, especially concerning causation. NRMA’s Causation Argument was, in essence, that the history available to Medical Assessor Pascall at the time of her relevant assessment was not comprehensive or accurate, as demonstrated by the additional relevant information. The proper officer did not address these issues that arise out of the application of cl 1.120 when considering NRMA’s application.

87. The proper officer’s reasons demonstrate that focusing almost exclusively on PIG cll 1.31 and 1.32, and not considering to any significant extent the requirements of other relevant clauses of the PIG, caused her to fail to consider the Causation Argument, in relation to the cervical spine, that NRMA advanced in its submissions.

88. This, by itself, is sufficient to find that the error, which is the subject of ground 2, has been made out. For completeness, I shall also consider whether the Causation Argument in relation to the shoulder impairment has been addressed by the proper officer.

89. In relation to Mr Jammal’s shoulders, the proper officer’s reasons can be summarised as follows:

1. Some of the parties’ submissions were summarised in Reasons pars 29-32.

2. The proper officer agreed with Mr Jammal’s submission that his report of bilateral shoulder symptoms to the Assessor in January 2016 pre-dated the clinical notes of Dr Nosir, and that the doctor’s 2 March 2015 certificate had been previously considered by the Assessor when she determined that the shoulder impairment was caused by the accident: Reasons par 33.

3. The proper officer then summarised parts of the Medical Assessor’s determination where various matters concerning Mr Jammal’s shoulders were considered: Reasons pars 34-36. This included, for example, at Reasons par 35:

“In determining diagnosis and causation of the shoulder injuries Assessor Pascall indicated,… That, while she was unable to provide a specific diagnosis for the shoulders, there was no reason to assume it was not related to the subject accident. She stated that ‘whether the impairment comes from local shoulder pathology or from referred pain from the cervical spine injury, the impairment is determined on the function of the joint rather than the diagnosis.’” (emphasis added)

4. She then concluded that she was “not satisfied the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment”: Reasons par 37. This appears to have been on the basis that some, at least, of what was in the additional relevant information had already been addressed by the Medical Assessor.

5. Next, the proper officer noted NRMA’s submission that “any ongoing impairment is not related to the accident” and the fact that the Assessor had obtained from Mr Jammal a history of no previous shoulder problems and “perfect” right arm movement, the observed inconsistency in the right arm presentation at the time of assessment, as well as NRMA’s submissions concerning Dr Nosir’s notes in relation to right shoulder symptoms in 2011 and 2013: Reasons pars 38-40.

6. The proper officer then observed that the most recent right shoulder complaints predated the accident by about two years and concluded that “[a]s such, it does not appear to provide objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, as required by Clause 1.31 of the [PIG], in order for any apportionment for pre-existing impairment to be made”: Reasons par 41.

7. In addition, the proper officer observed that the Medical Assessor had already dealt with inconsistency in relation to the shoulders and allowed deductions of 3% WPI for the right shoulder and 2% for the left: Reasons par 42.

8. On those bases, she concluded that she was not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment: Reasons par 43.

90. The proper officer focused on cl 1.31, the absence of “objective evidence … as required by clause 1.31 …” and the Medical Assessor’s having considered the inconsistency in “presentation” of the shoulders, to conclude that she was not satisfied that the additional relevant information had the relevant effect: Reasons pars 41-43. She did not come to grips with NRMA’s submission to the effect that, since the history given by Mr Jammal was inconsistent with the additional relevant information, any finding as to causation that was based on that history was potentially flawed and thus the additional relevant information was capable of having a material effect on the outcome of the previous assessment in relation to causation.

91. The Medical Assessor’s statement that there was “no reason to assume [the problem in both shoulders] [wa]s not related to the motor vehicle accident” was understandable in the light of Mr Jammal’s history of no previous shoulder problems and the other material before the Assessor at the previous assessment. However, the proper officer failed to consider whether the additional relevant information called into question the comprehensiveness and accuracy of Mr Jammal’s history and whether, as a consequence, the information was capable of having a material effect on the outcome of the previous assessment, especially as to causation. It was not the proper officer’s role to guess what Mr Jammal might say in response to a Medical Assessor’s questions concerning the additional relevant information and the history he previously gave. Once again, on a fair reading of the proper officer’s reasons in relation to the shoulders, she appears to have focused upon cll 1.31 and 1.32 and ignored cll 1.5-7 and cl 1.41 and the necessity for a Medical Assessor to obtain an accurate and comprehensive history from a claimant. As a result, she failed to consider NRMA’s Causation Argument.

90. For these reasons, I am satisfied that the proper officer fell into error by failing to consider a clearly articulated, substantial argument put by NRMA in support of its application for a further assessment in relation to both the cervical spine and both shoulders. This was, at least, a denial of procedural fairness, as explained in the authorities.

91. Accordingly, the decision of the proper officer to refuse the application for a further assessment is liable to be set aside.

92. It was not submitted that there were any significant factors why, if the Court determined that an error had been made, the decision should not be set aside. It does not appear to me that there are any considerations of substance which would militate against such relief being granted. Consequently, I propose to order that the proper officer’s decision of 27 July 2018 to dismiss NRMA’s application for further medical assessment be set aside, together with appropriate consequential orders.

93. Having reached this conclusion in respect of ground 2, it is not strictly necessary to consider the other grounds. Nonetheless, for the sake of completeness, I shall address the other grounds briefly.

Third ground

96. NRMA’s third ground was to the effect that the proper officer misunderstood her powers and thus there was a constructive failure to exercise her jurisdiction, as well as this amounting to an error of law on the face of the record. This was said to be so because the proper officer:

1. wrongly imposed a requirement that there must first be “clinical examination findings” available in the additional relevant information before that information could be capable of having a material effect on the outcome of the previous assessment; and

2. determined that there were no such findings.

97. NRMA also submitted that it was not for the proper officer to make the assessment as to whether there was a material effect as to pre-existing impairment. Rather, she only had to assess the “capability” of the additional relevant information to have a material effect on the outcome of the previous assessment. She failed to do this, instead engaging in an assessment of the merits of the medical dispute. Thus, she impermissibly took on the role of the medical assessor in making her determination.

98. Mr Jammal submitted that the proper officer was only dealing with:

“a merits factual proposition relating to the operation of the apportionment mechanism in clauses 1.31 and 1.32 by noting, in an entirely orthodox way, that there was no evidence before the Proper Officer of findings at a clinical examination which would have justified a conclusion, for the purposes of clauses 1.31 and 1.32 of the applying guidelines, that the pre-existing whole person impairment would be rated as anything other than DRE1 (which is 0% whole person impairment), and hence, factually, and logically, there could not be a deduction for the pre-existing condition.”

99. As Mr Jammal’s submissions suggest, the proper officer’s reasons for refusing the application for further assessment appear to be based on the conclusions that the additional relevant information did not meet the description of “objective evidence of the pre-existing symptomatic permanent impairment” or reliable “clinical information on the pre‑existing condition” in PIG cll 1.31 and 1.32.

100. The proper officer’s reasons also included passages such as the following, at Reasons pars 25, 28 and 41:

“25. In order to be capable of changing the outcome of the previous assessment from ‘greater than 10%WPI’ to ‘not greater than 10% WPI’ the pre-existing impairment would need to be assessed as DRE Cervicothoracic Category II impairment (5%). …

…

28. In the absence of any clinical examination findings regarding Mr Jammal’s previous cervical spine impairment that would indicate his pre-existing impairment could be classified as DRE Category II or higher, I cannot be satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment.

…

41. … As such, it does not appear to provide objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, as required by Clause 1.31 of the Permanent Impairment Guidelines, in order for any apportionment for pre-existing impairment to be made.”

101. A fair reading of the proper officer’s reasons as a whole, including those passages, suggests that she did one of two things:

1. either she did not address the argument that the additional relevant information was significant, not only because it was “objective evidence” within cl 1.31, but also because it was capable of having a material effect on the outcome of the previous assessment on the basis that it called into question Mr Jammal’s history upon which that previous assessment had been made; or

2. she understood her function under s 62 of the MAC Act, in a case such as the present, as being limited to determining whether the additional relevant information was “objective evidence” of the type referred to in cl 1.31 and whether, as such, it would, in the circumstances of the particular case, have a “material” effect, as defined in MAG cl 14.6.3, on the outcome of the previous assessment.

102. If the proper officer did what is in subpar (1), then by not addressing an argument articulated in NRMA’s submission she fell into error as contended under ground 2, which has already been discussed.

103. If the proper officer understood her function as set out in subpar (2), this involved her adopting an overly narrow understanding of her role under s 62(1)(a) and (1A) for the following reasons.

104. Section 62 impliedly confers power on the proper officer to refer a dispute to a medical assessor on a ground identified in s 62(1)(a), if the condition set out in subs (1A) is satisfied: Rodger v De Gelder & Anor (2011) 80 NSWLR 594 at [70] (Beazley JA, McColl and Macfarlan JJA agreeing); [2011] NSWCA 97 (De Gelder). The proper officer’s decision is a gateway or condition precedent to the carrying out of a further medical assessment: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [5] (Basten JA); 67 MVR 322 (Miller).

105. The proper officer’s decision under s 62(1)(a) and (1A) involves, first, identification of the additional information relied upon. In relation to a medical assessment, as in the present case, this may include a record of symptoms at a time prior to the accident, a diagnosis of a condition extant prior to the accident, or a particular doctor’s diagnosis or recording of a history: Miller at [7]. Thus, it should be accepted that information that can be “additional relevant information” is not limited to “objective evidence” of the type referred to in cl 1.31 or “clinical examination findings” as referred to in various paragraphs of the proper officer’s reasons.

106. It has already been noted that there was no dispute in the present case that, as the proper officer accepted, the information in the clinical notes of NAS Advanced Medical Centre, especially those of Dr Nosir, was “additional relevant information”.

107. Having identified the additional relevant information, the proper officer is then required to consider “the capacity of the additional information to affect a further medical assessment” (in the words of Macfarlan JA in De Gelder at [113]) or whether it is “capable of having a material effect on the outcome of the previous assessment” (in the words of s 62(1A)). This is a matter for the subjective satisfaction of the proper officer: De Gelder at [113].

108. If not subjectively satisfied that the additional information is such as to be capable of having a material effect on the outcome of the previous assessment, the application is to be refused.

109. The references to “capacity” or being “capable”, in this context, indicate that the proper officer is not required to determine whether the additional information actually would or would not affect the outcome of the previous assessment. What effect the additional information would or does have is a judgement that is to be made by a Medical Assessor, if the proper officer grants the application for a further assessment. The proper officer’s task is different and is designed to exclude from reassessment only those cases where the additional relevant information lacks the capacity to have a “material” effect on the outcome of the previous assessment.

110. Finally, it is true that MAG cl 14.6.3 defines “material” in s 62(1A) as:

“relevant and capable of altering the outcome of a dispute about … permanent impairment, from ‘not greater than 10% whole person impairment’ to ‘greater than 10% whole person impairment’ or vice-versa”.

111. Nonetheless, the wording of the chapeau to cl 14.6 makes clear that this is an inclusive, not an exhaustive, definition. Thus, the definition in cl 14.6.3 does not restrict the capability, which the proper officer must consider, to that specified in cl 14.6.3. The proper officer is required to consider whether the additional relevant information is capable of changing the outcome of the previous assessment materially on other bases, such as a failure to establish causation, where those other bases are raised for consideration. Where the additional relevant information is capable of demonstrating that the complainant’s history was false or not comprehensive and accurate, a causation issue is likely to arise.

112. Accordingly, if the proper officer did consider the Causation Argument, and NRMA’s ground 2 fails, but rejected it because of her overly narrow understanding of her function under s 62 as explained above, her decision is affected by jurisdictional error. Misapprehending or disregarding the nature or limits of functions or powers where jurisdiction is exercised constitutes jurisdictional error: Craig at 177.

113. In a similar situation concerning a refusal to grant a review under s 63 of the MAC Act, Basten JA held in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 at [7]; 81 MVR 249 (Dominice):

“Where the proper officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. …”

114. Consequently, if I am wrong and NRMA should fail on ground 2, ground 3 has been made out and the proper officer’s decision should be set aside and consequential orders made.

First ground

115. NRMA’s first ground concerned the adequacy of the proper officer’s reasons. In the light of my conclusions in relation to grounds 2 and 3, it is unnecessary to consider ground 1. Nonetheless it can be observed that the proper officer’s reasons were detailed and disclosed her process of reasoning more than adequately. As a result, I would not hold that her reasons were inadequate.

Formal grounds

116. As noted above, NRMA also contended in pars 6A and 6B of its amended summons in effect that, contrary to what was held or accepted by the Court of Appeal in De Gelder, Miller, Dominice, Henderson and Jubb, the proper officer’s role under s 62 was merely to arrange for the dispute to be referred to a medical assessor and she had no power to refuse to refer the dispute to a medical assessor, on the basis that she was not satisfied that the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment (or on any other basis).

117. NRMA’s submissions, described as “formal”, were contained in a Schedule to the written submissions. The parties were content for them not to be addressed in oral argument.

118. Being bound by the relevant Court of Appeal decisions and for the reasons given by the Court in those matters, I reject the grounds in pars 6A and 6B in the amended summons.

Orders

119. For the reasons set out above and in the absence of any sufficient reason to refuse discretionary relief, it is appropriate to set aside the proper officer’s decision. When that decision is set aside, it will be necessary for NRMA’s application for further assessment to be considered again. To this end, an order remitting the matter to the second defendant so that the application can be re-determined is appropriate.

120. Although NRMA sought an order preventing Mr Jammal or SIRA from acting on the proper officer’s decision, there was no evidence that they were threatening or proposing to act upon it. In these circumstances, the order sought by NRMA appears to me to be unnecessary.

121. Both parties sought costs, in the event that they were successful. There are no circumstances of which I am aware that would indicate that costs should not follow the event.

122. Accordingly, the Court orders:

1. The decision of the proper officer of the second defendant dated 27 July 2018 refusing the plaintiff’s application under s 62(1)(a) of the Motor Accidents Compensation Act 1999 (NSW) for further medical assessment of the first defendant (the Further Assessment Application) is set aside.

2. The matter of the Further Assessment Application is remitted to the second defendant for re-determination according to law.

3. The first defendant is to pay the plaintiff’s costs of these proceedings as agreed or assessed.

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Decision last updated: 07 June 2019