Insurance Australia Ltd t/as NRMA Insurance v Cornish

[2016] NSWSC 1583

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Insurance Australia Ltd t/as NRMA Insurance v Cornish [2016] NSWSC 1583
Hearing dates:	8 June 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	(1) Summons dismissed.  (2) The Plaintiff should pay the First Defendant’s costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – assessment by medical assessor – application under s 62 Motor Accidents Compensation Act 1999 for further referral – “additional relevant information” – video surveillance of claimant subsequent to assessment – claimant asserted to be engaging in surfing activities inconsistent with findings on assessment – refusal by proper officer to refer for further assessment – whether proper officer viewed video or relied on summary – whether the video and other material was additional relevant information – whether it was capable of a having a material effect on outcome of previous assessment – whether proper officer’s reasons demonstrated error or legal unreasonableness – whether proper officer performed her statutory task – errors demonstrated – whether any utility in quashing decision and referring matter for reconsideration – claimant assessed at 25% WPI – additional information affected assessments totalling no more than 14% - outcome not capable of having a material effect on the outcome – summons dismissed
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; 56 MVR 499 El-Kazzi v Allianz Australia Insurance Ltd [2014] NSWSC 927; 67 MVR 312 Garcia v Motor Accidents Authority (NSW) [2009] NSWSC 1056; 54 MVR 102 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Insurance Australia Ltd v Clewley [2015] NSWSC 1805; 74 MVR 345 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; 57 MVR 157
Category:	Principal judgment
Parties:	Insurance Australia Ltd t/as NRMA Insurance (Plaintiff) Steven Gregory Cornish (First Defendant) State Insurance Regulatory Authority (Second Defendant)
Representation:	Counsel: M Robinson SC & A Naylor (Plaintiff) R Harrington (First Defendant) Submitting appearance (Second Defendant)   Solicitors: Moray & Agnew (Plaintiff) Stacks Law Firm (First Defendant) Crown Solicitors Office (Second Defendant)
File Number(s):	2015/374121

Judgment

1. On 2 September 2002 the First Defendant was injured in a motor accident. On 20 January 2015 Dr Thomson, a medical assessor of the State Insurance Regulatory Authority, determined that the First Defendant had suffered injuries to his cervical spine and lumbar spine and in other places on his body that were causally related to the accident.

2. The injuries found may be summarised from the MAS’s report as follows:

i. Cervical spine: it is considered that Mr Cornish suffered a significant stress injury to his cervical spine.

ii. Lumbar spine: it is considered that Mr Cornish suffered a significant stress injury to his lumbar spine.

iii. Right arm: Mr Cornish has suffered a fracture of the lower third of the right radius and ulna requiring open reduction and internal fixation.

iv. Right wrist: Mr Cornish suffered an injury to his right wrist with some restricted range of movement.

v.   Injury to right leg: Mr Cornish suffered a mid-shaft fracture of the right femur and basal fracture of the neck of the right femur requiring open reduction and internal fixation for stabilisation of the fractures.

vi.   Right hip: Mr Cornish suffered from a basal fracture of the right femoral neck and has been left with some restricted movement of the right hip.

vii.   Right knee: Mr Cornish suffered a disruption of his medial meniscus with early degenerative changes in the medial compartment of the knee joint requiring arthroscopic partial medial meniscectomy.

viii.   Right ankle injury: Mr Cornish suffered contusion injury to the right ankle mortise with damage to the talar dome articular area of the ankle mortise and also a cystic development in the talar dome of the ankle mortise requiring operative treatment to remove softened particular surface and curettage cyst.

3. The impairments found were as follows:

(a)   Cervical spine: the cervical spine is rated using the DRE impairment category. The Assessor found that the First Defendant's impairment fell within DRE impairment category IT: The DRE category II impairment is 5% impairment of whole person. Relevantly the Assessor found on clinical examination:

"It was considered that Mr Cornish had dysmetria of his cervical spine and also had significant trigger points at the area of the left side of his neck below the mastoid process suggesting trigeminal nerve irritation".

(b)   The Assessor placed the First Defendant's impairment in respect of his lumbar sacral injury fall within DRE impairment category II". On clinical examination of the lumbosacral spine the Assessor found relevantly:

"the lumbosacral spine has evidence of marked symptomology arising from his lumbosacral spine. There is evidence of muscle spasm, restricted range of movement and dysmetria but no evidence of nerve involvement as all reflexes are present, active and symmetrical in the lower limbs. There was no definite loss of sensation in a dermatomal distribution".

(c)   The Assessor found impairment of the right wrist to equate to impairment of 2%, impairment of the right hip to equate to impairment of 2%, impairment of the right knee to equate to impairment of 1% and the impairment of the right ankle to be 8%. The First Defendant sustained major injuries to these body parts and has been assessed at a very moderate impairment which is unlikely to be affected by film of his ability to surf.

4. In addition, scarring to the right forearm, right thigh and hip was assessed by Dr McGlynn at 2%. The total whole person impairment assessment by Dr Thomson was 23%. A combined certificate was issued for 25%.

5. The Plaintiff applied to the Authority for a referral of the medical dispute for further medical assessment on the grounds of there being additional relevant information about the injury capable of having a material effect on the outcome of the previous assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW). The Plaintiff claimed that the additional relevant information comprised:

(1)   A DVD of surveillance footage from 5 May 2015 to 15 May 2015 which    was not in the Plaintiff’s possession at the date of previous    assessment;

(2)   A report by the investigators of the DVD surveillance; and

(3)   A medico-legal report by F J Harvey dated 6 July 2015 which post-    dated the previous assessment

6. The submissions in support of the application said this:

1.   The insurer submits that there is additional relevant information annexed to this application that is capable of altering the previous outcome of the assessment undertaken by Assessor Thomson in respect of the claimant's physical injuries.

2.   The insurer submits that the additional information consisting of surveillance evidence and a supplementary report from Dr Harvey commenting upon the surveillance evidence, is capable of altering Assessor Thomson's assessment of whole person impairment.

3.   In particular, the video surveillance shows the claimant exhibiting a full range of movement in respect of his neck, back, right wrist, right arm and right leg inconsistent with the range of movement displayed by the claimant throughout the MAS examination undertaken by Assessor Thomson.

4.   As supported by the supplementary report by Dr Harvey the DVD evidence shows the claimant engaging in fairly strenuous surfing activities for a total of 2 hours. During this time his back and neck are fully mobile, without any sign of pain and restriction.

5.   In these circumstances, the insurer submits that the additional relevant information once considered by Assessor Thomson is capable of altering the previous outcome of the assessment undertaken by Assessor Thomson in respect of the plaintiff's whole person impairment.

7. On 2 October 2015 the Proper Officer of the Authority refused the Plaintiff’s application for further medical assessment. The Plaintiff now challenges that decision by seeking an order in the nature of certiorari “setting aside” (as the Summons asserts) or, alternatively, a declaration declaring invalid, that decision together with an order in the nature of mandamus remitting the Plaintiff’s application to the Authority for determination of the application according to law.

The Proper Officer’s reasons

8. The reasons for the decision of the Proper Officer say this, relevantly:

2. I have determined that the application will not be referred for further assessment. This is because I am not satisfied that the additional relevant information or deterioration of the injury is such as to be capable of having a material effect on the outcome of the previous assessment as required by section 62(1A) of the Motor Accidents Compensation Act 1999.

…

14.   The term 'additional relevant information', which is the first part of the test, has been defined by the Supreme Court in a number of cases, as follows:

a.   The information must be additional to the party relying on it as    a ground for further assessment (Singh, at 53)

b.   A further medical opinion is only additional information if it is of    a different kind (i.e. deals with different issues) than the    opinions already expressed and considered (Singh, at 63)

c.   If there is material before the Assessor which expresses an    opinion that particular injuries were caused by the accident, the    fact that another expert says the same thing but using different    or greater analysis will not mean the information is additional    because the opinion was already considered (Alavanja, at 35)

15. For the purposes of Section 62(1A), and according to the Guidelines (at Clause 14.6.3), the term 'material' includes that it is relevant and capable of altering the outcome of a dispute about permanent impairment, from 'not greater than 10% WPI' to 'greater than 10% WPI' or vice versa. This is second part of the test (sic).

Reasons

16.   I am not satisfied that the surveillance DVD and report of M & A Investigations and the report of Dr Harvey are additional relevant information. This is because, whilst these documents were not in the possession of the party relying on them as a ground for further assessment (Singh, at 53), they do not deal with an opinion of a different kind already considered (Singh, at 63) but are saying the same thing but using different or greater analysis (Alavanja, at 35).

17.   Dr Harvey's report dated 6 July 2015 comments on the surveillance report and DVD of the claimant engaging in 2 hours of surfing. From this Dr Harvey concludes that the claimant has no restriction regarding ROM. He gives no opinion with regards to WPI. Dr Harvey himself states that the claimant's ROM is something he covered in his previous report dated 25 June 2014 and his conclusions have not changed. That report was previously before the Assessor and has been considered.

18.   As I have found that the above documents are not additional relevant information, I do not need to address the issue of whether they are capable of having a material effect. However, specifying clearly how additional relevant information would be capable of having a material effect on the outcome of the previous assessment is an onus borne by the applicant (Henderson, at 106). Even if I accepted that the surveillance DVD, the report of M & A Investigations and the report of Dr Harvey were additional relevant information, the applicant has not demonstrated how they would have a material effect. That is to say, they have not demonstrated how it is capable of altering the outcome from 'greater than 10% WPI' to 'not greater than 10% WPI'. I am therefore also not satisfied that this component of the test at Section 62(1A) has been met.

The asserted errors

9. The Plaintiff identifies six errors in the Proper Officer’s decision and reasons. The first error is said to be that the Proper Officer wrongly construed the meaning of the expression “additional relevant information” in s 62(1)(a) of the Act so as to assume evidence supporting a conclusion that was also open on any earlier evidence could never be additional relevant information, and assuming that the reasons stated for expert opinion evidence are irrelevant to whether it can meet the description of additional relevant information.

10. The second error was said to be that the Proper Officer decided the application by purporting to draw an inference from the Plaintiff’s submission as to whether the evidence relied on was capable of constituting additional relevant information instead of assessing the evidence for herself. In that way she failed to take into account a relevant consideration being the content of the claimed additional relevant information.

11. The third error was said to be that the Proper Officer failed to consider for herself whether the Plaintiff satisfied the test in s 62(1A) that the relevant information was capable of having a material effect on the outcome of the previous assessment. The Proper Officer asked herself the wrong question, namely, whether the Plaintiff had “demonstrated” how the additional relevant information would have had that effect.

12. The fourth error was said to involve legal unreasonableness in that the Proper Officer concluded, especially sight unseen, that the DVD material in the application was not, or was not capable of constituting, additional relevant evidence. Further, it was legally unreasonable for the proper officer to conclude that the previous assessment considered “the inconsistency” in the First Defendant’s presentation because to do so conflated an inconsistency with all inconsistencies. Further, the decision contained a fundamental internal inconsistency unable to be rationally explained. In paragraph 2 of the Reasons the Proper Officer determined that there was in fact additional relevant information but it was not capable of having a material effect on the outcome of the previous assessment. However, at paragraph 16 of her Reasons the Proper Officer concluded that the three items put forward by the Plaintiff were not additional relevant information within the meaning of the section.

13. The fifth error asserted a failure to perform a statutory task in that each piece of material submitted in the Plaintiff’s application of inconsistent movement, postures and activities that was not seen in making the previous assessment was necessarily relevant and additional evidence. Whether the evidence was also capable of materially affecting the previous assessment could only be determined by the Proper Officer weighing the quality and quantity of that evidence in the context of the issues and other relevant evidence before the Medical Review Panel and its expressed reasons for decision. The Proper Officer did not perform that exercise at all and, accordingly, failed to perform her statutory duty.

14. The sixth error asserted a failure to give proper reasons. The Plaintiff said that the Proper Officer failed to give any reasons for rejecting the Plaintiff’s submissions that:

(1)   the DVD material was entirely new and the Proper Officer should view    it for herself;

(2)   the DVD was highly relevant given its place in the chronological    sequence of histories to doctors on which the previous assessment    was based;

(3)   the DVD contained important information which could only be properly    assessed by medical experts viewing it for themselves and which could    not be conveyed by only reading a lay summary of a party of its    contents in a surveillance report;

(4)   the DVD contained particular relevant information which was not    conveyed at all by the surveillance report to the Medical Review Panel;

(5)   Dr F J Harvey’s report contained new information identifying medical    controversies that had not been dealt with by any previous reports and    not dealt with by the previous assessment.

Legislative provisions

15. Section 62 of the Act provides:

62 Referral of matter for further medical assessment

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

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

(b)   by a court or claims assessor.

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

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

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

16. Section 65 of the Act relevantly provides:

65   Authority monitoring and oversight

(1)   Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.

17. Chapter 14 of the Medical Assessment Guidelines deals with applications by a party for further medical assessment under s 62(1)(a). Chapter 14 relevantly provides:

Proper Officer determination

14.3   The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9.

14.4   When conducting an Allocation Review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment.

14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to:

14.5.1   the application and any reply;

14.5.2   any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and

14.5.3   the objects of the Act and the objects of MAS.

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:

14.6.1   reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa;

14.6.2   related treatment, from 'not related' to 'related' or vice-versa; or

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

14.7   If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.

14.8   The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2.

The first error - applied the wrong test

The second error -   failed to consider the evidence for herself

18. These two asserted errors may be considered together because they both involve the allegation that the Proper Officer failed to view the DVD with the consequences which follow from that failure.

18. The Plaintiff submitted that it was apparent from the reasons of the Proper Officer that she did not have regard to the DVD. That inference was said to be available because in paragraph 1 the Proper Officer said that she had considered “all supporting documentation” and that a DVD could not be considered as documentation. The Plaintiff also submitted that it was apparent from reading the Proper Officer’s Reasons that there was no meaningful discussion of the DVD and in that sense she had not actively intellectually engaged with what was on the DVD. Reliance was placed on what Fagan J said in Insurance Australia Ltd v Clewley [2015] NSWSC 1805; 74 MVR 345 at [32] – [34].

19. The Plaintiff submitted that the application of the principle from Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; 56 MVR 499 was misconceived because the footage from the DVD is significantly different from a written report or summary purporting to explain the footage. The Plaintiff submitted that the Proper Officer did not comply with clause 14.5.1 of the Medical Assessment Guidelines in that she did not have regard to the application which included the content of the application and, therefore, the DVD.

20. The First Defendant submitted that it is clear from her reasons that the Proper Officer had regard to the application and the contents of the documents identified which included the DVD.

21. I do not accept that the Proper Officer did not review the DVD. My reading of the Proper Officer’s Reasons as a whole satisfy me that the Proper Officer had regard to the DVD and its contents. She noted in paragraph 8 that the Applicant relied “on the following documents”, amongst which she listed the DVD. In paragraph 16 she discusses what “these documents” deal with as part of her consideration of whether they contained additional relevant information. The Proper Officer makes specific reference to the surveillance DVD and whether it, with the other documents, dealt with an opinion of a different kind already considered. The Plaintiff can point to nothing to suggest that the Proper Officer’s statement in paragraph 1 that she had considered all the supporting documentation was not true as far as the DVD is concerned except that the Proper Officer does not in her Reasons expressly discuss what she saw on the DVD. I do not consider that this provides a reason for not accepting the truth of the Proper Officer’s statement.

22. Clewley is distinguishable on this issue. As Fagan J makes clear at [32], he inferred from what the proper officer in that case said that he had not viewed the DVD.

The third error - error of law

24. The Plaintiff submitted that the Proper Officer made an error of law by asserting that the Plaintiff had an onus to show that the additional relevant information would be capable of having the material effect on the outcome of the previous assessment (paragraph 18). The Plaintiff submitted that this imported a legal test that did not form part of her task under s 62(1A).

25. The First Defendant submitted that the Proper Officer had stated a correct principle of law, namely, that the Plaintiff had an onus to prove that the additional material would have had a material effect on the outcome.

26. In Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Macfarlan JA, with whom McColl JA agreed, said:

[113] The decision to refer a claimant for a further medical assessment is made by an administrative officer and, whilst not a purely procedural step, is nevertheless not the ultimate step in the relevant process (that being the further medical assessment itself). Bearing this in mind, my view is that on the proper construction of s 62(1A), the capacity of the additional information to affect a further medical assessment is a matter for the subjective satisfaction of the Proper Officer. It is not necessary that that capacity exist as a matter of objective fact.

27. In Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Beazley P at [48]-[49] and Tobias AJ at [108] agreed with those remarks.

28. In QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 Basten JA (with whom Ward JA and Young AJA agreed) also made reference to those remarks of Macfarlan JA in Rodger v De Gelder and went on to say:

[34]   It is tolerably clear that both Beazley JA and (more explicitly) Macfarlan JA, declined to review the merits of the decision of the proper officer. (McColl JA agreed with both judgments, suggesting no difference of approach between them on issues necessary for the decision.) It may thus be seen that the Court was unanimous in rejecting the proposition that it was for the Court, rather than the proper officer, to characterise Dr Maxwell's report as "additional information".

…

[36]   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 The Queen 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."

29. Those views were affirmed by Meagher JA (with whom Tobias AJA agreed) in Henderson at [78].

30. Justice Meagher JA went on to say:

[105]   A fair reading of QBE's application was, as the Acting Proper Officer considered, that the information said to constitute the relevant ground was Dr Akkerman's revised whole person impairment assessment and his revised opinion that Mr Henderson's ongoing major depression and alcohol abuse was not caused by the accident. The Acting Proper Officer addressed that information and considered that it was not additional relevant information. The primary judge erred in concluding that there was any relevant error of law on her part in doing so. The officer was not required to do other than address the information specified by QBE in the application. In particular, she was not required to undertake the sort of exercise undertaken by the primary judge in an attempt to discover whether there was any additional information on which the revised medical opinions were or could have been based.

[106]   What the circumstances of this case emphasise is the need, in relation to such applications, to specify clearly the additional information about the injury which is said to be capable of having a material effect on the outcome of any earlier assessment. In some cases the fact of a medical opinion may be, or be part of, the relevant additional information. In the present case, however, the information which was capable of having a material effect on the outcome of the earlier assessment was not the fact that the revised opinions were held but that the underlying symptoms or assumptions by reference to which those opinions were expressed were said to have changed.

It should be noted that those paragraphs were specifically referred to by the Proper Officer at paragraph 13 of her Reasons.

31. The statements contained in paragraph 18 of the Reasons that suggested the Plaintiff had an onus and that the Plaintiff had failed to demonstrate how the additional relevant information (if it was such) would have a material effect is a mis-statement of the position inasmuch as it imports an objective standard into the task of the Proper Officer. It must be regarded as an error and a failure by the Proper Officer to ask herself the correct question. All that is required is the subjective satisfaction of the Proper Officer. However, given my finding in relation to the fourth asserted error, this error is probably not material. It was an error in a hypothetical consideration by the Proper Officer which she acknowledged that she did not need to consider because she did not consider what was put forward was additional relevant information.

The fourth error - illogicality and unreasonableness

32. The Plaintiff submitted that the decision was affected by legal unreasonableness in the sense of that expression in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 in that:

(a)   The Proper Officer failed to give adequate weight to relevant factors of great importance;

(b)   The Proper Officer reasoned illogically or irrationally;

(c)   The decision lacks evident and intelligible justification; and

(d)   No reasonable decision maker would have refused the Plaintiff’s application for further medical assessment.

33. The judgment of Hayne, Kiefel and Bell JJ said:

[71]   In Secretary of State for Education and Science v Tameside Metropolitan Borough Council Lord Diplock opined that unreasonableness would be shown where "no sensible authority acting with due appreciation of its responsibilities" would have so decided. This reflects the requirement of the law that a decision-maker understand his or her statutory powers and obligations. It is evident in the more specific errors, going to jurisdiction, which the law recognises and to which Lord Greene MR referred in Wednesbury, such as misdirecting oneself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations.

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

…

[75]   In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

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

34. The Plaintiff submitted that it was legally unreasonable for the Proper Officer to conclude, especially sight unseen, that the DVD material in their application was not, or was not capable of constituting, additional relevant evidence.

35. The Plaintiff also pointed to what was said to be a fundamental internal inconsistency, which is unable to be rationally explained. That inconsistency is apparent from a comparison of what the Proper Officer said in paragraph 2 and paragraph 16. In paragraph 16 the Proper Officer says that she is not satisfied that the material put forward was additional relevant information. However, in paragraph 2 the Proper Officer said she was not satisfied “that the additional relevant information” was such as to be capable of having a material effect on the outcome of the previous assessment.

36. In advancing these submissions Senior Counsel for the Plaintiff made reference to what the Proper Officer said (at paragraph 16) as follows. She said that she was not satisfied that the further material was additional relevant information and went to say:

This is because, whilst these documents were not in the possession of the party relying on them as a ground for further assessment (Singh, at 53), they do not deal with an opinion of a different kind already considered (Singh, at 63) but are saying the same thing but using different or greater analysis (Alavanja, at 35).

Senior Counsel, having quoted that, said this:

Just stopping there, your Honour. What does that mean, I ask rhetorically. It is completely rubbish. It's not even intelligible. I can't make head nor tail of it, and I have tried.

37. This is inappropriate language to use about a person in the position of the Proper Officer who was clearly doing her best to make an appropriate decision in reliance on authority as she understood it. I note that similar criticism was made of these type of pejorative remarks by Hamill J in El-Kazzi v Allianz Australia Insurance Ltd [2014] NSWSC 927 at [30]. In any event, so far from the remarks being complete rubbish and unintelligible, they were a quote, as is apparent, from the judgment of Rothman J in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; 57 MVR 157 at [53] and [63].

38. The First Defendant submitted that the fact that a different conclusion could have been reached does not establish that the decision was illogical, irrational or lacking in intelligible justification. He submitted that any infelicity in expression by the Proper Officer does not vitiate the decision. It is clear, he submitted that the Proper Officer was of the view that what was put forward was not additional relevant information and that it would not have had a material effect on the outcome of the previous assessment.

39. In my opinion there is, however, a proper basis for suggesting that the inconsistency between what is contained in paragraph 2 and what is contained in paragraph 16 is illogical (as discussed in Li). Justice Hamill in El-Kazzi had to consider the effect of a similar inconsistency. In that case the Proper Officer said that a second report from a doctor along with the injury referred to constituted new additional relevant information but two paragraphs later said that the report could not be considered as additional relevant information. Justice Hamill said at [33]:

Those two statements in fact, opinion or conclusion cannot be reconciled.

40. He went on to say:

[41]   I am satisfied that the decision is vitiated by the kind of error referred to by Beazley JA in Rodger v De Gelder. It is "illogical" and "irrational". The irreconcilable statements of opinion as to whether there was (or was not) "additional relevant information" - which is the touchstone of the decision that the proper officer was called upon to make - easily fits those descriptions. Similarly, making reference to irrelevant passages of a case that had been overruled is not a rational or logical approach to a decision affecting the legal rights of the plaintiff.

41. Error is shown in this regard.

42. Although as Henderson makes clear it is not my task or the task of the Proper Officer to review the further material to determine whether there was “additional relevant material” (see at [52] and [105]), if it can be demonstrated that the Proper Officer made an error of law or if the Proper Officer’s decision was irrational or illogical then the decision will be set aside.

43. The position in Clewley was somewhat analogous to the situation in the present case. However, in that case the Review Panel, in respect of which a further reference was sought under s 62, had a typed summary report of some film of activities of the claimant but the Panel did not have the DVD of the film itself. The application to the proper officer included a copy of the surveillance DVD as well as a report of Professor Spira who commented on the discrepancies and contradictions in the claimant’s presentation to what was shown on the DVD.

44. As I noted earlier, Fagan J concluded that the proper officer had not viewed the DVD when that officer declined to refer the material under s 62 on the basis that the DVD and the report of Professor Spira constituted additional relevant information.

45. Justice Fagan noted at [26] that the task of this Court on review is not to determine for itself whether the further information actually satisfies the statutory criterion of being additional, or is relevant, or is capable of having a material effect on the outcome of the previous assessment. His Honour noted at [26] what had been said by Basten JA in Miller at [36] that the critical question is “whether the information was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”. I have set that passage out above at [28].

46. Justice Fagan went on to say:

[32]   The proper officer concluded in para 12 of his reasons that the plaintiff’s description of the DVD (in its submissions to him) as having greater impact than the surveillance log entry alone “strongly suggests that the film is saying ‘the same thing but using different or greater analysis’ as described in Alavanja”. …

[33]   The significant moving images on the 9 May 2012 surveillance video simply were not before the review panel either directly or by way of any reasonably accurate secondary description. The proper officer’s conclusion that the surveillance DVD was not “additional” was not properly found according to law because he failed to view and to take account of the content of the DVD and, independently, because he drew the erroneous and unsupportable inference that the DVD only showed the same thing as was described on the log. Also, he applied a test of whether the DVD said “the same thing [as the log] but using different or greater analysis” – which was a test incapable of rational application to the comparison of a DVD with a narrative log purporting to describe the moving images and which was a test supported by authority only with respect to expert reports.

[34] In para 4 of the proper officer’s reasons he concluded that because the review panel was aware of some evidence of inconsistency between the claimant’s presentation to examining doctors and his conduct and physical functionality at times when he would not have expected to have been observed, therefore the panel were aware of the issue of inconsistency and an item of evidence which did no more than provide illustration or proof of the inconsistency would therefore not be “additional”. This is illogical and constitutes a failure of the proper officer to recognise that individual items of evidence, all going to the same issue, may each constitute discrete pieces of “information” within the meaning of s 62 and therefore may be “additional” if not previously presented to the panel. The proper officer’s reasoning is erroneous as a matter of law because he has conflated an issue (which was before the tribunal) with the items or body of evidence bearing upon that issue (one of which, the 9 May 2012 surveillance DVD, was not before the panel).

47. The position in the present case is stronger because in Clewley the Review Panel had the summary of the surveillance report although not the DVD. In the present case the assessor had neither.

48. I am conscious of the fact that there was no contradictor in Clewley but I consider, with great respect, that Fagan J is correct in his conclusions in those passages set out above. I consider that the Proper Officer has misunderstood what I was saying in Alavanja at [35] (the passage the Proper Officer has referred to in paragraph 16 of her reasons), or has wrongly applied that passage. What I was discussing, as was Rothman J in Garcia v Motor Accidents Authority (NSW) [2009] NSWSC 1056; 54 MVR 102 at [38], was further opinion about the same matter. I do not consider that a DVD tending to demonstrate range of movement or capacity different from what had been assessed will or may be saying the same thing as an earlier opinion. If it is “new information” (Garcia at [38]) it may well amount to additional relevant information.

49. I am satisfied that error has been shown in this regard also. As Hamill J said in El-Kazzi at [40], quite how the error is categorised is difficult, but the conclusion is, as was said in Li at [72], that the decision maker has been unreasonable in a legal sense.

The fifth error - failure to perform the statutory task

50. The Plaintiff submitted that each piece of material submitted in the Plaintiff’s application of inconsistent movements, postures and activities that was not seen in making the previous assessment was necessarily relevant and additional evidence; that is, the Proper Officer was bound to accept that it fell within the statutory description properly construed. Although the matter was one for the Proper Officer it had to be a lawful determination reasonably made. The Plaintiff submitted that the Proper Officer did not perform that exercise at all and, accordingly, failed to perform her statutory task.

51. The First Defendant submitted that the film, in the context of the case, was innocuous. He submitted that she was not required to provide minute by minute assessment of the film.

52. It is not clear, but seems likely, that this error is asserted on the assumption that the Proper Officer did not view the DVD. I have already determined that she did so. If the submission is made, accepting that she did view the DVD, the Plaintiff’s submission would seem to be a restatement of the last asserted error by a different description. I have already determined that error is demonstrated by failing to regard the DVD as additional relevant information.

The sixth error – failure to give proper reasons

53. The Plaintiff submitted that the Proper Officer failed to set out any reasons for rejecting the Plaintiff’s fundamental submissions. The specific complaints concerning the reasons are set out at [14] above.

54. It may be observed that the Proper Officer’s Reasons which relevantly appear in paragraphs 16 and 17 are very brief. It is sufficient to note that the Plaintiff has demonstrated error from a reading of the reasons as they were expressed. This ground does not take the matter any further.

Discretionary considerations

55. The Plaintiff accepted that even if error is demonstrated the question of what if any relief is to be accorded is a discretionary one. A discretionary consideration is whether there is any utility in sending the matter back for reconsideration by another officer on the basis that the result would be no different.

56. The issue arises in this way. As has been noted the percentages assessed by Dr Thomson were as follows:

Cervical spine 5%

Lumbar spine 5%

Right wrist 2%

Right hip 2%

Right knee 1%

Right ankle 6%

Hind foot impairment - inversion 1%, - eversion 1%

57. Dr Thomson said that using the combined values chart at page 322 of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association the combined whole person impairment was 22%. (That may be because the ankle restrictions are not to be counted twice but that was not made clear.) However, as noted earlier, the First Defendant was also assessed by Dr McGlynn in respect of scarring where he was assessed at 2%.

58. There is a combined certificate given by assessor Alison Fitzgerald dated 18 February 2015 who used the 23% figure from Dr Thomson’s assessment and combined it with Dr McGlynn’s assessment so that the combined impairment was 25%. She said that she used the combined values chart to reach that figure. With great respect to Dr Thomson, my utilisation of the combined values chart would have produced a figure of 23% for his assessment alone. Regardless, the combined certificate is one of 25% whole person impairment.

59. Section 61(10)(c) provides that the combined certificate is conclusive evidence as to whether the degree of permanent impairment is greater than 10%. Section 61(2) provides that any certificate is conclusive evidence as to the matters certified, in any court proceedings. I must start on the basis that the First Defendant’s impairment is 25%.

60. The Plaintiff relies as part of the additional relevant information on the report of Dr Harvey of 6 July 2015. The Plaintiff accepted during the course of argument that large portions of Dr Harvey’s report could not considered additional relevant information when the principles in Garcia and Alavanja were applied to it. However, even overlooking that matter, Dr Harvey relies on the DVD to assert ultimately that the First Defendant has been left with no significant impairment in the neck, the back and the wrist. Accordingly, if the total of those percentages is subtracted from 25% the First Defendant is left with a whole person impairment of 13%. Even if one can discern from Dr Harvey’s report that he doubts the right knee injury, the subtraction of that percentage would still leave the First Defendant with a whole person impairment of 11%. The result must be, therefore, that the additional relevant information was not capable of having a material effect on the outcome of the previous assessment because it could not reduce the percentage below 11%.

61. The Plaintiff counters that result by suggesting that the DVD itself casts doubt on the First Defendant’s credit generally. However, there is nothing in Dr Harvey’s report or any other material put forward by the Plaintiff which suggests that the assessment of the remaining body parts including the scarring is liable to any alteration as a result of the additional relevant information.

62. In those circumstances it would be futile to quash the decision of the Proper Officer and require that judgment to be re-exercised. In those circumstances, despite error being shown, relief must be denied.

Conclusion

63. Accordingly, I make the following orders:

(1)   Summons dismissed.

(2)   The Plaintiff should pay the First Defendant’s costs.

**********

Decision last updated: 11 November 2016