Johnson v Suncorp Staff Pty Ltd

Case •

[2024] NSWSC 102

•

15 February 2024

Supreme Court


New South Wales

Medium Neutral Citation: Johnson v Suncorp Staff Pty Ltd [2024] NSWSC 102
Hearing dates: 8 February 2024
Date of orders: 15 February 2024
Decision date: 15 February 2024
Jurisdiction:Common Law
Before: Griffiths AJ
Decision:

The amended summons is dismissed, with costs.

Catchwords:

WORKERS COMPENSATION — Medical assessment — Appeal against Medical Assessment Certificate – whether Appeal Panel merely conducted a preliminary review and failed to determine the appeal – whether the Panel’s failure to re-examine the plaintiff despite her request constitutes reviewable error

ADMINISTRATIVE LAW — Whether reviewable error of law — review of finding of fact — where some probative evidence to support finding

Legislation Cited:

Personal Injury Commission Act 2020 (NSW) sch 1

Supreme Court Act 1970 (NSW) s 69(4)

Workers Compensation Act 1987 (NSW) ss 39, 59A, 65A, 66, 151H

Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 281, 321A, 322, 327, 328, 331 and 376

SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021

SIRA NSW Workers Compensation Medical Dispute Assessment Guidelines

Cases Cited:

Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86

Broadspectrum (Australia) Pty Ltd v Wills [2018] NSWSC 1320

Bruce v Cole (1998) 45 NSWLR 163

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Ferguson v State of New South Wales [2017] NSWSC 887

Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38

Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532

New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792

QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442

Sabanayagam v St George Bank Ltd [2016] NSWCA 145

Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216

Siddik v WorkCover Authority of NSW [2008] NSWCA 116

State of New South Wales v Shepherd [2019] NSWCA 261

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

Yenuga v Attorney General (NSW) [2023] NSWCA 227

Category:Principal judgment
Parties:

Danielle Johnson (Plaintiff)

Suncorp Staff Pty Ltd (First Defendant)
President of the Personal Injury Commission (Second Defendant)
Richard Perrignon, Michael Hong and Nicholas Glozier as an Appeal Panel constituted under section 328 of the Workplace Injury Management Act 1998 (NSW) (Third Defendant)
Representation:

Counsel: D Steiner (Plaintiff); B G McManamey (First Defendant)

Solicitor: Main Lawyers (Plaintiff); Moray & Agnew (First Defendant)
File Number(s): 2023/293101
Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff by an amended summons sought judicial review of a decision dated 25 August 2023 by a Medical Appeal Panel (the decision). The Panel is part of the Workers Compensation Division of the Personal Injury Commission (PIC).

On 17 May 2022 the plaintiff served on the first defendant, Suncorp Staff Pty Ltd, a claim for lump sum permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) in respect of a claimed 22% whole person impairment (WPI) (psychological) as a result of a psychological injury she sustained whilst employed by Suncorp. Suncorp’s solicitors accepted liability to pay the plaintiff lump sum compensation for 19% WPI. Dissatisfied with this determination, the plaintiff lodged an application to resolve a dispute in the PIC regarding the degree of permanent assessment. The PIC referred the plaintiff’s application to an Approved Medical Specialist (AMS), Dr Clayton Smith, for an assessment of the plaintiff’s WPI. Dr Clayton Smith issued a Medical Assessment Certificate dated 3 May 2023 (MAC), which assessed the plaintiff to have 8% WPI of her psychiatric state (WPI). He determined that the plaintiff fell into Class 2 of the Psychiatric Impairment Rating Scale (PIRS) with respect to “Social functioning” and “Social and recreational activities”.

The plaintiff lodged an application to appeal against Dr Clayton Smith’s assessment, on the grounds that the assessment was made on the basis of incorrect criteria and that the MAC contained a demonstrable error pursuant to ss 327(3)(c) and (d) respectively of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). The plaintiff attached written submissions to the application and ticked “yes” to the question whether she requested to be re-examined by a Medical Assessor who is a member of the appeal panel. The submissions claimed Dr Clayton Smith erred in determining that the plaintiff’s marital breakdown was not caused, in part or at all, by the plaintiff’s injury.

The Panel confirmed the MAC and provided a detailed statement of reasons. The Panel reasoned that even if the plaintiff was correct in her assertion that the effects of her psychiatric injury caused the marital breakdown, the evidence was consistent with a Class 2 impairment and did not satisfy the class descriptor for a Class 3 impairment. Although the Panel considered this conclusion was sufficient to dismiss the appeal, it went on additionally to conclude that it was reasonably open to Dr Clayton Smith on the evidence before him to find that the marital breakdown resulted from causes which did not include the effects of the psychiatric injury.

The issues for determination were:

  1. Whether the Panel simply conducted a “preliminary review” and failed to discharge its statutory function of determining whether or not the MAC contained a demonstrable error with respect to the cause of the plaintiff’s marital breakdown (ground 1 of amended summons);

(ii)    Whether the Panel’s alleged failure to make a “full assessment of all aspects of the relationship before and after the couple separated by re-examining the plaintiff and asking her pertinent questions” constitutes a reviewable error (ground 2 of amended summons);

  1. Whether the Panel erred in not re-examining the plaintiff as per her request (ground 4 of amended summons).

Griffiths AJ held, dismissing the amended summons, with costs:

  1. Ground 1 is rejected: at [71]. The Panel’s reasons make clear that it correctly understood that the plaintiff challenged the MAC on the basis of demonstrable error and incorrect criteria: at [72]. Fairly read, the Panel’s reasons indicate that after it had, as it stated, “conducted a preliminary review”, it proceeded to determine the appeal on the papers as it was entitled to do under [5.17.1] of the SIRA NSW Workers Compensation Medical Dispute Assessment Guidelines: at [73]. The Panel gave detailed reasons why it rejected the plaintiff’s claim that Dr Clayton Smith’s assessment involved demonstrable error or the application of incorrect criteria: at [74]. The Panel confirmed the MAC pursuant to its power under s 328(5) of the 1998 Act: at [76]. Moreover, there is no basis to find that the Panel “filled in any gaps” in Dr Clayton Smith’s path of reasoning: at [78].

  2. Ground 2 is rejected: at [98]. Firstly, the complaint subject of ground 2 was not squarely raised before the Panel by the plaintiff: at [83]-[84]. Secondly, Campbell J’s reasons in Ferguson v State of New South Wales [2017] NSWSC 887 at [27] should be read in the context of that case, which relevantly differ to the proceeding here: at [85]-[86]. Here the Panel engaged in a full and comprehensive on the papers assessment of the plaintiff’s grounds of appeal, including the issue of causation: at [86]. To the extent this ground challenges the Panel’s finding of fact as to the causation of the plaintiff’s marriage breakdown, this does not amount to a reviewable error as there was some evidence to support the Panel’s confirmation of Dr Clayton Smith’s finding on causation: at [92]. Even if there was no evidence to support this finding, any such error would not be material given the Panel’s alternative reasoning that even if the plaintiff’s psychiatric injury is taken to have caused her marital breakdown, the evidence was consistent with a Class 2 impairment and did not satisfy the class descriptor for a Class 3 impairment: at [93]. There is no basis in the plaintiff’s complaint that she was not re-examined as she requested and asked questions on topics such as her ex-husband’s gambling because the Panel had no power to re-examine her where no error was found in Dr Clayton Smith’s MAC which warranted its revocation: at [94]-[95], [97].

    New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 followed.

    Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 considered.

  3. Ground 4 is rejected for the reasons in (2): at [99].

JUDGMENT

  1. HIS HONOUR: By an amended summons filed on 4 October 2023, the plaintiff seeks judicial review of a decision dated 25 August 2023 by a Medical Appeal Panel (the decision). The Panel is part of the Workers Compensation Division of the Personal Injury Commission (PIC). The Panel confirmed the Medical Assessment Certificate dated 3 May 2023 (MAC) issued by an Approved Medical Specialist (AMS) Dr Clayton Smith. He assessed an 8% whole person impairment (WPI) (psychological) as a result of a psychological injury sustained by the plaintiff on the deemed date of 24 November 2016 (at which time the plaintiff was employed by the first defendant, Suncorp Staff Pty Ltd as a mobile lending manager). The figure of 8% WPI was arrived at after subtracting 1% for subsequent stressors.

  2. It is common ground that the plaintiff can only succeed if she can establish jurisdictional error and/or error of law on the face of the record in respect of the decision.

  3. These reasons for judgment are structured as follows:

  1. Summary of background facts and procedural history.

  2. The Panel’s reasons summarised.

  3. The plaintiff’s judicial review challenge.

  4. Consideration and disposition.

  5. Conclusion.

(a)   Summary of background facts and procedural history

  1. On or about 17 May 2022, the plaintiff served a claim for lump sum permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (NSW) (the 1987 Act) with respect to a claimed 22% WPI of her psychiatric state (permanent impairment claim).

  2. On 25 November 2022, Suncorp’s solicitors informed the plaintiff that they were instructed to issue a determination of the permanent impairment claim in accordance with s 281(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the 1998 Act). Suncorp accepted liability to pay the plaintiff the sum of $46,610 in respect of what it determined to be a 19% WPI.

  3. Dissatisfied with this determination, on or about 30 January 2023 the plaintiff lodged an application to resolve a dispute in the PIC regarding the degree of permanent impairment.

  4. PIC referred the plaintiff’s application to Dr Clayton Smith for an assessment of the plaintiff’s WPI.

  5. On 3 May 2023, Dr Clayton Smith issued a MAC in which he certified that the plaintiff was suffering from an 8% whole person impairment of her psychiatric state (this included a subtraction of 1% for the effect of stressors which occurred after the deemed date of injury). He determined that the plaintiff fell into Class 2 of the Psychiatric Impairment Rating Scale (PIRS) with respect to both the scales of:

  1. Social functioning; and

  2. Social and recreational activities.

  1. The figure of 8% WPI is less than 15% WPI as required under s 65A(3) of the 1987 Act for a claimant to receive compensation where the injury involves a psychiatric or psychological injury. An assessment below 15% also precludes the claimant from seeking common law damages (see s 151H of the 1987 Act). Assessment of more than 20% WPI is relevant to a worker’s entitlement to weekly payments and treatment after five years (see ss 39(2) and 59A(5) of the 1987 Act).

  2. On or around 19 May 2023, the plaintiff lodged an application to appeal against Dr Clayton Smith’s assessment. On page 2 of the application (which used PIC’s pro forma Form 10 relating to an appeal against a medical assessor’s decision), the plaintiff stated her grounds of appeal were:

  1. the assessment was made on the basis of incorrect criteria (see s 327(3)(c) of the 1998 Act); and

  2. the MAC contains a demonstrable error (see s 327(3)(d) of the 1998 Act).

  1. Under a heading “Supporting Documentation”, the plaintiff ticked “yes” to the question whether submissions were attached detailing the grounds of the appeal. The question whether she requested to be re-examined by a Medical Assessor who is a member of the appeal panel, was also ticked “yes”. But the plaintiff ticked “no” to the questions whether she requested an opportunity to present oral submissions to the appeal panel and to whether she sought leave to rely on the availability of additional relevant information that was not available before the medical assessment or that could not reasonably have been obtained before the medical assessment.

  2. The written submissions detailing the appeal grounds, which were attached to the Form, totalled five pages. They should be summarised in some detail because they are relevant to the ambit of the appeal and the role and function of the Panel. They also highlight how the plaintiff’s judicial review case differs in some significant respects to the case she put to the Panel.

  3. After summarising relevant parts of guidelines relating to the assessment of permanent impairment (about which more will be said later), the submissions set out [24] and [25] of Campbell J’s reasons for judgment in Ferguson v State of New South Wales [2017] NSWSC 887. It is notable that the submissions made no reference to [27] of that decision, in contrast with the emphasis which was placed upon it before me, a matter to which I will return.

  4. The submissions then referred to Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 on the need for each of the tables in the PIRS to be assessed separately and the requirement that particular conduct be applied to the appropriate scale.

  5. After referring to Dr Clayton Smith’s statement in the MAC that the plaintiff’s Social functioning justified a Class 2 determination, the plaintiff noted that Dr Clayton Smith had recorded that although the plaintiff was separated from her ex-husband, “this was related to his alcohol use and gambling and cannot be attributed to the effects of the injury”.

  6. This matter was then developed at [17] of the submissions, which described Dr Clayton Smith’s conclusion concerning the cause of the breakdown of the marriage as “a factual finding…which is inconsistent with, and contrary to, the weight of a large body of contemporaneous evidence”. Paragraph 17 then set out a list of various items. The list comprised the plaintiff’s statement that the injury had had an effect on her whole family, including her children, as well as a number of observations about the plaintiff which were recorded in several medical reports and clinical notes.

  7. The submissions then claimed at [18] that, in the circumstances, Dr Clayton Smith was “either unaware of a significant factual matter or misunderstood a significant factual matter”, and, consequently, his reasoning was unsupported by the evidence. It was asserted that the plaintiff should have been assessed in Class 3 with respect to both scales of Social functioning and Social and recreational activities.

  8. Finally, under the heading “Orders sought”, the submissions stated that Dr Clayton Smith’s MAC should be revoked and the plaintiff be re-examined by “an appeal panel” (see at [21]). The plaintiff’s request to be re-examined by “the appeal panel” was then repeated at [23]. As will be developed, this sequence of events (i.e. revocation of the MAC before re-examination) is in accordance with authority. The references in [21] and [23] of the submissions to re-examination by “an appeal panel” and “the appeal panel” gloss over the terms of [5.17.2] of the SIRA NSW Workers Compensation Medical Dispute Assessment Guidelines (Dispute Guidelines), which refer to a further medical examination by an AMS on the appeal panel (see [67] below]). It is also significant that the plaintiff did not request an opportunity to make oral submissions before the appeal panel (which would have required a hearing).

  9. In brief, the plaintiff’s essential complaints to the Panel regarding Dr Clayton Smith’s assessment were that he had erred:

  1. in determining that the plaintiff’s marital breakdown was not caused, in part or at all, by the plaintiff’s injury, contrary to information which was before him; and

  2. in assessing the plaintiff in Class 2 in both PIRS categories concerning Social functioning and Social and recreational activities because he concluded, contrary to the information before him, that the plaintiff’s marriage had not broken down, at least in part, as a consequence of the plaintiff’s compensable psychiatric injury.

  1. The appeal was referred to the Panel by a delegate who was satisfied that a ground of appeal as specified in s 327(3) of the 1998 Act was arguable (thereby performing the “gatekeeper” function as described in Ballas at [58] and [151]). The Panel was constituted by a member (RJ Perrignon) and two AMS’s (Dr Hong and Dr Glozier).

  2. The Panel provided a detailed statement of reasons dated 25 August 2023 in conjunction with the decision, which reasons I will now summarise.

(b)   The Panel’s reasons summarised

  1. The Panel confirmed at [4] of the statement of reasons that it had conducted a preliminary review of Dr Clayton Smith’s medical assessment in the absence of the parties and having regard to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (Evaluation Guidelines).

  2. The Panel summarised the plaintiff’s written submissions at [5]:

(a)   As a matter of law:

(i)   The descriptors in each impairment class are examples only which provide a guide as a general indicator of the level of behaviour that might generally be expected in that class of impairment: Ferguson v State of NSW [2017] NSWSC 887 at [24] and following.

(ii)   Whether particular conduct falls within one scale or another calls for the correct characterisation of the conduct; failure to allot it to the correct class will result in the assessor taking into account an irrelevant consideration: Ballas v Department of Education (State of NSW) [2020] NSWCA 86.

(b)   In respect of Social functioning, the Medical Assessor found that the breakdown of the appellant’s marriage was related to her husband’s alcohol use and gambling and could not be attributed to the effects of her injury. That finding was contrary to the weight of the evidence, was unsupported by the evidence, and demonstrated that he was unaware of a significant fact or misunderstood it.

(c)   The evidence relied on is:

(i)   Appellant’s statement at [64] to the effect that the breakdown affected the whole family including children;

(ii)   a series of reports of treating psychiatrist Dr Bradley from 8 March 2018 to 15 February 2019, which record the poor state of the relationship and its stressful effect on the appellant;

(iii)   Dr Bradley’s opinion expressed on 15 August 2019, that “the financial stress on Danielle and her husband is the major factor…”, and

(iv)   clinical notes of general practitioner (GP) Dr Croaker from 28 June 2018 to 7 December 2020, which record the appellant’s reports to him of the poor state of the marital relationship.

(d)   Both Dr Lotz (9 May 2022) and Dr Kumar (11 October 2022) assessed a class 3 impairment in respect of Social functioning.

(e)   In respect of Social and recreational functioning also, Dr Lotz and Dr Kumar assessed a class 3 impairment.

  1. It may be interpolated here that the plaintiff’s claim that Dr Kumar gave a Class 3 assessment for Social and recreational activities is factually incorrect. Dr Kumar actually gave a Class 2 assessment for that scale. The plaintiff’s error appears also to have been adopted by the Panel at [45] of its reasons. Nothing more needs to be said about that because the plaintiff did not press any ground concerning the Panel’s assessment of Social and recreational activities.

  1. The Panel noted at [6] that, despite the plaintiff’s reference to Ballas, it was not suggested that the marital breakdown was wrongly considered in the context of the scale of Social functioning or that it ought to have been considered in relation to the scale of Social and recreational activities.

  2. In considering whether Class 2 was reasonably open in respect of the scale of Social functioning, the Panel noted that Dr Clayton Smith gave this classification on the basis that, although the plaintiff had separated from her husband, this was related to his alcohol use and gambling and could not be attributed to the effects of her psychiatric injury. Dr Clayton Smith had also noted that the plaintiff maintained an amicable relationship with her ex-husband.

  3. The Panel then explained at some length why it considered that, even if Dr Clayton Smith had been satisfied that the marital breakdown was caused by the injury and this was included in his assessment of the behavioural effects of the breakdown, a Class 2 impairment was nevertheless reasonably open to him (at [12]).

  4. At [13], the Panel set out the class descriptors for rating Class 2 and 3 impairment in the scale of Social functioning:

Class 2   Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3   Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

  1. The Panel explained that whether the plaintiff’s relationship with her ex-husband was “severely strained” within the class descriptor for Class 3, depended on the evidence. The Panel then reasoned at [16]:

…The mere fact of separation does not alone determine whether the relationship is ‘severely strained’, as couples can and often do manage their relationships after separation in an amicable fashion. The appellant told the Medical Assessor that her relationship with her husband was ‘amicable’, notwithstanding the separation, with no evidence of domestic violence. So far as it goes, that does not support a finding that the relationship continues to be ‘severely strained’. In light of that evidence, we cannot be satisfied that the relationship is ‘severely strained’.

  1. As to the remaining parts of the Class 3 descriptor, the Panel found at [17] that there was no evidence that the plaintiff’s spouse, relatives or community services were looking after her children. It noted Dr Clayton Smith’s finding that the plaintiff shared custody equally with her ex-husband.

  2. The Panel reasoned, therefore, that even if the plaintiff was correct in her assertion that the effects of her psychiatric injury caused the marital breakdown, the evidence was consistent with a Class 2 impairment and did not satisfy the class descriptor for a Class 3 impairment (at [19]).

  3. Moreover, the Panel added that, even if (contrary to the above) there was “severe strain” in the marital relationship, the mere satisfaction of one of two of the descriptors in the Class 3 scale would not compel a Class 3 assessment. Rather, the issue would be whether the Class 2 assessment was reasonably open. The Panel stated that this would have been the case even if one of the class descriptors in Class 3 was satisfied. The Panel said at [19]:

…The evidence before the Medical Assessor demonstrated close and ongoing relationships with family and friends. In those circumstances, clinicians might differ as to which class is more appropriate, but the choice of one over the other establishes neither error nor the application of incorrect criteria.

  1. The Panel considered that this was sufficient to dismiss the appeal. Nevertheless the Panel then addressed the plaintiff’s claim that Dr Clayton Smith had erred in finding that the marital breakdown was not caused by the psychiatric injury or its effects. It is notable that the Panel’s decision was based on two alternative limbs.

  2. The Panel summarised Dr Clayton Smith’s reasons for his finding on causation. In accordance with [1.6(c)] of the Evaluation Guidelines, he excluded the effects of the marital breakdown in his assessment concerning Social functioning.

  3. The Panel noted the plaintiff’s claim that Dr Clayton Smith’s finding was contrary to the weight of the following evidence (which was listed by the plaintiff in her submissions), namely:

  1. Dr Bradley’s report dated 15 August 2019;

  2. the plaintiff’s own statement that the marital breakdown had affected the whole family;

  3. Dr Bradley’s evidence in 2018 and 2019 that the marital relationship was poor and placed stress on the plaintiff; and

  4. Dr Croaker’s clinical notes from 2018-2020 that the relationship was poor.

  1. The Panel concluded at [30] that none of this evidence established the cause of the marital breakdown. Rather, it was directed to the existence and psychological sequelae of that breakdown.

  2. The Panel referred at [31] to extracts from Dr Bradley’s report dated 15 August 2019 in which Dr Bradley said that the cause of the plaintiff’s depression was “complex and unclear in many ways as there are multiple interacting factors”, including “work stress and change in [the plaintiff’s] office situation”, “severe marital stress and with her [now ex-]husband she alleges had significant gambling and alcohol problems and also… in April 2018 had lost his job in sales” and the plaintiff and him had “also overextended themselves buying a blueberry farm which was not providing a satisfactory income”. Dr Bradley said that it “appears that the financial stress on [the plaintiff] and her husband is the major factor [in causing the plaintiff’s depressive illness] although the details of this are still unclear”.

  3. The Panel said that Dr Bradley’s evidence, if accepted, supported findings that:

  1. the cause of the marital breakdown was the husband’s gambling, alcohol use, and loss of employment; and

  2. the economic failure of the blueberry farm, and perhaps the husband’s loss of employment, contributed to the plaintiff’s symptoms of depression, agitation and anxiety as at 15 August 2019.

  1. The Panel stated at [36] that Dr Bradley’s evidence did not support a finding that the marital breakdown was caused, in whole or in part, by the injury or its effects. After identifying that the issue for determination on the appeal was whether there was evidence to support Dr Clayton Smith’s finding that the plaintiff’s injury did not cause the marital breakdown, the Panel stated at [38] that Dr Clayton Smith had taken a history from the plaintiff that she and her ex-husband “broke up because he was not there for her during her cancer treatment because he was going to the pub instead” and noted the plaintiff’s denial that her husband had gambling problems but apparently did not deny his alcohol use or the loss of his job. The Panel then said at [38] that this evidence was sufficient to establish that the marital breakdown was caused by those matters, and not any other cause. Significantly, therefore, the issue of whether or not the ex-husband had a gambling problem did not figure in the Panel’s conclusion on causation.

  2. The Panel concluded at [39] that neither Dr Bradley’s report, nor the history taken by Dr Clayton Smith, supported a finding that the marital breakdown resulted from the injury or its effects. Thus the Panel concluded at [40] that it was reasonably open to Dr Clayton Smith to find that the marital breakdown resulted from causes which did not include the effects of the psychiatric injury. Consequently, Dr Clayton Smith was obliged to exclude the effects of the marital breakdown from his assessment of Social functioning.

  3. The Panel then turned its attention to the significance of the fact that Dr Lotz and Dr Kumar had assessed a Class 3 impairment for Social functioning. The Panel noted that those assessments were dated May and October 2022 respectively. The Panel reasoned that Dr Clayton Smith was not obliged to make the same assessment in April 2023 (see the Evaluation Guidelines at [1.6(a)]).

  4. The Panel noted that Dr Clayton Smith had considered those earlier assessments at [10(c)] of his reasons, but his assessment was different from that of Drs Lotz and Kumar for reasons which he gave.

  5. The Panel concluded that the fact that Dr Clayton Smith assessed Social functioning differently from Drs Lotz and Kumar did not establish either demonstrable error nor the application of incorrect criteria.

  6. Finally, in confirming the MAC, the Panel noted at [45] that the only ground of appeal relating to the assessment of the scale concerning Social and recreational activities “is the fact that Dr Lotz and Dr Kumar assessed as class 3 impairment”. As noted above, this was incorrect because Dr Kumar assessed the plaintiff to be Class 2 for this scale. In any event, the Panel reasoned that the assessments of both Dr Lotz and Dr Kumar had been considered by Dr Clayton Smith and no demonstrable error or application of incorrect criteria was established.

  7. For completeness, it may be noted that the Panel’s reasons do not address the plaintiff’s request to be re-examined. This is one of the matters which the plaintiff raises in her judicial review challenge, which I will now summarise.

(c)   The plaintiff’s judicial review challenge

  1. In her outline of written submissions filed on 8 December 2023, the plaintiff claimed that the amended summons raised the following four grounds of judicial review:

  1. Whether the Panel’s decision “conforms with law” (citing Ferguson at [10] per Campbell J), in circumstances where it is asserted that the Panel did not perform or discharge its statutory function or duty because it only conducted a preliminary review. Thus, it is submitted that the Panel failed to discharge its statutory function of determining whether or not the MAC contained a demonstrable error with respect to the cause of the plaintiff’s marital breakdown (Ground 1).

  2. Ground 2 is that the Panel failed to perform its statutory function because, in order to decide whether the plaintiff’s relationship with her ex-husband was “severely strained” within the class descriptor in PIRS Class 3 for the scale of Social functioning, the plaintiff claims that the Panel should have made a full assessment of all aspects of the relationship before and after the couple separated by re-examining the plaintiff and asking her pertinent questions.

  3. Ground 3 claims that the Panel failed to address the plaintiff’s submissions concerning the PIRS scale relating to Social and recreational activities, citing inter alia, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26.

  4. Ground 4 claims that the Panel fell into reviewable error in not re-examining the plaintiff as requested by her and in not following [5.17] of the Dispute Guidelines.

  1. Mr Steiner of counsel, who appeared for the plaintiff, abandoned ground 3 at the hearing.

  2. It is unnecessary to summarise the first defendant’s submissions (noting that the second and third defendants filed submitting appearances).

(d)   Consideration and disposition

  1. The legal framework summarised

  1. It is well to set out the relevant parts of ss 321A, 327 and 328 of the 1998 Act, which provide for the referral of medical disputes concerning permanent impairment, the functions of a medical appeal panel and the manner in which such a panel must deal with an appeal.

  2. Section 321A provides:

321A   Referral of medical dispute concerning permanent impairment

(1)   The regulations may make provision for or with respect to—

(a)   the circumstances in which a medical dispute concerning permanent impairment of an injured worker is authorised, required or not permitted to be referred for assessment under this Part, and

(b)   the giving of notice of a referral to the parties to the dispute.

(2)   Without limiting subsection (1), the regulations may provide that a medical dispute may not be referred for assessment under this Part if the dispute concerns permanent impairment of an injured worker where liability is in issue and has not been determined by the Commission.

(3)   A medical dispute concerning permanent impairment of an injured worker that is authorised or required by the regulations to be referred for assessment under this Part may be referred by a court, the Commission or the President, either of their own motion or at the request of a party to the dispute.

  1. The functions of a medical appeal panel are set out in s 327, which relevantly provides:

327   Appeal against medical assessment

(1)   A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2)   A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3)   The grounds for appeal under this section are any of the following grounds—

(a)   deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b)   availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c)   the assessment was made on the basis of incorrect criteria,

(d)   the medical assessment certificate contains a demonstrable error.

(4)   An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

…

  1. The manner in which an appeal panel must deal with an appeal is set out in s 328, which relevantly provides:

328   Procedure on appeal

(1)   An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—

(a)   2 medical assessors,

(b)   1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.

(2)   The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

(2A)   To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.

(3)   Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.

…

(5)   The Appeal Panel may confirm the certificate of assessment given in connection with the medical assessment appealed against, or may revoke that certificate and issue a new certificate as to the matters concerned. Section 326 applies to any such new certificate.

(6)   The decision of a majority of the members of an Appeal Panel is the decision of the Appeal Panel.

  1. Section 376 of the 1998 Act authorises the PIC to issue guidelines with respect to the assessment of permanent impairment of an injured worker as a result of an injury and such other matters as a provision of the Workers Compensation Acts provides may be the subject of Workers Compensation Guidelines (see also Sch 1 to the Personal Injury Commission Act 2020 (NSW)).

  2. As was noted in Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [40] (Barrett JA, with Gleeson JA agreeing), s 328(2), which confines the review to the grounds identified by the applicant for review, was inserted in the legislation in 2010 in apparent response to this Court’s earlier decision in Siddik v WorkCover Authority of NSW [2008] NSWCA 116.

  3. Under s 322(1) of the 1998 Act, the assessment of the degree of permanent impairment has to be made in accordance with workers compensation guidelines as in force at the time the assessment is made and issued for that purpose. There are two such Guidelines, namely the Evaluation Guidelines (which are made under s 376 of the 1998 Act) and the Dispute Guidelines (which are made under ss 328, 331 and 376 of the 1998 Act). The nomenclature “the Guidelines” has the potential to mislead because it is now well settled that they have the force or effect of delegated legislation (see Ballas at [97] per Bell P and Payne JA).

(A)   Evaluation Guidelines

  1. Chapter 1 of the Evaluation Guidelines sets out principles of assessment. Paragraph 1.6 states:

1.6   The following is a basic summary of some key principles of permanent impairment assessments:

a.   Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:

▪   whether the condition has reached Maximum Medical Improvement (MMI)

▪   whether the claimant’s compensable injury/condition has resulted in an impairment

▪   whether the resultant impairment is permanent

▪   the degree of permanent impairment that results from the injury

▪   the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality,

▪   if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.

b.   Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions.

c.   In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/condition in their report and specify the causal connection to the relevant compensable injury or medical condition.

d.   The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought – see also paragraphs 1.43 and 1.44 in the Guidelines.

  1. Chapter 11 of the Evaluation Guidelines deals with psychiatric and psychological disorders. It prescribes the method for assessing psychiatric impairment. It is stated in [11.1] that the evaluation of impairment requires a medical examination.

  2. Paragraph 11.4, which deals with diagnosis, states:

The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment arising from any of the somatoform disorders (DSM IV TR, pp 485–511) are excluded from this chapter.

  1. Paragraph 11.6 states:

It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker’s psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests – including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations – may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI).

  1. Paragraph 11.11 describes the PIRS. Paragraphs 11.11 and 11.12 are relevant:

Psychiatric impairment rating scale (PIRS)

11.11   Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:

1.   Self care and personal hygiene (Table 11.1) - Activities of daily living

2.   Social and recreational activities (Table 11.2) - Activities of daily living

3.   Travel (Table 11.3) - Activities of daily living

4.   Social functioning (relationships) (Table 11.4)

5.   Concentration, persistence and pace (Table 11.5)

6.   Employability (Table 11.6).

11.12   Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.

  1. The Evaluation Guidelines describe the rating of psychiatric impairment using the PIRS as a two-step procedure, involving the determination of the median class score and the calculation of the aggregate score. The method of determining the median class score is described in [11.14]-[11.16] and the calculation of the aggregate score is described in [11.17].

  2. The Evaluation Guidelines contain a conversion table at [11.20] which enables the aggregate score to be converted to a percentage score.

  3. As the plurality stated in Ballas at [87], the nomenclature used in the Evaluation Guidelines is apt to confuse. This is because:

  1. the Guidelines use the word “scales” to describe areas or categories of functional impairment, which is not a natural use of that word;

  2. the ordinary meaning of the word “classes” is closer to the concept of “categories”, but “classes” is used in the Guidelines to mean degrees of impairment; and

  3. there is a range of impairment from 1-5 in the Guidelines which is more akin to the concept of a “scale”.

  1. As is made clear in [11.11] of the Evaluation Guidelines, behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment. The only scale which is relevant to this proceeding is that relating to “Social functioning (relationships)” (to which Table 11.4 refers). It is significant to note the inclusion of the word “relationships” in the description of the scale concerning Social functioning in [11.11].

  2. As [11.12] of the Evaluation Guidelines states, impairment in each area (i.e., scale) is rated using “class descriptors”, which is the information set out in each Table alongside the classes which range from 1 to 5 in accordance with severity.

  3. Given their significance in this proceeding, it is desirable to set out Table 11.4, which relates to Social functioning (relationships). Classes 2 and 3 and their respective descriptors are of particular relevance to this proceeding:

Table 11.4: Psychiatric impairment rating scale – social functioning

Class 1

No deficit, or minor deficit attributable to the normal variation in the general population: No difficulty in forming and sustaining relationships (eg a partner, close friendships lasting years).

Class 2

Mild impairment: existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3

Moderate impairment: previously established relationships severely strained, evidenced by periods of separation or domestic violence. Spouse, relatives or community services looking after children.

Class 4

Severe impairment: unable to form or sustain long term relationships. Pre-existing relationships ended (eg lost partner, close friends). Unable to care for dependants (eg own children, elderly parent).

Class 5

Totally impaired: unable to function within society. Living away from populated areas, actively avoiding social contact.

(B)   Dispute Guidelines

  1. The Dispute Guidelines contain the following relevant provisions. Part 5 deals with reviewing or appealing a medical assessment certificate. Paragraph 5.16 states that a panel “will undertake a preliminary review of the matter”. Following this, [5.17]-[5.20], and [5.24] state:

5.17   The MAP may adopt any of the following procedures in accordance with the needs of the individual case:

5.17.1   ‘on-the-papers’ review

5.17.2   further medical examination by an approved medical specialist on the appeal panel

5.17.3   assessment hearing.

5.18   The MAP decides which of the procedures is to be adopted.

5.19   The decision of the appeal panel is to be informed by its assessment of the needs of the particular case.

5.20   Where a further medical examination is required, the Registrar will advise the worker of the time and place of the examination.

…

5.24   Where the MAP determines a matter is not capable of determination on the papers, either with or without a further medical examination, a hearing will be arranged.

  1. It is made clear that an appeal panel has a discretion to adopt any of the procedures in [5.17.1]-[5.17.3] based on its assessment of the needs of the case after conducting a preliminary review ([5.16]). The plaintiff, though made unclear by dint of the language engaged in her submissions (see at [18] above), sought re-examination under [5.17.2]. In contrast, the first defendant submitted that the matter should be determined on the papers under [5.17.1], which is evidently the course which the Panel adopted here.

  2. It is well settled that the statutory regime provides for a method of dispute resolution by expert evaluation. As Campbell J stated in Ferguson at [13], medical assessors at both first instance and as members of a medical appeal panel, “are not only entitled, but obliged, to bring their professional expertise to bear in the exercise of their functions” (citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]).

  3. With those relevant provisions and legal principles in mind, I will now explain why I do not accept any of the plaintiff’s remaining three grounds of review.

Ground 1: Causation of plaintiff’s marital breakdown

  1. The plaintiff contended that the Panel fell into reviewable error because it did not discharge its statutory function or duty but simply conducted a preliminary review and did not proceed to determine whether there was demonstrable error in Dr Clayton Smith’s assessment of the cause of the plaintiff’s marital breakdown. This ground is rejected for the following reasons.

  2. First, as is made clear at [3] of the Panel’s reasons, the Panel correctly understood that the plaintiff challenged the MAC on the basis of demonstrable error and incorrect criteria.

  3. Secondly, the Panel stated at [4] that it had “conducted a preliminary review of the Medical Assessors’ medical assessment in the absence of the parties and in accordance with the Guidelines”. Fairly read, the reasons indicate that, having conducted a preliminary review, the Panel proceeded to determine the appeal on the papers, as it was entitled to do under [5.17.1] of the Dispute Guidelines. This was the course which the first defendant had urged it to adopt. I reject the plaintiff’s submission that the Panel’s reasons were confined to explaining its preliminary review as opposed to its determination of the review.

  4. Thirdly, the Panel gave detailed reasons why it rejected the plaintiff’s claim that Dr Clayton Smith’s assessment involved demonstrable error or the application of incorrect criteria.

  5. Fourthly, for reasons which I will develop below, the Panel did not err in not re-examining the plaintiff in circumstances where the Panel was not satisfied that the MAC should be revoked.

  6. Fifthly, the Panel confirmed the MAC, as it was empowered to do under s 328(5) of the 1998 Act.

  7. Sixthly, I do not accept the plaintiff’s submission that Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47] per Hamill J; Broadspectrum (Australia) Pty Ltd v Wills [2018] NSWSC 1320 at [79] per Harrison AsJ or Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532 at [121] per N Adams J support her case. The passage relied upon in Sadsad is consistent with more recent authority (see Ballas at [79] per Bell P and Payne JA) to the effect that a beneficial or restrained construction of an administrative decision-maker’s reasons cannot disguise a jurisdictional error. But the plaintiff here has not established any such error or, indeed, any error of law on the face of the record.

  8. The passage in Broadspectrum adds nothing to what is said in Sadsad. Moreover, unlike either of those decisions, there is no basis to find that the Panel here filled in any gaps in Dr Clayton Smith’s path of reasoning.

  9. Finally, the passage in Martinovic relied upon by the plaintiff is in response to a submission by the employer in that case that the Court should infer that no re-examination was conducted by the appeal panel there because, despite the claimant having requested such a procedure, the appeal panel was satisfied with the primary decision-maker’s decision. N Adams J then said at [121]:

The difficulty with Corporate Projects’ argument is that it does not address the nub of the complaint made by Mr Martinovic which is that his complaint about his assessment by the AMS and request for a re-examination was completely ignored by the Appeal Panel. This complaint was closely connected with the radiculopathy complaint which the Appeal Panel also ignored. In these circumstances it is no answer to say that it could only have been if the Panel was satisfied of error that any re-examination ought to have been ordered; no finding of error could have been made if the complaint was not even addressed.

  1. There are two reasons why this passage does not assist the plaintiff here. First, it appears that her Honour was not referred to Davies J’s decision in New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 (NSW Police Force) regarding the limits of the power of an appeal panel to conduct a re-examination (see further at [94ff] below). Secondly (and less significantly), it is evident that her Honour linked the failure to re-examine in that case with the worker’s complaint about radiculopathy in the lower limbs.

  2. For these reasons, ground 1 is rejected.

Ground 2: Assessment of Social functioning scale

  1. The plaintiff contended that the Panel fell into reviewable error because it did not conduct a “full assessment” of the relationship between the plaintiff and her ex-husband, both before and after their separation. Counsel submitted that the Panel was obliged to consider all aspects of that relationship before confirming Dr Clayton Smith’s assessment of the matter as Class 2 and not Class 3 as advanced by the plaintiff. He contended that if a full assessment had been carried out, the Panel would have found that that relationship was “severely strained” within the class descriptor for Class 3. Counsel referred to Ferguson at [27] in support of these contentions. That paragraph is as follows (emphasis added):

It can be seen from paragraph [39] of its reasons that the Appeal Panel accepted a period of separation had occurred between March and August 2015. However, with respect, the Appeal Panel seems to have declined to inquire into the critical question that impressed the AMS which related to the markedly changed nature of the previous relationship after August 2015, that is to say, the change from a life partnership involving sexual intimacy to a more platonic friendship. The members of the Appeal Panel glossed over this by declining to inquire into that question on the basis that “the nature of the relationship was a private matter between them”. With respect, that sensitivity was misplaced. It was necessary for the Appeal Panel to deal with the substantive question of whether there had been that marked change in the relationship following the separation. Only after making a full assessment of all aspects of the relationship before and after the seperation [sic] could a decision be made about whether it was “severely strained”. Doubtless the Appeal Panel may have been at some disadvantage given that it did not have the benefit of the “face to face” assessment enjoyed by the AMS.

  1. There are several fundamental difficulties with the plaintiff’s submissions. First, insofar as the Panel’s decision is concerned (and, of course, it is the decision the subject of judicial review, as opposed to that of Dr Clayton Smith), the plaintiff’s complaint that Dr Clayton Smith erred in not conducting a “full assessment” was not one of the grounds clearly raised before the Panel in either the plaintiff’s application for review or in the accompanying written submissions. As Davies J held in NSW Police Force at [52], the reference in s 328(2) of the 1998 Act to “‘the grounds of appeal on which the appeal is made’ is directed to greater particularity than simply categorising the appeal as being within one or more of the grounds in s 327(3). That is the purpose of requiring ‘submissions…detailing the grounds of the appeal’”. As already noted, in her submissions to the Panel, the plaintiff referred to other unrelated paragraphs from Ferguson, but not [27].

  2. It is difficult to see how the Panel could fall into reviewable error in relation to a substantive matter which is not squarely raised in the plaintiff’s grounds of appeal or attached submissions.

  3. Secondly, Campbell J’s observations in Ferguson at [27] (see at [82] above) must be understood in the circumstances of that particular case. In Ferguson, Campbell J held that the appeal panel adopted a legally incorrect approach in proceeding to make its own assessment without it having itself first determined that one of the grounds of appeal in s 327(3) was established (see at [20]ff). Campbell J then focused on the appeal panel’s reasoning as to whether the failure of the claimant’s relationship with her sometime partner had the degree of severity necessary to assess it as Class 3 in the scale of Social functioning. Paragraph 27 of Ferguson needs to be read in this context. I do not see Campbell J as laying down a general principle in that paragraph. Rather, his Honour was emphasising the need for the appeal panel in that case to conduct a full assessment of the relationship between the claimant and her companion in order to assess whether or not it was “severely strained”. A “full assessment” required the appeal panel there to inquire into “the critical question that impressed the AMS”, being a significant change from a life partnership involving sexual intimacy to a more platonic friendship.

  4. There was no similar failure to inquire by the Panel in this proceeding. The Panel engaged in a full and comprehensive on the papers assessment of the plaintiff’s grounds of appeal, including the issue of causation. Moreover, the Panel did not err in not having one of the two AMS’s re-examine the plaintiff or ask her questions on topics such as her ex-husband’s gambling. Unless the Panel determined to revoke the MAC there was no power for one of the AMS’s to re-examine the Plaintiff. Moreover, as noted above, in her formal application the Plaintiff disavowed any request to present oral submissions to the appeal panel (i.e. to have the Panel conduct a hearing). .

  5. For completeness, to the extent that this ground challenges the Panel’s ultimate finding on causation it is appropriate to say something about the limited scope of any such judicial review challenge. The circumstances in which a finding of fact can be set aside in a judicial review challenge are confined (the position is different in the case of a jurisdictional fact (see, e.g., QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442), but the plaintiff makes no claim in that regard). The following principles were stated by Spigelman CJ (with whom Mason P, Sheller and Powell JJA agreed) in Bruce v Cole (1998) 45 NSWLR 163 at 187-188 (as cited, e.g., in Sabanayagam v St George Bank Ltd [2016] NSWCA 145 at [119]; State of New South Wales v Shepherd [2019] NSWCA 261 at [29]):

Restrictions on judicial review of findings of fact have long been acknowledged. The present state of the law is not entirely clear. In Australian Broadcasting Tribunal v Bond (at 355-357), Mason CJ sought to summarise the relevant principles. The matter remains one of some difficulty: see Aronson and Dyer (at 281-289); Bayne, “The Court, the Parliament and the Government” (at 19-26). The principles I apply are as follows:

(1)   There is no error of law in making a wrong finding of fact: see, eg, Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Broadcasting Tribunal v Bond (at 356);

(2)   An inference of fact must be open to be drawn: Australian Broadcasting Tribunal v Bond (at 356), per Mason CJ; see also Minister for Immigration and Ethnic Affairs v Teo (at 199); S v Crimes Compensation Tribunal [1998] 1 VR 83 especially at 90-91. Tribunal v Bond (at 356), per Mason CJ; see also Minister for Immigration and Ethnic Affairs v Teo (at 199); S v Crimes Compensation Tribunal [1998] 1 VR 83 especially at 90-91.

(3)   The making of findings and the drawing of inferences without any evidence to support them is an error of law: see, eg, Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 481, 483; Australian Broadcasting Tribunal v Bond (at 355-356).

(4)   Acting without probative evidence is the equivalent of no evidence…

  1. In addition, the plurality judgment in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] establishes that what amounts to material that could support a factual finding is ultimately a question for judicial decision and is a question of law.

  2. Accordingly, where there is no probative evidence to support a finding of fact, this may amount to jurisdictional error and/or error of law on the face of the record (assuming that, for the purposes of the latter error that the reasons of the Panel form part of the record by virtue of s 69(4) of the Supreme Court Act 1970 (NSW), which would require the Panel’s decision to be characterised as an “ultimate determination” and also that the Panel is a “tribunal”: see Ferguson at [32]-[33]).

  3. But no evidence means what it says. If, unlike the position in Ferguson, there is some probative evidence to support a finding of fact, this head of review must fail (see Yenuga v Attorney General (NSW) [2023] NSWCA 227 at [63] per Griffiths AJA (with whom Ward P and Adamson JA agreed)).

  4. As noted in the summary of the Panel’s reasons at [23] above, the Panel went to some length in describing the plaintiff’s submissions. The Panel noted the plaintiff’s submission that Dr Clayton Smith’s finding that the breakdown of the marriage could not be attributed to the effects of the psychiatric injury was contrary to the weight of the evidence, was unsupported by the evidence, and demonstrated that he was unaware of a significant fact or misunderstood it. The Panel then identified the evidence which the plaintiff claimed was inconsistent with Dr Clayton Smith’s finding.

  5. The difficulty which confronts the plaintiff with this ground of judicial review (the scope of which is narrower than that applying to the task of determining whether there is a “demonstrable error” in the context of a statutory appeal under s 327 of the 1998 Act) is that there was some evidence to support the Panel’s confirmation of Dr Clayton Smith’s finding on causation, including the evidence that the plaintiff and her ex-husband maintained an amicable relationship despite their separation. Moreover, the Panel quite correctly concluded at [30] of its statement of reasons that none of the evidence which the plaintiff relied on as being inconsistent with Dr Clayton Smith’s finding on causation actually established the cause of the breakdown. Instead, it was directed to the existence and psychological sequelae of that breakdown. The plaintiff has demonstrated no error in this part of the Panel’s reasons.

  1. In any event, even if (contrary to the above) there was no evidence to support the Panel’s confirmation of Dr Clayton Smith’s finding, any such error would not be material given the Panel’s reasoning (as summarised at [27] and [31]-[33] above), to the effect that the evidence relied on by the plaintiff on this subject was consistent with a Class 2 impairment and not a Class 3 impairment. The plaintiff’s counsel correctly acknowledged that to succeed in her judicial review challenge the plaintiff had to establish reviewable error in both limbs of the Panel’s reasons for confirming the MAC.

  2. Finally, I shall explain why there is no basis in the plaintiff’s complaint that she was not re-examined by the Panel as she requested. This complaint is inconsistent with NSW Police Force at [33] where Davies J said:

… if an assessment can be carried out in the course of an appeal that assessment cannot take place before the Appeal Panel has determined that there is an error in the certificate leading to the need for a further assessment. Such an assessment may be needed because the Panel, although in a position to revoke a certificate for error, is not in a position to issue a new one without such an assessment.

  1. This view has been followed in many subsequent cases, including quite recently by Chen J in Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38 at [130]. His Honour identified at [125] many other cases in which Davies J’s view has been applied and adopted. The plaintiff did not contend that NSW Police Force was clearly wrong. I respectfully agree with Davies J’s analysis and observations and will follow them. Accordingly, the Panel’s power to decide that one of the appointed AMS’s should conduct a re-examination of an appellant only arises after it has determined that there is an error in a medical assessment certificate, which then requires the need for a further assessment and a fresh certificate.

  2. Ironically, the proper legal position is accurately reflected in [21] of the plaintiff’s submissions to the Panel (see [18] above) where the plaintiff asked the Panel to revoke Dr Clayton Smith’s MAC and re-examine the plaintiff, implicitly for the purpose of a new certificate being issued.

  3. The Panel had no power in the circumstances of this matter to re-examine the plaintiff because no error was found in Dr Clayton Smith’s MAC such that it could be revoked. Accordingly, no valid criticism can be levelled at the Panel for not explaining why it declined to re-examine the plaintiff. It simply had no power to do so in the particular circumstances here.

  4. For these reasons, this ground is rejected.

Ground 4: Panel’s failure to re-examine the plaintiff

  1. This ground must fail for the reasons given immediately above concerning the Panel’s lack of any power to conduct a re-examination.

(e)   Conclusion

  1. For these reasons, the amended summons will be dismissed, with costs.

**********

Decision last updated: 15 February 2024

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