Jake Thomas Burns v Insurance Australia Limited trading as NRMA Insurance

[2018] NSWSC 18

Supreme Court

New South Wales

Medium Neutral Citation:	Jake Thomas Burns v Insurance Australia Limited trading as NRMA Insurance [2018] NSWSC 18
Hearing dates:	12 September 2017
Date of orders:	30 January 2018
Decision date:	30 January 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Leave is granted to the plaintiff to institute the proceedings out of time. (2) The amended summons of the plaintiff filed in Court on 12 September 2017 is dismissed. (3) The plaintiff must pay the costs of the first defendant of the proceedings before me, on the ordinary basis.
Catchwords:	ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – application to quash medical assessment made pursuant to s 60 – asserted inadequacy of reasons – application dismissed ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – application to quash refusal of proper officer to refer for review of medical assessment by review panel pursuant to s 63 – asserted misunderstanding of role of proper officer – correct test applied – application dismissed
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), s 60, s 63
Cases Cited:	Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173
Category:	Principal judgment
Parties:	Jake Thomas Burns (Plaintiff) Insurance Australia Limited trading as NRMA Insurance (First Defendant) State Insurance Regulatory Authority (Second Defendant) A Proper Officer appointed by the State Insurance Regulatory Authority for the Motor Accidents Medical Assessment Service (Third Defendant) A Medical Assessor appointed by the State Insurance Regulatory Authority for the Motor Accidents Medical Assessment Service (Fourth Defendant)
Representation:	Counsel: E G Romaniuk SC / T J J Willis (Plaintiff) E Elbourne (First Defendant)   Solicitors: LHD Lawyers (Plaintiff) Curwoods Lawyers (First Defendant) Crown Solicitors Office (Second, Third and Fourth Defendant)
File Number(s):	2017/00072332
Publication restriction:	Nil

Introduction

1. These proceedings for judicial review brought by Jake Thomas Burns (the plaintiff) seek to impugn two decisions that were made pursuant to the Motor Accidents Compensation Act 1999 (NSW) (the Act).

2. The first is the decision of Dr Blom (the medical assessor), who provided a certificate of 2 September 2016 as a result of his assessment of the plaintiff. That was done pursuant to s 60 of the Act.

3. The second is the decision of Ms Redmond (the proper officer), who refused an application by the plaintiff that she order a review of the assessment of the medical assessor by a Medical Review Panel. That was done pursuant to s 63 of the Act. The proper officer provided reasons for that refusal on 30 November 2016.

4. It was conceded by senior counsel for the plaintiff that he required leave to bring the proceedings. That leave was opposed by the first defendant (to which I shall refer for convenience as simply the defendant), on the basis that the proceedings had been brought out of time. But because of the importance of the question to the plaintiff (for reasons that I shall explain shortly); the lack of evidence of prejudice to the defendant occasioned by the delay; the relatively short duration of the delay; the fact that some of the delay is explained by the attempt to seek relief pursuant to the Act with regard to the reasons of the medical assessor by way of the application to the proper officer; and, finally, because one knows that litigation cannot be conducted perfectly without the benefit of hindsight; I consider that the necessary leave should be granted.

5. Separately, objection was taken to a portion of the submissions of senior counsel for the plaintiff, on the basis that they had not been adequately notified to counsel for the defendant. That was because they focused on particular matters that appeared neither in the application to the proper officer impugning the reasons of the medical assessor; nor in the original summons for relief; nor in the amended summons filed in court at the commencement of the hearing with the consent of the defendant; nor in the written submissions of senior counsel for the plaintiff filed and served prior to the hearing before me. I shall determine that ancillary question, to the extent necessary, at the end of my judgment.

Background stated chronologically

6. The background of the matter may be stated succinctly.

7. On 1 July 2013, the plaintiff, then aged almost 17 years, was a passenger in a motor vehicle that was involved in a serious accident. A number of people were physically injured, including the plaintiff.

8. Thereafter, the plaintiff developed significant and chronic psychological and psychiatric problems. There was no dispute before me that those problems were caused by the motor vehicle accident.

9. On 28 October 2015, an application was made by the plaintiff for a medical assessment, pursuant to s 60 of the Act.

10. On 22 August 2016, the medical assessor assessed the plaintiff.

11. On 2 September 2016, the medical assessor provided a certificate pursuant to Part 3.4 of the Act with regard to the level of whole person impairment (WPI) suffered by the plaintiff.

12. The level of assessment of WPI was 9%. There was no dispute before me that that assessment was adverse to the plaintiff in an important way, in that, unless he was assessed as having suffered WPI of 10% or more, he was prohibited by statute from receiving any damages for non-economic loss.

13. On 14 October 2016, the plaintiff applied to the proper officer for a review of the assessment of the medical assessor, pursuant to s 63 of the Act.

14. On 30 November 2016, the proper officer refused the application, and provided reasons for doing so.

Aspects of the reasons of the medical assessor

15. The reasons of the medical assessor may be summarised as follows.

16. In their entirety, they are 13 pages long, the majority of which are closely typed.

17. They commence with a clear statement that the post-traumatic stress disorder and secondary major depressive disorder suffered by the plaintiff do not give rise to a permanent impairment greater than 10%.

18. They go on to provide a summary of the materials provided to the medical assessor.

19. They proceed to a detailed history provided by the plaintiff. That history includes his pre-accident medical history, his relevant personal details, his psychosocial history, his pre-accident functioning, the history of the motor accident, and the history of symptoms and treatment following the motor accident. The latter in particular is highly detailed and “fact rich”.

20. The reasons go on to note that there have been no other relevant injuries or conditions sustained since the motor vehicle accident.

21. They proceed to discuss in detail the current symptoms of the plaintiff, and his current and proposed treatment.

22. With regard to clinical examination, they discuss the examination of his mental state and his current functioning. They also note the opinion of the medical assessor that there was no suggestion of dissembling or malingering.

23. Thereafter, a detailed review of documentation is undertaken, including with regard to two reports of medical experts relied upon by the plaintiff and placed before the medical assessor. That part of the review includes a summary of the opinions with regard to various levels of functioning of the plaintiff expressed by those two medical experts, along with the opinions of the medical assessor in those regards. Where there is a divergence of opinion, the medical assessor explains the basis upon which his opinion is different from that of the other doctor.

24. Other medical opinions are discussed, but the medical assessor does not express a differing view with regard to them.

25. Thereafter, the medical assessor summarises his conclusions as to diagnosis and causation. He summarises the injuries that he considers were caused by the accident, and expresses the opinion that they are permanent.

26. The assessment concludes, under the heading “Degree of Permanent Impairment” with two tables, the second of which ascribes a numerical class to six subcategories of functioning. As I have explained, by way of a mathematical process that was not in dispute before me, the medical assessor arrives at an assessment of WPI at 9%.

Aspects of the reasons of the proper officer

27. In similar vein, the reasons of the proper officer may be summarised as follows.

28. They commence with the straightforward statement “I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect. Accordingly, the review application is dismissed.”

29. The reasons provide a very brief précis of the occurrence of the accident on 1 July 2013, and the fact that the plaintiff had been medically assessed as suffering less than 10% WPI.

30. The proper officer records that the plaintiff seeks to have the medical assessment reviewed “…on the basis that it is incorrect in a material respect”, and refers to the application and submissions to that effect. The contrary position of the defendant is also recorded.

31. At paragraph 4 of the reasons, the proper officer states “[s]ection 63 of the Act provides that if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect, the review application will be accepted and referred to a Medical Review Panel.”

32. The reasons proceed to summarise the aspects of the reasons of the medical assessor that were impugned by the plaintiff, and the submission that the medical assessor had provided “limited reasoning” with regard to each of those areas.

33. As for the first area, “social and recreational activities”, the proper officer rejects the submission that the reasons of the medical assessor were deficient, and states “I am not satisfied of reasonable cause to suspect material error here.”

34. As for the second area, “travel”, the reasons engage in a similar analysis of the sufficiency of reasons, and concludes “… the applicant [that is, the plaintiff] has not satisfied me of reasonable cause to suspect any material error in the assessment.”

35. As for the third area, “social functioning”, a similar analysis is undertaken. It concludes with the sentence “I am not satisfied of reasonable cause to suspect material error here.”

36. Under the heading “conclusion”, the reasons of the proper officer state “… as to this review application, I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect.”

37. The reasons draw to a close by setting out the material that is taken into account in coming to that conclusion, but not before formally dismissing the application of the plaintiff.

Submissions of the plaintiff about the reasons of the medical assessor

38. Despite the multiplicity of asserted grounds for review of the decision of the medical assessor notified in the amended summons, in his oral submissions at the hearing before me, senior counsel for the plaintiff helpfully made it clear that the overarching basis upon which the medical assessment is said to be infected by legal error calling for intervention is the inadequacy of reasons given for the adverse assessment. I was given to understand that all of the subsidiary complaints about the reasons of the medical assessor are really paths to that ultimate destination.

39. With regard to asserted inadequacy of reasons, the following submissions were made.

40. First, the question whether any assessment was placed at category two or category three was mathematically crucial. That was because it would almost certainly have an impact upon whether the plaintiff would be entitled to damages for non-economic loss or not. Indeed, I was told by senior counsel that, if only one of the sub-assessments at category two had been a sub-assessment at category three, the plaintiff would inevitably (as a matter of mathematics) have passed the 10% WPI threshold.

41. Secondly, one should read the table at the end of the reasons adjacent to each category assessment as setting out the primary bases upon which that category assessment was made. And yet those primary assessments are not consistent with the findings and assessments to be found earlier in the reasons.

42. In other words, the submission was that the vast bulk of the reasons suggested, and foreshadowed, an assessment at category three with regard to each sub-assessment. And yet the final assessment, pithily stated in the table, was less than that. In those circumstances, there needed to be reasons explaining why the result that was objectively “expected” on the basis of the preceding part of the reasons did not eventuate.

43. Thirdly, it was clear from the materials provided by the parties to the medical assessor that there was a real dispute between them as to whether or not the plaintiff had suffered equal to or more than 10% WPI. That dispute would inevitably be resolved by the medical assessor by way of the various sub-assessments at various categories. The submission was that it was incumbent upon the reasons to explain in more detail why that particular and central dispute had been resolved adversely to the plaintiff.

44. In other words, the general proposition was accepted—indeed, embraced—by senior counsel for the plaintiff that the adequacy of reasons very much depends upon the whole context and circumstances of the decision. Here, one of those circumstances was the primacy of the question whether each sub-assessment of the plaintiff would be at category two or category three. And yet, it was said, the reasons do not grapple explicitly with that crucial question.

Determination of the ground regarding the reasons of medical assessor

45. Contrary to the submissions of senior counsel for the plaintiff, I do not believe that the reasons of the medical assessor are inadequate in any way. I say that for the following reasons.

46. First, contrary to the approach taken by senior counsel for the plaintiff, the table at the end of the reasons should not be given primacy. To the contrary, the reasons must be read as a whole. To my mind, the table is the summarised culmination of all that precedes it. And what precedes the table is a detailed justification for the results that are contained in the table.

47. Secondly, the reasons are detailed, comprehensive, and coherent. They are not merely a chronology or history, thereafter simply followed by an un-reasoned determination. Rather, they constitute an analysis of the past, the present, and the future. Taken as a whole, they amply set out the process of reasoning adopted by the medical assessor in coming to his determination.

48. Thirdly, the reasons explain why the opinion of the medical assessor differs from the assessments provided by medical experts retained by the plaintiff. Those reasons are by no means limited to the sheer effluxion of time since those experts expressed their opinions.

49. Fourthly, the reasons culminate with details about why the medical assessor has chosen to assign a particular numerical value to a particular subcategory. The reasons are far from being a simple “ipse dixit” provided by a medical expert with regard to those crucial questions.

50. Fifthly, I do not believe that it is necessary for me to determine the possible ancillary dispute between the parties as to the true nature of the “guidelines” to which the medical assessor was required to have regard. That is because, whatever the precise legal status of that of those guidelines, I am satisfied that the reasons are a legally adequate explanation of why the medical assessor came to his ultimate opinion.

51. Sixthly and finally, even accepting for the sake of argument that the inevitable legal consequence of the assessment of the percentage of WPI was seriously disadvantageous to the plaintiff, and that that therefore called for a more detailed explanation of the assessment than would otherwise have been the case, nevertheless I consider that the reasons fulfil that requirement. Read as to detail and as a whole, they explain how and why the assessment was arrived at.

52. In short, I do not accept that the reasons provided by the medical assessor with regard to his assessment of the psychological and psychiatric impairment suffered by the plaintiff are inadequate. To the contrary, I consider that they are soundly adequate, bearing in mind the statutory and practical context in which the task of assessment was undertaken. No doubt, they constitute a rejection of the submissions made on behalf of the plaintiff that is disadvantageous to him. But that adverse determination of a question of fact provides no basis for judicial review; and in any event, it is not the ground upon which reliance was placed.

53. For those reasons, I would not intervene on the ground that the medical assessor provided inadequate reasons in support of the adverse determination.

Submissions of the plaintiff about the reasons of the proper officer

54. Again, there was a helpful refinement of the submissions of senior counsel for the plaintiff at the hearing. Two bases of relief were ultimately relied upon in here, though again the latter was explained to be ancillary to the former.

55. The first was the proposition that the proper officer misunderstood her role, in that, rather than acting as a “gateway” with regard to the question of whether the reasons of the medical assessor were inadequate, she purported to determine that definitive question herself. Reliance was placed upon the level of detail contained in the reasons of the proper officer for the proposition that she had gone too far, and misunderstood the fundamentally limited nature of her role.

56. Ancillary to that, it was said that her reasons were inadequate, in the sense that they failed to engage correctly with the statutory role of the proper officer.

57. It was accepted by senior counsel for the plaintiff that the test to be applied by the proper officer was to be found in s 63(3) of the Act: whether or not “… the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.” It was also accepted that the proper officer referred to that test more than once in her reasons.

58. It was submitted, however, that a careful reading of those reasons shows that the proper officer misunderstood her role, however many times the correct test was stated. The submission was that, far from considering the threshold question entrusted to her by statute, she had in fact determined the ultimate question, and done so adversely to the plaintiff.

59. As I have said, the alternative way of expressing that complaint was to frame it in terms of the inadequacy of reasons, in the sense that the reasons show misapplication of principle with regard to the same central question of the true role of the proper officer.

Determination of the grounds regarding the reasons of the proper officer

60. I do not accept the submission of the plaintiff that reasons show that the proper officer misunderstood her role. That is for the following reasons.

61. First, as I have shown in my own brief précis, the proper officer explicitly referred to the test derived from s 63 of the Act on many occasions throughout her reasons. That is surely cogent “evidence” that that is the test that she indeed applied in determining the application.

62. Contrary to the submission of the plaintiff, I do not accept that those references were merely “lip service” paid to the statutory test, without that test actually having been applied. There is nothing to suggest that that occurred.

63. Secondly, it is true that the proper officer provided a detailed analysis of whether, in truth, the reasons of the medical assessor were inadequate, as was submitted to her by the solicitors for the plaintiff. But that can hardly be impugned: in determining whether one has reasonable cause to suspect a state of affairs about a subject matter, and in giving reasons for that determination, one will often surely need to analyse, to some degree, the question of whether that state of affairs actually exists. The two questions, although conceptually separate, will surely very often call for consideration of the same facts and circumstances.

60. In other words, I accept that the proper officer provided a rather detailed analysis of the question whether the reasons of the medical assessor were actually inadequate. But providing too much detail in reasons rather than too little, without more, could (as a very general rule) rarely be the subject of criticism. And in any event, there is nothing to suggest that that detailed analysis went beyond the statutory test that the proper officer was required to apply, and to which she referred repeatedly.

61. In particular, I do not accept that, read as a whole, the reasons of the proper officer demonstrate that she wrongly transmuted her role from that of “gatekeeper” to that of “ultimate decider”.

62. To the extent that the secondary submission of senior counsel for the plaintiff was that the reasons of the proper officer were inadequate in the sense that they demonstrate a misunderstanding of her role, that is very much bound up in the primary submission, and must fail as well.

63. In short, I do not consider that the reasons of the proper officer reveal any legal error that should lead to judicial review. That is because I consider that the proper officer understood the statutory test, and applied it.

Ancillary analysis

68. Although in light of my primary determination it is not necessary for me to do so to resolve the matter, I should say for completeness that, if they had been determinative, I would not have acted upon any submissions by senior counsel for the plaintiff about the adequacy of the reasons of the medical assessor with regard to the topic of “self-care and personal hygiene”. That is because that particular alleged failing in the reasons of the medical assessor was not part of the written application of the plaintiff to the proper officer, was not notified in the original summons, was not notified in the amended summons, and was not discussed in the written submissions of senior counsel for the plaintiff.

69. It is true that that topic was, in a sense, merely a particular of the overarching defect from which the plaintiff submitted the reasons of the medical assessor suffered. It is also true that questions of compliance with procedure should not trump questions of justice. I consider, however, that there must come a point, in terms of procedural fairness, at which one is required to put one’s opponent on notice of the precise bases upon which judicial review of an administrative decision is sought. That was not sufficiently done with regard to that topic.

70. To be clear, however, in light of my primary determination that the reasons of both decision-makers reveal no error, my contingent acceptance of the submissions of counsel for the defendant about the appropriateness of this limitation have played no role in my disposition of this matter.

Conclusion

71. No legal error having been identified in the reasons of the medical assessor or the reasons of the proper officer, the proceedings must fail, and the amended summons of the plaintiff must be dismissed.

Costs

72. Counsel for the defendant submitted that, in accordance with Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173, an indemnity costs order should be made with regard to at least some aspects of the matter.

73. In a nutshell, it was said that voluminous material was notified by the legal team of the plaintiff as relevant to the appeal, three quarters of which was not ultimately relied upon by senior counsel for the plaintiff. Furthermore, it was noted that that “winnowing” process did not occur until well after the hearing before me had commenced, and at my respectful suggestion.

74. So much may be accepted. Having said that, a very useful reduction in material did take place before the hearing commenced substantively. Furthermore, after that process had occurred, the documents tendered and the submissions made about them were tightly focused. As well as that, strictly speaking, a judicial officer, in being asked to determine the grounds ultimately pressed, may have insisted (contrary to my approach in this particular matter) on being provided with all of the material that was placed before the two decision makers. Finally, whilst accepting, of course, that I am bound by the decision of the Court of Appeal to which I was invited, I consider that a special costs order should only be made when one is firmly and affirmatively satisfied that the unusual circumstances calling for such an order have been established by the contending party. I do not have that level of satisfaction in this case.

75. In short, the usual approach of costs following the event will be applied, on the ordinary basis.

Orders

76. For the above reasons, I make the following orders:

(1)   Leave is granted to the plaintiff to institute the proceedings out of time.

(2)    The amended summons of the plaintiff filed in Court on 12 September 2017 is dismissed.

(3)   The plaintiff must pay the costs of the first defendant of the proceedings before me, on the ordinary basis.

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Decision last updated: 30 January 2018