Insurance Australia Limited T/as NRMA Insurance v Parisi
[2014] NSWSC 1248
•05 September 2014
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Insurance Australia Limited T/as NRMA Insurance v Parisi [2014] NSWSC 1248 Hearing dates: 03.09.2014 Decision date: 05 September 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1) Proceedings dismissed;
(2) The plaintiff to pay the first defendant's costs on the ordinary basis forthwith after they have been agreed or assessed.
Catchwords: ADMINISTRATIVE LAW - judicial review - decision of the proper officer of the Motor Accidents Authority - refusal of application for further medical assessment under s 62 Motor Accidents Compensation Act 1999 (NSW) - whether decision made according to law - whether failure to take into account relevant material Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 58, 60, 61, 62 and 131 Cases Cited: Alvanja v NRMA Insurance (2010) 56 MVR 499;
Buck v Bavone [1976] HCA 24; 135 CLR 110;
Brown v Lewis [2006] NSWCA 87; 65 NSWLR 587;
De Gelder v Rodger [2014] NSWSC 872
Ex Parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416;
Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056; 54 MVR 102;
Glover-Chambers v Motor Accidents Authority of NSW (2010) 55 MVR 44;
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69;
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332;
Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; 240 CLR 611;
Morris Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647;
Murdoch v Davis [2005] NSWCA 466; 44 MVR 415;
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442;
Rodger v De Gelder (2011) 80 NSWLR 594;
SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs (2006) 228 CLR 152;Category: Principal judgment Parties: Insurance Australia Limited t/a NRMA Limited (Plaintiff)
Kaylene Parisi (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)Representation: Counsel: MA Robinson SC with A Poljak (Plaintiff)
SE McCarthy with S Hartford Davis (First Defendant)
Solicitors:
File Number(s): 2014/104411
Judgment
The plaintiff-insurer, by application for judicial review, challenges the legality of a decision of the proper officer of the Motor Accidents Authority refusing its application for referral of the question of the degree of permanent impairment suffered by the claimant-first defendant for further medical assessment under s 62 Motor Accidents Compensation Act 1999 (NSW) (the Act).
The proper officer's decision was made on 12th December 2013.
The motor vehicle accident
The claimant sought damages for injuries suffered on 2nd November 2004. She was injured when the car insured by the insurer collided with the car she was travelling in as a front seat passenger. The accident occurred at the intersection of Macquarie and Bathurst Streets, Liverpool. The driver of her car was turning right at traffic lights with a green arrow when an oncoming vehicle went through the lights and collided with the nearside of the plaintiff's vehicle in a T-bone configuration.
The claimant was taken by ambulance to Liverpool Hospital complaining of neck, abdominal and hip pain.
About four and a half years later on 4th March 2009, the claimant presented to the Emergency Department of Westmead Hospital giving a history of left shoulder and arm pain with numbness in her left hand starting four days earlier. The pain was severe, and did not respond to Endone, a narcotic prescription painkiller. There was no history of any recent trauma, but the claimant told the doctors who examined her at the hospital of her past history of whiplash injury in the car accident. She denied any current neck pain.
An MRI scan of the neck showed a disc protrusion at C6/C7 compressing the left C7 nerve root. The claimant was referred to Professor Dan, a Neurosurgeon, who carried out a further MRI Scan.
The claimant's symptoms worsened on 2nd April 2009, and upon further examination Professor Dan "diagnosed left C7 nerve root impingement secondary to C6/C7 disc protrusion with associated osteophyte" (Court book page 26). He attributed this pathology to the car accident and on 9th April 2009 and carried out a C6/C7 anterior cord decompression and spinal fusion operation.
The preceding history is the matrix of the parties' medical dispute.
Professor Dan's opinion as to causation was supported by a number of other medical specialists from separate disciplines qualified by the claimant's lawyers to provide an opinion for the purpose of her claim, including Dr Neil Berry, General Surgeon, Dr JS Scougall, Orthopaedic Surgeon and Dr John Davis, Occupational Physician. The insurer qualified Dr Mark Burns, an Occupational Physician, and Dr John Cummine, an Orthopaedic Surgeon, to express an opinion for the purpose of the claim. Both agreed with Professor Dan's diagnosis. Both disagreed with his opinion as to causation. Both Dr Burns and Dr Cummine said that the pathology operated on by Professor Dan was not related to the car accident, essentially because of the lack of any ongoing evidence of radiculopathy in contemporaneous clinical material between November 2004 and March 2009. Both recorded their awareness of ongoing complaints of neck and left shoulder pain, and Dr Cummine made note of one presentation on 3rd November 2005 in which "burning of the left middle and right fingers is recorded" (CB 37). I take this to be a reference to a burning pain, not burns. In Dr Cummine's view, the pathology treated by Professor Dan was secondary to osteoarthritis in the cervical spine, unrelated to the motor vehicle accident.
Assessment by Dr Monica Ling
The parties were agreed that the degree of permanent impairment suffered by the claimant is "greater than 10 per cent" (s 131; s 58(1)(d) of the Act) but they disagreed about whether this permanent impairment was "a result of the injury caused by the motor accident". This disagreement, or dispute, was referred to the authority for assessment under Part 3.4 of the Act, s 60.
The parties' medical dispute was allocated to Dr Monica Ling of the Motor Accidents Medical Service for assessment. Dr Ling assessed the plaintiff's permanent impairment as 27 per cent. This included 2 per cent for the injury to her hip. She related the whole of this to the motor accident. She said:
[a]pportionment has not been required as there were not any pre-existing or subsequent impairments (CB p 43).
Her certificate under s 61(1) of the Act "as to 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 per cent" said "the ... injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10 %" (CB page 21).
The reasons of Dr Ling
As required by s 61(9) of the Act Dr Ling set out her reasons for her assessment in a 25 page statement dated 13th December 2012 which was attached to her certificate. She issued a further certificate about the need for domestic assistance which is not relevant to this case.
In her reasons, the medical assessor recorded that she examined the claimant on 16th November 2012 and set out the history as given by the claimant apparently supplemented by reference to some of the documentation with which she had been provided for the purpose of her assessment. I think it apposite to reiterate the following matters recorded by Dr Ling (see CB page 25 and page 26):
...
On 29th November 2014 [the claimant] returned to work. The company doctor diagnosed a whiplash injury of the neck.
In October 2005, she developed electricity type of pain radiating from her neck into her left shoulder and down to her left elbow. Her general practitioner performed a shoulder ultrasound scan which showed bursitis. She did not receive any specific treatment.
...
In March 2009, she presented to a different general practitioner, ... with the same symptoms of neck and left shoulder pain. A repeat ultra sound scan was performed to the left shoulder which was normal.
On 4th March 2009, the pain in the neck and left arm became so severe that she was admitted to Westmead Hospital for one day. MRI of the neck showed protrusion of the disc at C6/C7 level causing compression of the left C nerve root.
This history of severe neck pain given by the claimant is different to the symptoms recorded at Westmead Hospital, which as I have said above, is of an absence of neck pain. This variance was a central part of the insurer's complaint. However, in reviewing the extensive medical documentation with which she had been provided (her review is at CB pages 33 to 37), Dr Ling summarised the Westmead Hospital discharge summary of 4th March 2009 (see CB page 34 and page 82) in the following terms:
Discharge summary from Westmead Hospital (4 March 2009): confirms a history of left shoulder and arm pain and numbness of the left hand over 4 days. Provisional diagnosis was C7, C8 to T1 radiculopathy for which she was referred for MRI scan of the cervical spine, EMG to check for signs of C7 to T1 denervation, and was commenced on Gabapentin. Neurosurgical follow up was arranged,
The medical assessor did not record this statement contained in the discharge summary:
She ... has a history of a previous whiplash injury years ago but has not had any residual effects.
From CB pp 33 to 37, however, it is clear she was aware of all of the material referred to at [9] above.
As I have already said, there was no real dispute about the post surgical condition of the claimant's neck and left arm in the material before Dr Ling. Rather the question was about the causation issue raised by ss 131 and 58(1)(d) of the Act. Dr Ling answered this question favourably to the claimant for the following reasons (CB p 39):
Based on perusal of all the above documentation, it is my opinion that the C6/C7 disc bulge was causally related to the motor vehicle accident on 2 November 2004. There was definite soft tissue whiplash-type neck injury at the time of the accident as corroborated by all her immediate post-accident treating doctors. This would have resulted in accelerated degenerative bony and discal changes in the cervical spine, resulting in the left C7 radiculopathy in 2009. The onset of these degenerative changes is temporally related to the motor vehicle accident in 2004, as immediate post-accident CT scans of the cervical spine did not demonstrate any significant degenerative changes at the C6/C7 level, compared to scans in 2009 which showed the moderate disc bulge and osteophyte at C6/C7. She was completely asymptomatic of any neck or left upper limb symptoms prior to the motor vehicle accident in 2004.
There is a paucity of literature on the topic of whether neck soft tissue whiplash injuries contribute to accelerated cervical spinal disc degenerative changes. However, there is one retrospective study by AJ Hamer that does support this theory of accelerated degenerative spinal disease. Hamer found that cervical disc surgery is required more frequently for those people who have sustained a previous whiplash injury compared to the general population who have never previously sustained a whiplash neck injury. The study also found that those people who required cervical disc injury and had sustained a previous whiplash injury required surgery 10 years earlier than those who had not sustained a previous whiplash injury (see Reference 1).
Reference 1
Hamer AJ et al. Whiplash injury and surgically treated cervical disc disease. Injury 1993; 24(8): 549-550
Insurer's post assessment preparation
After the issue of Dr Ling's certificate and reasons, the insurer instructed lawyers to act. They arranged a further medico-legal consultation, this time with a consultant neurologist, Dr Paul Spira.
His first report is dated 15th May 2013. He received a history from the claimant that after her return to work in 2004 she continued to experience left-sided neck pain radiating to the left upper limb "to a greater extent as time went on" (CB p 71). From his perusal of the general practitioner's records he assumed that the claimant was seen "at a low frequency" there being "no visits between November 2005 and February 2007". Many of the visits related to general health, not the motor vehicle accident. However, the claimant informed him "that nothing changed and she retained the left sided neck and upper arm pains as well as numbness in the index and little finger of her left hand" (CB p 71). He recorded the following history:
On 4 March 2009 [the claimant's] neck and upper limb pain accentuated dramatically for no apparent reason. She informed that the pain had been increasing progressively over time but on that particular day she noted shooting pains into the left upper limb.
Dr Spira accepted ongoing unequivocal, clinical evidence of the claimant having had a left C6-7 radiculopathy with depression of her "triceps jerk on this side". However the examination was "replete with non-organic features". He expressed the following opinion as to causation (CB page 75):
The cervical nerve root compression occurred over 4 years after the motor vehicle accident, given such a long period, I feel that the complaint cannot be regarded as a consequence of the accident. Overall I believe that psychological factors are playing a major role in determining [the claimant's] ongoing symptomatology. (The insurer's emphasis in oral argument.)
Dr Spira seems to have accepted that the car accident produced soft tissue injuries "with the emergence of tension myalgia" (CB page 75). He considered the "non-organic components" referred to above either suggested "embellishment" or were "psychological factors". He accepted that the disc protrusion treated by Professor Dan's surgery produced a whole person impairment of greater than 10 per cent, but not as great as assessed by Dr Ling. He assessed it as 15%.
The insurer's solicitors then obtained the "complete file" of Westmead Hospital relating to the claimant's attendances in March 2009, records from Dr Duggins, staff specialist neurologis at Westmead, (including from his Registrar Dr Sivagnanam) and records from a Dr Yildirim of consultations including those in 2004 and 2005.
In argument emphasis was placed upon the following matters:
(a) The absence of a history of "residual effects" recorded in the discharge summary. This document was available to Dr Ling;
(b) The absence of a complaint of neck pain in the triage record;
(c) The record of examination by a senior resident medical officer. This does not mention current neck pain, but records "no previous history" of the significant radiculopathy represented by left shoulder and arm pain and numbness in the left hand. In particular the doctor recorded "past history of whiplash injury to neck, but denies any current neck pain".
(d) The record of examination by Dr Andrew Duggins who recorded the following:
[Left] upper chest/shoulder pain radiating down lateral [left] upper limb [and] "numbness" of medial arm/forearm [and] lateral [left] hand.
[Previous] neck injury 4 yrs ago - nil surgery; nil residual issues.
It will be recalled that "nil residual issues" is recorded in the discharge summary;
(e) When re-examined by either Dr Duggins or Dr Sivagnanam on 19th March 2009, the claimant gave a "a 2 - 3 week history of cervical back pain radiating down the left shoulder to her finger tips associated with weakness of her left upper limb". I would understand cervical back as a reference to her neck;
(f) Dr Yildrim was consulted on 22nd December 2004, when Dr Lau, the usual GP was on holidays. On that day he recorded, inter alia "whiplash". And on 6th January 2005, he recorded "neck well" and "fit" followed by 3 indecipherable words which may be, as the insurer submitted, "for her duties". I cannot decipher it, but it is common ground, the claimant returned to her usual work not long after the car accident.
Dr Spira's view was sought in relation to these contemporaneous documents, which he detailed in his second report dated 12th September 2013. It is clear from that report that Dr Spira strongly disagrees with Dr Ling's understanding of the significance of her findings on clinical examination, the conclusions she expressed based on them, and her approach to the evaluation of the degree of whole person impairment. Notwithstanding this disagreement his view was that it should be assessed at greater than 10 per cent. He also reviewed, as I have said the contemporaneous material consistently with my summary of it above. He did not think Dr Yildrim's notes of any consequence, although he did not pick up the references to December 2004 and January 2005. But he expressed this view at (CB page 78):
Overall my reading of the additional documentation provided by your office merely reinforces the views I had expressed in my previous report It seems that contemporaneous records indicated that Mrs Parisi had been symptom free over a number of years prior to the activation of her neck pain in either March or April of 2009. I believe that this observation breaks the nexus between the motor vehicle accident and her cervical nerve root compression.
The Insurer's application for further medical assessment
Following receipt of the second report of Dr Spira, the insurer made an application for further assessment under s 62 of the Act on 17th October 2013. It attached the additional material it had obtained and supported the application with written submissions prepared by its solicitor.
The ground of the application was the receipt of additional relevant information about the claimant's injury: s 62(1). Picking up the language of s 62 (1A) the insurer argued that the additional documentation provided "was capable of altering the outcome of the dispute from that certified in the previous assessment in respect of causation and whole person impairment". The insurer argued that the primary clinical material from Westmead Hospital and Dr Yildrim supported "the proposition the claimant was symptom free within a short period" after the accident and "the late onset of symptoms in 2009 were not caused by the initial injury". The submissions emphasised the significant symptoms that apparently started 4 days before the presentation at the hospital on 4th March 2009 and, although a history was given of the whiplash injury "there were no residual effects".
The insurer also argued "the hospital noted the cause of the onset of the symptoms was unknown." (emphasis in the original) By my own consideration of the evidence, I am unsure of the source of this submission. It does not appear to be a direct quote, but is probably based on the discharge summary (which was provided to Dr Ling). Under the heading "Principal Diagnosis", it states:
C7,8 T1 radiculopathy - ? cause
This is not the same thing as "cause unknown". Normally when a question mark is placed before a word its purpose is to indicate there is doubt, or a question, about its accuracy: the natural meaning of "? cause" is "there is a question about the cause of the condition"; or "the cause is in doubt". This is a proposition quite different from a statement that the cause of a condition is unknown. And, in any event the information represented by "? cause" was not "additional" because that material was provided to Dr Ling both directly and by Dr Burns treatment of it, as the proper officer observed.
Dr Yildrim's entry "neck well" certifying her fit for work was said to suggest that the claimant's symptoms had "resolved within 3 months of the motor vehicle accident".
Dr Spira's reports, which suggested "a break in the chain of causation" were put forward as being "supported by the contemporaneous clinical notes". For what its worth, there was an implicit suggestion that the degree of impairment ought to be less, in accordance with Dr Spira's report.
The claimant's reply was lodged on 20th November 2003. It attached previous certificates of medical assessors, broadly supporting the claimant, and written submissions prepared by counsel. The thrust of the submissions was that the contemporaneous records and Dr Spira's report did not constitute "additional relevant information". Reference was made to the decision of Davies J in Alvanja v NRMA Insurance (2010) 56 MVR 499. The case that there was a break in the chain of causation had been advanced to Dr Ling; and the information was not additional because it could and should have been obtained previously if it was significant.
The decision of the proper officer
Referral of a dispute for further medical assessment is dealt with by s 62 of the Act which 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.
In her decision the proper officer identified that the "additional relevant information relied upon by the insurer consisted of the Westmead Hospital clinical records, the clinical records of Dr Yildrim and the reports of Dr Spira of 15th May and 12th September 2013. She recorded what the insurer said about the assessment of Dr Ling and quoted the submissions made based upon the Westmead Hospital clinical notes. Allowing for typographical error by which "symptomatic" is rendered as "asymptomatic" in the last paragraph of CB p 173, the proper officer showed she clearly understood that these three classes of document were:
... relied on support the opinion that the claimant was symptomatic for a short period of time after the motor vehicle accident and that the later onset of symptoms in 2009 were not causally related to the accident.
By recording them at CB p 174, she showed she understood the submissions of the claimant that the full Westmead Hospital clinical records "contain nothing new and that the opinion of Dr Spira was similar to those of Dr Burns and Dr Cummine", dealt with by the medical assessor in her reasons.
She set out the terms of s 62 in full and said:
Pursuant to s 62, a matter cannot be referred for a further assessment unless a party can demonstrate that any deterioration or additional information was such as to be capable of materially altering the outcome of the previous MAS assessment.
She then quoted from the passage in Dr Burns report where he referred to his assumption derived from the treating doctors reports that there was a lacuna in the symptomatology between 2005 and 2009 and in which he quoted in full from the narrative recorded in the Westmead Hospital Discharge Summary including the material under the heading "Principal Diagnosis", which he understood meant "query cause".
The proper officer also quoted at length from Dr Burns' reasoning to his conclusion which, as I have said, is substantially based upon what he regarded as an absence of recorded complaints and clinical material from 2005 to March 2009. He regarded the pathology in March 2009 as involving "significant degenerative change in the neck" without "substantial disc protrusion or disc prolapse". The proper officer pointed to the passage in Dr Ling's reasons where she referred to the views of Drs Burn and Cummine, and, again, recorded the insurer's submission about the "break in chain of causation".
As the insurer submits, a critical part of her reasoning process appears in the following passage:
In considering this application I must apply the decision of Justice Rothman in the case of Garcia v Motor Accidents Authority of New South Wales [2009] NSWC 1056. Paragraph 38 states that:
"An expert medical opinion as to the cause of the injury is relevant evidence and is "about the injury". Further to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor has not previously received an expert opinion of that kind, would be "additional relevant information about the injury". Such an opinion would satisfy one of the pre-conditions prescribed in S62(1)(a) of the Act.
The opinion with regards to causation contained in Dr Spira's report of 12 September 2013 is drawn from the break in the chain of causation from the initial soft tissue injury in 2004 to the subsequent development of pathology in 2009. However, the opinion of causation was evidenced in the report of Dr Burns dated 18 January 2012 and was previously before the MAS Assessor. Dr Burns' opinion is aligned to that of the opinion of Dr Spira and to that of the insurer's opinion as expressed in their submissions and has therefore been addressed by the MAS Assessor in their certificate. Thus the opinion of causation being given by Dr Spira has already been considered and therefore cannot be considered as additional relevant information about the injury such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1 A) of the Motor Accidents Compensation Act 1999.
Submissions of the parties
The insurer argued that the decision of the proper officer committed "four major errors" or were expanded somewhat orally and in an additional written argument styled "Submissions in reply". The first error was that she failed to consider the significance of the additional contemporaneous clinical material, but rather focused upon Dr Spira's report; the second asserted failure to deal with the contemporaneous clinical records "without first informing [the insurer] that this was proposed" constituting a denial of procedural fairness; the third error asserted that consideration of the contemporaneous clinical records, as additional relevant material, was mandatory: her failure to consider them was jurisdictional error; and the fourth major error was the erroneous application of Garcia v Motor Accidents Authority of NSW [2009] NSWSC 1056; 54 MVR 102. Again, this was about the failure to take into account the additional contemporaneous clinical material over and above Dr Spira's reports. In this context the failure was said to be a constructive failure to exercise jurisdiction when adjudged in accordance with Ex Parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420.
In the supplementary submission the argument was amplified. It was a statutory precondition to the exercise of power that the proper officer consider the contemporaneous clinical material and the opinion of Dr Spira set out above that psychological factors played a major role. The latter went to the degree of permanent impairment rather than its cause. The failure to "afford proper, genuine or realistic consideration" of this material produced a decision that was legally "irrational, illogical or not based on findings or inferences of fact supported by logical grounds": QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [36].
The claimant argued that the authorities concerning judicial review of a s 62 decision indicate the available grounds are limited: Rodger v De Gelder (2011) 80 NSWLR 594 at 114; Miller. So far as the first purported error was concerned the plaintiff argued, by reference to Rodger v De Gelder, Miller and Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 at [48] - [49], the only relevant statutory precondition is the proper officer's state of satisfaction. There is no requirement "that there be distinct determinations with respect to each separate piece of additional information". Concerning the second error, the proper officer is not required to give a further opportunity to the insurer to make submissions. There was no occasion for the provision of such an opportunity: SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [48]. Concerning the third error, the claimant submitted it should not be accepted that the proper officer ignored or failed to consider the contemporaneous clinical material. From what was actually said in her reasons, the proper officer was "plainly alive to the issue". The claimant argued by reference to Minister for Aboriginal Affairs vPeko-Wallsend Ltd (1986) 162 CLR 24 that the Court should firmly bear in mind its proper function which is not to substitute my own decision for that of the proper officer. And, concerning the fourth error, the claimant submitted that the approach of Rothman J in Garcia has been frequently applied since. Reference was made not only to Alvanja but also to Glover-Chambers v Motor Accidents Authority of NSW [2010] NSWSC 17; 55 MVR 44 per McCallum J.
Applicable legal principles
It is now clearly established by a trilogy of decisions of the Court of Appeal that "the authority impliedly conferred on the proper officer to refer an application for a further assessment by a medial assessor depended on the satisfaction of the proper officer as to the requirements set out in [s 62 (1A)]": QBE v Miller at [35] applying Rodger v De Gelder; see also Henderson v QBE Insurance Australia Ltd. Accordingly, it is not permissible for the Court to seek to decide as a matter of objective fact, whether, in this case, the "additional information is such as to be capable of having a material effect on the outcome of the previous assessment" (s 62(1A)). The legal standard to be applied by the Court was expressed by Basten JA in Miller at [36] - [37] in the following terms:
Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2004] HCA 32 ; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd[1944] HCA 42 ; 69 CLR 407 at 432:
If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
Such standards set the jurisdictional parameters of the power conferred on the officer. QBE also relied upon error of law on the face of the record as a basis for setting aside the determination of the proper officer. That approach involved a number of propositions which were not adequately explored. For example, it assumed that the "record" to be reviewed for legal error included all of the material before the proper officer, together with proper officer's reasons. So far as the reasons were concerned, counsel called in aid s 69(4) of the Supreme Court Act which provides that "the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination". However, the proper officer was clearly not a "court" for the purposes of the section and there was no discussion as to whether she was properly to be characterised as a "tribunal": cf Masters v McCubbery [1996] 1 VR 635, dealing with the equivalent provision in the Administrative Law Act 1978 (Vic), which has a definition of "tribunal". Nor was attention paid to the scope of the phrase "ultimate determination". When pressed, counsel for QBE submitted that it might not be necessary to rely on s 69(4) and that the common law would recognise the application by QBE, together with the attached documentation and the reasons of the proper officer, into which the decision was incorporated, as constituting the "record". The cases relied upon, however, included Craig v South Australia [1995] HCA 58 ; 184 CLR 163 (dealing with an inferior court, but discussing tribunals) and R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 (dealing with a statutory tribunal). Further consideration is required in order to determine how these principles apply to the officer of an authority performing a gateway function in filtering applications for further assessment. If the requirement that there be a "record" is to be ignored or deprived of content, all administrative decisions will be reviewable for any kind of error of law. Whether or not that approach should be adopted as a matter of policy, it is not the current basis for judicial review under s 69. (Emphasis added)
I have set out [37] for completeness. I did not understand the insurer's argument to extend to error of law on the face of the record and I will not approach the case on that basis.
It is worth setting out the passage from Buck v Bavone [1976] HCA 24; 135 CLR 110 cited to by Basten JA. There Gibbs J (as his Honour then was) said (at pp 118-9):
It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. (Citation omitted)
The requirement of s 62(1A), is not "a matter of opinion or policy or taste": it is a question of fact involving an evaluative judgment.
The trilogy of cases each draw upon the decision of the High Court of Australia in Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; 240 CLR 611. There Gummow ACJ and Kiefel J before quoting (at [40]) the passage identified by Basten JA (in Miller at [36]), from SGLB about "the critical question", set out "two distinctions" (SZNDS at [38] - [39]) that "must be made" when ascertaining if jurisdictional error has been made in a case where the statutory criterion for administrative action is the "satisfaction" of the decision maker as to a question of evaluative fact of the type raised by s 62(1A). The first distinction is the law's apprehension against "merits review" does not require "the same degree of caution as to the scope of judicial review ... when the issue is whether the jurisdictional threshold has been crossed". The second concerns the question of "legal unreasonableness" most recently discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. Gummow ACJ and Kiefel J said (at [39]):
Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review, will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.
Decision
In applying these principles in the present case, it is well to bear in mind that one must avoid what Basten JA has called "a mind-set determined to find error" (see Miller at [55]), and, I think, an appreciation (perhaps related to that consideration), that the s 62(1A) decision is required to be made by a "member of staff" of the Authority, who is not required to be legally trained, and who is performing an essentially administrative function, albeit one indirectly affecting the rights of the claimant, and the potential liability of the insurer.
Of the various pieces of information identified above at [20] and [21] that the insurer put forward as "additional relevant information" only some were not provided to the medical assessor in some form. They are (b), (c), (d) and, possibly, (e). As I have said at [29]-[30] above, by her reasons the proper officer showed she was well aware of what information the insurer said was additional. I would reject the submission of the insurer that all that goes before what I have set out at [34] above is merely preamble.
Dr Ling had (a), which is the Discharge Summary and she was aware of its contents even if she did not set out the words fully in her reasons. In large measure, this takes (d), Dr Duggins' handwritten note of the history he took from the claimant, out of the reckoning. The Discharge Summary was clearly based upon it. It records the "previous" whiplash and "no residual issues".
Dealing with (b), the absence of a record of complaint of neck pain in the triage document, it is clear that Dr Ling did assume some continuity of neck symptoms from the history she received from the claimant (see [13] above). To that extent this document may be additional information in the statutory sense, but whether it was, is a matter for the satisfaction of the proper officer.
The record of the resident medical officer ((c)) is new, in the sense of not being available to Dr Ling, because it could be thought to put the whiplash injury in the past, as opposed to being a current and ongoing problem, and it contains a frank denial of "any current neck pain". As the insurer says this information was not set out expressly in the reasons of the proper officer.
Dr Sivagnanam's report of 19th March 2009, a follow up examination, is also new, but is consistent in a general way with the facts assumed by Dr Ling because it does includes a history of neck pain in the weeks leading up to the claimant's presentation at Westmead Hospital on 4th March 2009.
Notwithstanding that Dr Spira himself missed the significance of the insurer's interest in Dr Yildrim's reports, its content was not new. As I have said it was common ground that the claimant's neck was well enough for her to return to her normal duties a short time after the motor vehicle accident. I would not regard that material as a matter of law as being "capable of having a material affect on the outcome of the previous assessment", acknowledging always that my role is restricted to the issue of "whether the jurisdictional threshold has been crossed" (SZMBS [38]) or a constructive failure to exercise jurisdiction has occurred.
This brings me to the reports of Dr Spira. The critical question is, of course, "whether [her] determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds".
Dr Spira's view "that psychological factors are playing a major role" (see [17] above) may be put to one side immediately. First, and most importantly, this consideration was never relied upon by the insurer as additional information when making its application for further referral. Secondly, although that consideration seems to have informed Dr Spira's assessment of the actual degree of permanent impairment, he still concluded it was greater than 10 per cent and, ultimately, this is the only relevant statutory question: s 131 of the Act; Brown v Lewis [2006] NSWCA 87; 65 NSWLR 587 at [20] - [24] per Mason P. To that extent, as a matter of law, Dr Spira's opinion as to the degree of impairment was not capable of having material effect on the outcome of the previous assessment.
I accept the insurer's argument that in the dispositive passage of her reasons, as set out in [34] above, the proper officer focused upon the "opinion with regard to causation contained in Dr Spira's report of 12th September 2013". There is nothing about this which is irrational, illogical or legally unreasonable. One may accept that a patient's history given by is likely to be always relevant to the determination of a medical question. However, properly understood, its relevance relates to its significance for the validity of the medical opinions expressed in the case. By validity in this context I mean weight due to, or persuasive value of the opinions. From Dr Spira's standpoint, the newly available primary clinical records "merely reinforces the views" he had previously expressed (see [21] above). That is to say that he, like Dr Burns and Dr Cummine, if there was to be a connection between the motor accident and the pathology operated on by Professor Dan, would have expected to see a closer temporal connection between the accident and the onset of the radiculopathy. Like Dr Burns and Dr Cummine, he did not identify how close the connection needed to be, but was simply of the view that four years was too long.
The important point is the clinical records did not operate in a vacuum. Their significance depended upon what a medical expert made of them. By her reasons the proper officer showed she understood this and on the view she formed of the facts she was not satisfied that the new material, viewed through the only expert report which commented upon it, was additional information within the meaning of s 62(1A).
It was obviously correct as the proper officer said that Dr Ling had fully considered the "break in the chain of causation" argument in the previous assessment and rejected it. Although Dr Ling assumed ongoing, probably low-grade symptomatology requiring little by way of medical treatment, the approach she took to medical causation did not depend upon a close temporal connection between the accident and the development of radiculopathy (see [14] above). Like Dr Burns, she treated the relevant pathology, not as a "frank injury" but rather as a manifestation of cervical spinal disc disease. For the reasons she gave, Dr Ling concluded that the car accident had accelerated that process. It was well open to the proper officer to decide that a reiteration of a close-temporal-connection theory was not "such as to be capable of having a material effect on the outcome of the previous assessment". Her decision was not illogical or legally unreasonable.
From this it follows that I reject the arguments for the insurer. The proper officer did consider the significance of the additional contemporaneous clinical material, and decided its significance depended upon the opinion of Dr Spira. She had no obligation to inform the insurer that she would not consider the primary clinical records because she considered them. In any event, were it otherwise I would have concluded this aspect was governed by SZBEL as argued by the claimant (see [37] above). I accept that it was mandatory for the proper officer to consider and evaluate the material put forward as additional relevant information. I am satisfied that she did so. On the view she formed of the material its significance depended upon Dr Spira's opinion and she was correct to decide that she was bound to apply the approach of Rothman J in Garcia, the correctness of which was not called into question by either party before me.
For the reasons I have given, I am of the view that the proper officer did "afford proper, genuine [and] realistic consideration" of the material put forward by the insurer.
For these reasons the proceedings must be dismissed. Before pronouncing orders I wish to observe that the availability of contemporaneous clinical material obviously remains important for fact finding purposes in the assessment of the damages to which the claimant may be entitled. For the reasons given by Mason P in Brown v Lewis, a conclusive certificate under s 61(2) of the Act does not foreclose that inquiry, Murdoch v Davis [2005] NSWCA 466; 44 MVR 415 notwithstanding; cf Morris Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 considered by Rothman J in De Gelder v Rodger [2014] NSWSC 872 at [122] - [124].
My orders are as follows:
(1) Proceedings dismissed;
(2) The plaintiff to pay the first defendant's costs on the ordinary basis forthwith after they have been agreed or assessed.
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Amendments
28 November 2014 - Quote corrected
Amended paragraphs: 39
Decision last updated: 28 November 2014
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