Kelly v Insurance Australia Limited

[2019] NSWSC 1025

Supreme Court

New South Wales

Medium Neutral Citation:	Kelly v Insurance Australia Limited [2019] NSWSC 1025
Hearing dates:	31 May 2019
Date of orders:	27 August 2019
Decision date:	27 August 2019
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The proceedings are dismissed. 2. The plaintiff is to pay the first defendant’s costs as agreed or assessed.
Catchwords:	ADMINISTRATIVE LAW – Judicial review – Review of decision of medical assessor – Whether medical assessor breached relevant guidelines – Whether there was evidence to support findings – Whether reasons were inadequate
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	IAG Limited t/a NRMA Insurance v Khaled [2019] NSWSC 320; (2019) 87 MVR 486 Insurance Australia Limited v O’Shannessy [2015] NSWSC 1047; (2015) 72 MVR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Limited t/a NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55
Category:	Principal judgment
Parties:	Lisa Kelly – Plaintiff Insurance Australia Limited – First defendant Dr Nel Wijetunga, Medical Assessor – Second defendant Mark Fowler, Proper Officer, Motor Accidents Medical Assessment Service – Third defendant
Representation:	Counsel: R Quickenden – Plaintiff K P Rewell SC – First defendant   Solicitors: Whitelaw McDonald Solicitors – Plaintiff Moray and Agnew Solicitors – First defendant
File Number(s):	2018/253611
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By summons filed on 17 August 2018, Lisa Kelly (“the plaintiff”) seeks (inter alia) the following orders:

1. a declaration that a medical assessment conducted by Assessor Dr Nel Wijetunga (“the second defendant”) dated 22 February 2018 is vitiated by jurisdictional error and/or error of law on the face of the record;

2. a declaration that the Proper Officer (“the third defendant”) erred in law in not finding that there was a reasonable suspicion that the medical assessment of the second defendant dated 22 February 2018 was incorrect in a material respect;

3. an order quashing the decision of the third defendant to dismiss an application for review of that medical assessment;

4. an order that the plaintiff’s application for a review of the medical assessment be remitted to the Medical Assessment Service of the State Insurance Regulatory Authority to be dealt with according to law.

2. Although declaratory relief has been sought by the plaintiff in respect of decisions made by both the second and third defendants, it was accepted by the parties that the outcome of the plaintiff’s case in respect of the former would dictate the outcome of her case in respect of the latter. It is also important to emphasise at the outset that these are proceedings for judicial review. This is not an occasion on which to review the merits of any decision.

3. The relief sought was opposed by the first defendant, who was the only active defendant in the proceedings.

4. A Court Book (“CB”) containing all evidentiary and associated material [1] was tendered at the commencement of the hearing with the consent of both parties.

THE FACTS

1. Exh A.

The subject motor vehicle accident

5. The plaintiff was involved in a motor vehicle accident on 21 December 2004 (“the subject accident”) in which she alleges that she sustained injuries to her neck, back, chest, shoulders, left knee and right ankle. Following the subject accident, she made a claim pursuant to the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) against the first defendant who is the Compulsory Third Party insurer of the vehicle said to have been at fault.

6. Following the making of that claim, the first defendant disputed that the plaintiff’s alleged injuries gave rise to a level of whole person impairment which was greater than 10%. Such a dispute having arisen, the plaintiff underwent a series of medical assessments which have culminated in the institution of the present proceedings.

The first statutory medical assessment

7. The first statutory medical assessment of the plaintiff’s injuries was undertaken by Assessor Reid on 24 October 2006. Following that assessment, Assessor Reid issued a certificate dated 13 November 2006 [2] in which he concluded that the plaintiff had suffered injuries to her right shoulder, left knee and right ankle in the subject accident. He concluded [3] that those injuries gave rise to a whole person impairment of 9%, comprising:

1. 2% in respect of the right shoulder;

2. 2% in respect of the left knee; and

3. 5% in respect of the right ankle.

   2. Commencing at CB25.

   3. CB42.

8. Assessor Reid accepted that the plaintiff had also suffered soft tissue injuries to her neck and back in the subject accident, but concluded that those injuries did not give rise to any whole person impairment.

The second statutory medical assessment

9. The second statutory medical assessment was undertaken by Assessor Ryan on 13 July 2010. Following that assessment, Assessor Ryan issued a certificate on 4 August 2010 [4] in which he concluded [5] that the plaintiff’s whole person impairment arising from the subject accident was 10%, comprising:

1. 5% in respect of the neck;

2. 2% in respect of the right shoulder;

3. 3% in respect of the right ankle.

   4. Commencing at CB45.

   5. CB61-62.

10. Assessor Ryan also found that the plaintiff suffered a soft tissue injury to her back in the subject accident. However, consistent with the conclusion reached by Assessor Reid, Assessor Ryan concluded that this injury did not give rise to any whole person impairment.

The April 2011 incident

11. On 15 April 2011 the plaintiff was sitting astride a motorbike parked in the driveway of a house. Her left leg was stabilising the motorbike. She asserts that she experienced pain, whereupon her left knee gave way causing her to fall to the ground. The motorbike then fell on top of her left leg, causing a fracture. [6]

    6. CB22.

The motor vehicle accident on 5 March 2012

12. On 5 March 2012 the plaintiff was involved in a second motor vehicle accident whilst on her way home from work. Subsequent to that accident she was absent from work for a period of approximately 2 years due to psychological injury. [7]

    7. CB22.

The plaintiff’s spinal surgery

13. In May 2016 the plaintiff underwent (inter alia) a laminectomy. [8]

    8. CB23.

The third statutory medical assessment

14. The third statutory medical assessment, which is the focus of the present proceedings, was undertaken by the second defendant on 7 February 2018. Following that assessment, the second defendant issued a certificate on 22 February 2018 [9] in which she concluded [10] that the plaintiff’s whole person impairment arising from injuries sustained in the subject accident was 6%, comprising:

1. 2% in respect of the right shoulder;

2. 3% in respect of the right ankle; and

3. 1% in respect of scarring of the right shoulder and ribs.

9. Commencing at CB115.

10. CB152-153.

THE ERRORS ASSERTED BY THE PLAINTIFF

15. Although the precise bases upon which the plaintiff challenges the decision of the second defendant became somewhat blurred in the course of submissions, it emerged that the plaintiff asserts that there were four errors on the part of the second defendant. I will deal with those asserted errors individually.

The first ASSERTED error

The failure OF THE SECOND defendant to FULLY set out the plaintiff’s injuries

The second defendant’s reasons

16. The second defendant listed the injuries to be assessed in the following terms: [11]

    11. CB117.

List of Injuries to be Assessed

The following injuries, as listed in the referral letter from MAS, were assessed:

Back — soft tissue injury [12]

12. My emphasis.

Neck — soft tissue injury

Right shoulder — soft tissue injury

Left shoulder — soft tissue injury

Left knee — soft tissue injury

Left leg — fractured left tibia

Right ankle — soft tissue injury

Chest — soft tissue injury

Thoracic outlet syndrome — soft tissue/compression injury

Abdomen — soft tissue injury

Scarring —right shoulder, right and left ribs, left ankle, left side skull, back

The following injuries have also been referred to MAS and will be assessed by another MAS Assessor:

Left temporomandibular joint - soft tissue injury

17. The second defendant also specifically referred to the first [13] and second [14] medical assessments, as well to various examinations of the plaintiff by other medical practitioners. [15]

    13. CB139.

    14. CB139-140.

    15. Commencing at CB133.

18. Under the heading “conclusions”, [16] the second defendant said the following in respect of the plaintiff’s asserted back injury:

    16. CB145-147.

Diagnosis and Causation

Lower back

Ms Kelly describes an onset of lower back pain after the motor vehicle accident which was considered significant resulting in her car being written off, involving a head on collision and following which she described direct impact with the airbags.

It is also noted that Dr Glass, in his 2005 report, described Ms Kelly's two-month history of back pain, during which time she had also described pain referring down her left hip.

When this was put to Ms Kelly, she was unable to recall this.

It is plausible that given the force of the motor vehicle accident on her upper and lower body, that she would have sustained a musculoligamentous strain of the lower back.

MRI findings of the lumbar spine did not appear to be undertaken until February 2011, despite describing significant pain in the lower back.

She was not referred to a specialist in relation to her lower back until she consulted Dr Papanatou (sic) in 2011, seven years post-accident.

Prior to this, there had been several medical assessments, which reported as follows:

Dr Dryson 22.2.06 normal range of movement of lower back

Dr Kuru considered there to be clinical evidence of lumbar disc disruption in

2006.

Dr Reid in 2006 documented straight leg raising to 80 degrees on both sides.

He reported normal range of spinal movement.

The findings were not sufficient to warrant investigation.

Dr Glass 23-06-05 Made little reference to lower back aside from tenderness in lumbar spine, and no specific diagnosis was provided

Dr Ostinga 13-06-06 - Full range of movement of lumbar spine, with lower back pain and radiation to her right leg with normal neurological examination

Dr Kuo report dated May 2006 describes that her lower back plays up regularly and she describes being uncomfortable over her right side. Symmetrical restriction in trunk rotation and some restriction in flexion.

Dr Schwarzer 11 August 2008 described diffuse tenderness over her lower back and she described her neck condition of more of a concern. He documented normal flexion and slight restriction in lateral flexion and extension which was associated with pain.

However, after a fall in April 2011, she sought the attention of Dr Papantinou (sic) in December 2011.

Prior to this fall, her symptoms were considered mild, with variable range of restriction from year to year.

On the balance of probability, the clinical evidence reflects a musculoligamentous strain of her lumbar spine, which remained relatively stable for 7 years up until the time of fall from her bike in 2011.

There was a subsequent deterioration in symptoms leading on to a requirement for surgery. Symptoms became constant and severe and associated with a bilateral radiculopathy. Those symptoms were not reported until seven years post-injury.

Therefore, the subsequent progression of symptoms leading on to the requirement for spinal surgery and her impairment arising from the spinal surgery is not causally related to the motor vehicle accident in 2004.

19. The second defendant proceeded to set out the injuries which, in her opinion, were not caused by the subject accident in the following terms: [17]

The following injuries WERE NOT caused by the motor accident:

Lower back - soft tissue injury causally related with a 0% WPI determined in 2010 - subsequent development of severe discogenic pain that was not causally related to the accident, resulting in L4-S1 spinal fusion.

Left knee

Thoracic outlet syndrome

Left shoulder - nil discrete injury or symptoms described

Left leg - due to unrelated accident in April 2011

17. CB149.

20. The second defendant then set out a table of the injuries which, in her opinion, were caused by the subject accident, along with the whole person impairment which she found had resulted from each of them: [18]

    18. CB152.

Body Part or System	AMA Guides/ Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPi* due to motor accident
Cervical spine	AMA4, Ch3, pg 103	Yes	0	0	0
Right shoulder	AMA4, Ch 3, Figs 38, 41, 44, Pgs 44, 45, 46	Yes	2	0	2
Right ankle	AMA4, Ch 3, Table 42	Yes	3	0	3
Scarring	TEMSKI, MAA, pg 53	Yes	1	0	1

* %WPI = percentage whole person impairment

Submissions of the plaintiff

21. Counsel for the plaintiff submitted that it was incumbent upon the second defendant to list the injuries which had been referred to her for assessment, to determine which of those injuries had been caused by the subject accident, and to then evaluate the degree of permanent impairment caused by those injuries. Counsel submitted that the second defendant had failed to include the plaintiff’s lower back injury in the list of injuries, and that such failure amounted to a breach of various provisions of the Guidelines for assessment of permanent impairment (“the Guidelines”), particularly clauses 1.19, 1.23 and 1.36.

22. Counsel submitted that although the second defendant had acknowledged that the plaintiff sustained a lower back injury in the subject accident, she should have:

1. acknowledged the lower back injury in the list of injuries to be assessed;

2. attributed a level of permanent impairment to that injury;

3. attributed a level of permanent impairment caused to the plaintiff’s low back by any subsequent injury; and

4. determined the level of permanent impairment of the lower back injury caused by the accident.

23. It was submitted that having failed to take such steps, the second defendant had fallen into error.

Submissions of the first defendant

24. Senior counsel for the first defendant submitted that the second defendant had specifically included, in the list of injuries to be assessed, an injury to the back. He also pointed to the fact that the second defendant had made reference in her reasons to a back injury causing “severe discogenic pain” and “resulting in L4-S1 spinal fusion” amongst injuries which, in her opinion, were not caused by the accident. It was submitted that in these circumstances, no error had been established, and that the complaint made by the plaintiff that her back injury was not included in the list of injuries to be assessed was both incorrect and unnecessarily pedantic.

25. It was submitted that the second defendant had made it abundantly clear that she accepted that a low back injury of a soft tissue nature had been caused by the accident, but that what the Act and Guidelines mandated was a process of assessment, as opposed to the content of a list of injuries.

26. To the extent that the second defendant did not list any back injury in the table of injuries which, in her opinion, were caused by the accident, [19] senior counsel submitted that this was explained simply by the fact that the second defendant had concluded that any low back injury sustained in the subject accident had not given rise to any degree of whole person impairment.

    19. At [20] above.

27. Senior counsel further submitted that none of the specific provisions of the Guidelines upon which the plaintiff relied had been breached. He submitted, in particular, that in circumstances where the second defendant had found that there was no whole person impairment of the lower back arising from the subject accident, and where she had found that the plaintiff’s need for surgery had come about as a consequence of matters unrelated to the subject accident, clause 1.36 of the Guidelines was irrelevant.

Consideration

28. It is appropriate to commence by setting out those provisions of the Guidelines which the plaintiff asserts were breached by the second defendant. Clause 1.19 of the Guidelines is in the following terms:

1.19   The assessor should consider the available evidence and be satisfied that there:

(i)   was an injury to the part being assessed caused by the accident;

(ii)   is a defined diagnosis that can be confirmed by examination; and

(iii)   is an impairment as defined at 1.11 of the MAA Guidelines.

29. Clause 1.23 of the Guidelines is in the following terms:

1.23   The evaluation should only consider the impairment as it is at the time of the assessment.

30. Clause 1.36 of the Guidelines is in the following terms:

1.36   The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor vehicle accident. If there is objective evidence of subsequent and unrelated injury condition resulting in permanent impairment in the same region, it’s value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is not objective evidence of the subsequent impairment, its possible presence should be ignored.

31. In my view, the first asserted error is not made out for a number of reasons.

32. To begin with, and contrary to the submissions of counsel for the plaintiff, it is plain from the second defendant’s certificate that a back injury was expressly included in the list of injuries to be assessed. [20] To the extent that counsel for the plaintiff based this asserted error on a failure by the second defendant to include a reference to the low back injury in the table setting out the injuries caused by the subject accident, and the associated assessment of whole person impairment in respect of those injuries, [21] I accept that the low back injury was not included in that table. However, when one considers that the reason for the inclusion of the table was (at least in part) to set out the whole person impairment attributable to injuries sustained in the subject accident, there was no utility in the second defendant including a reference to any back injury, for the simple reason that she had determined that such injury had not given rise to any impairment.

    20. At [16] above.

    21. At [20] above.

33. I am also not persuaded that the second defendant’s reasons set out in her certificate reflect a breach of any provision of the Guidelines. Contrary to the tenor of the submissions advanced by counsel for the plaintiff, and generally speaking, none of the provisions of the Guidelines upon which reliance was placed mandate the contents of a list of injuries. More specifically, there was no breach by the second defendant of clause 1.19. It is evident from the second defendant’s reasons that she considered all of the available evidence. She was satisfied that there was an injury to the low back sustained in the subject accident, but formed the view that such injury did not give rise to any whole person impairment. As far as clause 1.23 of the Guidelines is concerned, there could be no suggestion that the second defendant did anything other than consider any impairment as it was at the time of her assessment.

34. Further, clause 1.36 is directed not to injury per se, but to the process of evaluating permanent impairment, in circumstances where there is an identifiable impairment from an injury sustained in an accident, and an additional identifiable impairment caused by a subsequent event. In those circumstances, clause 1.36 of the Guidelines requires an assessor to identify the level of whole person impairment brought about by the subsequent event, as well as the level of whole person impairment arising from any injury sustained in the original accident. In the circumstances of this case, clause 1.36 had no role to play at all. This was because the second defendant found (consistent with the opinions of Assessor Reid and Assessor Ryan) that there was no identifiable whole person impairment arising from any injury to the plaintiff’s back in the subject accident, and that the need for the subsequent surgery was unrelated to such accident.

31. For all of these reasons, the second defendant’s approach was entirely correct, and did not reflect error.

32. If follows that this asserted error is not made out.

THE SECOND ASSERTED ERROR

THERE WAS NO EVIDENCE TO SUPPORT THE SECOND DEFENDANT’S FACTUAL FINDING THAT THE PLAINTIFF INJURED HER LOWER BACK IN THE APRIL 2011 INCIDENT

The second defendant’s reasons

37. Under the heading “Details of any relevant injuries or condition sustained since the motor accident” the second defendant recorded (inter alia) the following: [22]

In April 2011, she describes a further accident. She was using her friend's motorbike and ran back into the house to get her phone. On getting back on the bike, she experienced pain down the anterior aspect and lateral compartment of her left knee. Subsequently, the motorbike fell on the left lower extremity and she sustained compound fracture and a spiral fracture of the left tibia and fibula. She underwent open reduction and internal fixation of the left leg by Dr David Gill and remained in hospital for five days.

22. At CB121.

38. Having noted [23] that the plaintiff was involved in another motor vehicle accident on 5 March 2012, and having further noted that she had reported no change in symptoms from that accident, the second defendant stated: [24]

She was referred to Dr Papantoniou in December 2011.

At that stage she was experiencing constant central low back pain with associated sleep disturbance. He documented an old MRI scan of the lumbar spine with disc dessication and bulges. The subsequent MRI scans demonstrated two level discopathy, worse at L5/S1. In February 2012 he documented symptoms of bilateral sciatica.

He referred her to Dr Convasili in relation to her cervical spine.

She was reviewed by Dr Convasilli and he was under the impression that her symptoms from her neck were related to bilateral thoracic outlet symptoms.

Dr Neale in a letter dated 25 July 2012 (attachment A2) documents she was admitted to North Shore Private Hospital on 24 July 2012 for right transaxillary first rib resection for thoracic outlet syndrome. In further correspondence dated 13 June 2014 (attachment A3) she underwent transaxillary resection of her left first ribs.

She received treatment from Dr Perko in September 2012. This included right shoulder arthroscopy and capsular shift procedure. It reports that there was no Hills Sachs lesion. There was mild inflammatory changes in the capsule. The labrum had traumatic changes at the anteroinferior labrum but no detachment. The posterior labrum was visualized and there were some traumatic changes of the posterosuperior labrum. There was minor traumatic changes of the infraspinatus insertion, consistent with posterosuperior impingement.

She was advised by Dr Papantoniou that she would require a spinal fusion. However, he recommended should be rescheduled until after she completed any proposed pregnancy's (sic).

23. At CB122.

24. At CB122-123.

39. The second defendant then said: [25]

In May 2016, she underwent surgery by Dr Papantoniou in the form of L4/S1 laminectomy, decompression, discectomy, neurolysis, instrumented fusion, posterior fusion, PLIF, bone graft, paravertebral nerve blocks and fat fascia grafts.

Since then although her lower back pain has remained essentially unchanged she experiences less episodes of sharp pain, which were previously prompted by sudden movements.

More recently, in September 2016, she underwent rhizolysis of C5/6. She reports that this reduced pain at that level in the anterior aspect of her neck. However, she clarified that it did not reduce the pain at the level above C5/6 spinous process.

25. At CB123.

40. The second defendant then expressed her conclusions in respect of the plaintiff’s lower back injury, finding that the need for surgery was unrelated to the accident. [26]

    26. At [18] above.

Submissions of the plaintiff

41. The submissions advanced in support of this asserted error tended to overlap with those advanced in support of the third asserted error. However, as I understood it, counsel for the plaintiff submitted that there was no evidence to support the second defendant’s conclusion [27] that the April 2011 incident had resulted in an injury to the lower back requiring surgery, and that this amounted to an error.

    27. At [18] above.

42. Counsel submitted that the second defendant’s finding was based on her conclusion that prior to the April 2011 incident, the plaintiff’s symptoms were considered mild, and that it was only after the April 2011 incident the plaintiff had sought specialist care from Dr Papantoniou. It was submitted that such findings were made in the absence of evidence, and were inconsistent with other evidence which was before the second defendant.

Submissions of the first defendant

43. Senior counsel for the first defendant submitted that the second defendant was entitled, and indeed obliged, to have regard to the medical evidence which was before her at the time of the assessment. He further submitted that for the purposes of such assessment, the second defendant was entitled to draw such inferences as were reasonable and open from that evidence.

44. Senior counsel submitted that the evidence before the second defendant demonstrated that the plaintiff’s low back symptoms which she had experienced between December 2004 and early April 2011 were symptoms consistent with having sustained nothing more than a soft tissue strain. It was submitted that the second defendant had determined that such soft tissue symptoms had stabilised, and had not deteriorated in a period of almost seven years. It was submitted that such findings were open.

45. Senior counsel further submitted that the second defendant had concluded that there had been a significant deterioration in the plaintiff’s back condition following the April 2011 incident, and that the nature of her condition had changed in the sense that for the first time, she had commenced to suffer neurological symptoms. It was submitted that on the evidence, those symptoms had progressively increased in severity, and had resulted in surgery being carried out in 2016. It was submitted that the medical evidence before the second defendant sustained the inferences that she had drawn, and that no error was made out.

Consideration

46. In Insurance Australia Limited v O’Shannessy [28] Beech-Jones J said the following in relation to a challenge to the conclusion of an administrative decision-maker brought on the basis that there was no evidence to support a particular finding:[29]

    28. [2015] NSWSC 1047; (2015) 72 MVR 1.

    29. Commencing at [56].

[56] There remains to be considered the complaint that there was no evidence to support the challenged finding.

[57] A review of the authorities reveals that supervisory courts apply one of three standards of review to facts found by inferior courts and tribunals depending on the jurisdiction exercised by both.

[58] The first is applicable to facts the objective determination of which was a matter upon which the inferior court or tribunal’s jurisdiction depended (Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [36] to [38] per Spigelman CJ). If the facts are of that character then this Court can determine them (Timbarra id). With inferior courts there is a strong presumption against construing legislation as making “the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist” because of the inconvenience that the former would occasion (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; 59 CLR 369 at p 391 per Dixon J). A similar approach has been adopted with administrative decisions (QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [27] to [29] per Basten JA).

[59] The second standard is applicable where the facts being challenged form part of the determination of a state of satisfaction or an opinion upon which the exercise of power or jurisdiction of the inferior court or tribunal depended. The state of satisfaction or opinion is a “jurisdictional fact” (Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57] per French CJ). If the power is so conditioned then facts found in the course of forming that opinion or satisfaction can be reviewed on a wider basis than merely enquiring as to whether there was some evidence to support them (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 (“Eshetu”) at [138]ff per Gummow J). I discuss the scope of review further below, but it suffices to state that the opinion or state of satisfaction can be reviewed if “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration, Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (per Gummow and Hayne JJ; “SGLB”); Eshetu at [145] per Gummow J; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [34] and [37] per McHugh and Gummow JJ; “S20”). If this is demonstrated then relief under s 69 for jurisdictional error can be granted.

[60] The third standard is applicable if the challenged facts do not constitute part of the formation of such an opinion or satisfaction. Depending on the basis for judicial review such findings can only be challenged if there was no evidence to support them (Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at p 355-356 per Mason CJ (“Bond”); Eshetu at [138] per Gummow J; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [59] per Gaudron J; “Enfield”). In Bond Mason CJ stated (at p 356):

“Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

[61] Similarly in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA explained that a finding of fact for which there was some evidence to support it revealed no error of law even though it was made by “ignor[ing] the probative force of the evidence which is all one way” or could be described as “perverse” or one which “no reasonable person could have made” (at pp 155 to 156). In L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [34] Basten JA noted that one consequence of this approach was that “where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a ‘no evidence’ ground of review”.

47. In the course of her reasons [30] the second defendant, comprehensively and exhaustively, set out the history of the plaintiff’s lower back condition. The second defendant also set out histories provided by the plaintiff to medical practitioners from time to time in relation to that complaint. In doing so, the second defendant noted that prior to the April 2011 incident, the plaintiff’s symptoms were considered mild, with a variable range of restriction from year to year, and that it was only after the April 2011 incident that the plaintiff sought the intervention of Dr Papantoniou. On the basis of that evidence, the second defendant concluded that there was deterioration in the plaintiff’s symptoms following the April 2011 incident, leading to the necessity for surgery. She noted, in particular, that the plaintiff’s symptoms became constant and severe around that time, and were associated with bilateral radiculopathy, such symptoms not having been reported until 7 years post injury.

    30. At [18] above.

48. It is evident from the second defendant’s reasons [31] that she considered, in detail, the examinations which the plaintiff had undergone since the subject accident, and the histories she had given to those who examined her. She took into account the fact that, in particular, it was not until 2011 that the plaintiff was referred to Dr Papantoniou, in circumstances where there had been several medical assessments dating back to 2006 which reported varying symptoms, but which did not report findings which were considered sufficiently serious to warrant investigation, much less surgery. On the basis of the entirety of that evidence, the second defendant found that following the April 2011 incident there was a deterioration in the plaintiff’s symptoms which lead to the requirement for surgery, and that in all of those circumstances the need for surgery was unrelated to the accident.

    31. At [18] above.

49. In reaching all of these conclusions, the second defendant (as she was entitled to do) drew a number of inferences from the evidence as to the severity of the plaintiff’s low back condition prior to the April 2011 incident, compared with that condition afterwards.

50. Assuming, for present purposes, that the second standard referred to by Beech-Jones J is applicable, it could not be said in these circumstances that the second defendant’s determination was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. Alternatively, if the third standard referred to by his Honour is applicable, this is not a case where the evidence tended wholly to the contrary of the conclusions which were reached by the second defendant.

51. It follows that this asserted error is not made out.

THE THIRD ASSERTED ERROR

THE SECOND DEFENDANT FAILED TO TAKE INTO ACCOUNT THE CONTRIBUTION OF INJURIES SUSTAINED IN THE SUBJECT ACCIDENT TO THE INJURIES SUSTAINED IN THE APRIL 2011 INCIDENT

The reasons of the second defendant

52. In addressing the plaintiff’s left knee symptoms, the second defendant said: [32]

Ms Kelly describes pain over the iliotibial band on the lateral side.

After the motor vehicle accident she described pain over the medial joint line.. Additionally the MRI scan had demonstrated some bruising over the medial femoral condyle. As by her own description, she described her pre accident knee symptoms laterally. Therefore, given the findings from the MRI scan which correlate with the description of her symptoms at the time, the injury to this described area of the knee is no longer present. The injury to the medial aspect of the knee recovered and there was no further tenderness elicited in this area on further medical assessments. Neither had she described ongoing symptoms over the medial aspect of her knee.

Her ongoing symptoms are related to her pre accident status.

32. CB147.

53. In addressing the plaintiff’s left leg symptoms, the second defendant said: [33]

Ms Kelly describes an injury sustained when she was riding a motorbike. She described running inside to get her phone and while she was seated on the motorbike, she experienced experiencing pain shooting down from her left side and anterior aspect of her left thigh to her knee, which resulted in her fall. Her ability to run, and hold a motor bike with both feet on the ground indicate that her left knee was of reasonable functional capacity.

This is a presentation that correlates with "sciatic" type pain from the lower back. However, prior to April 2011, she had described "right sided Sciatica".

Despite describing pain radiating from her lower back to me at the time of today's assessment, the documentation which had been prepared by her indicates that the injury was as a result of her left leg giving way.

There is insufficient evidence presented to relate the fall from the motor bike to her left knee injury. There was no history of giving way. Similarly, the preceding reports do not document radicular complaints of sufficient severity to anticipate a neurological cause for the fall. It is probable that she had left knee symptoms. However as stated above, her symptoms at the lateral aspect of the left knee did not arise from the motor accident.

Therefore the left leg injury (fall from a bike and subsequent leg fracture) is not causally related to the accident in October 2004.

33. CB148.

Submissions of the plaintiff

54. In short, counsel for the plaintiff submitted that the second defendant had failed to consider whether any injury sustained in the subject accident had contributed to the April 2011 incident. He submitted that even if there was evidence to support a conclusion that the plaintiff sustained a low back injury in the April 2011 incident, the second defendant remained bound to assess whether any injury sustained in the subject accident had contributed to such later injury. It was submitted that the second defendant had failed to do so and that this reflected error.

Submissions of the first defendant

55. Senior counsel for the first defendant submitted that the second defendant had noted the plaintiff’s conclusion that the April 2011 incident was caused by a sudden pain and “giving way” in her left knee, but had disagreed with that conclusion in circumstances where it was open to her to do so. It was submitted that the second defendant’s conclusions [34] reflected the fact that she had fully dealt with the plaintiff’s contention that her fall in April 2011 may have been caused by radicular symptoms from her low back to her left knee, or by left knee symptoms from an injury sustained to that joint in the subject accident.

    34. CB147-148.

56. It was further submitted that the second defendant had properly undertaken the task of considering any contribution made by the injuries sustained in the subject accident to the plaintiff’s current low back impairment. Senior counsel submitted that having considered this issue, the second defendant had found that the symptoms from the soft tissue injury to the back in 2004 gave rise to no impairment. He also pointed out that the second defendant had concluded that any soft tissue symptoms were stable between 2004 and early April 2011, and had no role to play in the plaintiff’s development of neurological and radicular symptoms on and from April 2011. It was submitted that these matters had been explained by the second defendant in her reasons.

Consideration

57. It is plain from the second defendant’s reasons that she specifically considered whether the deterioration in the plaintiff’s symptoms following the April 2011 incident was as a consequence of, or was contributed to by, any injury sustained in the subject accident. She concluded, having considered all of the evidence, that there was no connection between the April 2011 incident and any injury which had been sustained in the subject accident. In particular, she found that there was no history of the plaintiff’s left knee giving way, nor was there any history of radicular complaints of sufficient severity to anticipate a neurological cause for the April 2011 incident.

58. It is evident from her reference to such matters that the second defendant took into account, and thoroughly considered, whether or not any injury sustained in the subject accident had contributed to the April 2011 incident. She concluded that there was no such contribution. That finding was open.

59. It follows that this asserted error is not made out.

THE FOURTH ASSERTED ERROR

THE SECOND DEFENDANT FAILED TO PROVIDE ADEQUATE REASONS FOR HER DECISION

Submissions of the plaintiff

60. Counsel for the plaintiff submitted that the second defendant’s reasons were inadequate and that in particular, she had failed to explain the methodology she had adopted in order to reach her conclusions, or the pathway of the reasoning that she had adopted. It was submitted, in particular, that the second defendant had failed to explain how the April 2011 incident related to the plaintiff’s symptoms leading to her spinal surgery.

Submissions of the first defendant

61. Senior counsel for the first defendant submitted that the second defendant had clearly explained the path of reasoning by which she had arrived at her conclusion. It was submitted that, far from being inadequate, the second defendant’s reasons were detailed and comprehensive.

Consideration

62. In determining whether the reasons of an administrative decision-maker are adequate, the question to be asked is whether the reasoning process can be discerned by reading the reasons as a whole, and by applying a beneficial construction to them. [35] Importantly, the reasons of an administrative decision-maker are not to be scrutinised overzealously, and their content is not that which might be expected of a judge. That said, they must demonstrate the path of reasoning which resulted in the particular conclusion(s) be reached. [36]

    35. Zahed v IAG Limited t/a NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55.

    36. IAG Limited t/a NRMA Insurance v Khaled [2019] NSWSC 320; (2019) 87 MVR 486 at [36]-[37] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6; Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43.

63. In the course of submissions, counsel for the plaintiff took the Court through specific parts of the second defendant’s reasons, essentially line by line, in an effort to make good the proposition that there was an error arising from the inadequacy of such reasons. That approach was fundamentally at odds with that outlined in the authorities to which I have referred, and was representative of the overzealous approach that such authorities eschew.

64. When the second defendant’s reasons are read as a whole, it is evident that she:

1. took into account the entirety of the evidence before her, including the assessments of a number of different medical practitioners;

2. examined the material underlying the conclusions expressed in those assessments, including the histories provided by the plaintiff;

3. determined that those conclusions were supportive of her own conclusion, namely that any low back injury sustained by the plaintiff in the subject accident was in the nature of a soft tissue injury only;

4. further concluded, based upon the evidence before her, that the plaintiff’s low back symptoms changed significantly following the April 2011 incident;

5. further concluded that as a consequence of the change in the nature and severity of those symptoms, the plaintiff was referred to Dr Papantoniou and underwent surgery; and

6. further concluded that in all of these circumstances, the need for surgery was unrelated to the subject accident.

65. Viewed in that way, the second defendant’s path of reasoning is both cogent, and more than adequately exposed. Indeed in my view, the second defendant’s reasons were both well-structured, and comprehensive. They leave me in no doubt as to her conclusions, and how she reached them.

66. It follows that this asserted error is not made out.

ORDERS

67. For the foregoing reasons I make the following orders:

1. The proceedings are dismissed.

2. The plaintiff is to pay the first defendant’s costs as agreed or assessed.

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Endnotes

Decision last updated: 27 August 2019