Mandoukos v Allianz Australia Insurance Limited

[2023] NSWSC 1023

Supreme Court

New South Wales

Medium Neutral Citation:

Mandoukos v Allianz Australia Insurance Limited [2023] NSWSC 1023

Hearing dates:

27 July 2023

Date of orders:

28 August 2023

Decision date:

28 August 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order, pursuant to r 59.10(1) of the UCPR, the time for filing of the summons in this Court be extended until 8 December 2022.

(2)   Order the amended summons filed 22 February 2023 be dismissed.

(3)   Order the plaintiff pay the first defendant’s costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – decision of medical assessor referred to review panel – where plaintiff underwent surgery for reported radicular symptoms – whether surgery rendered plaintiff’s injury non-minor – where no evidence about what the surgery involved was put before the medical assessor – no error made out

Legislation Cited:

Motor Accident Injuries Act 2017 (NSW)

Motor Accident Injuries Regulation 2017 (NSW)

Supreme Court Act 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229

COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669

Day v SAS Trustee Corporation [2021] NSWCA 71

Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) (2003) 77 ALJR 1088; [2003] HCA 26

Hunter v Insurance Australia Ltd trading as NRMA Insurance [2021] NSWSC 623

Lindeman Ltd v Colvin (1946) 74 CLR 313; [1946] HCA 35

Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; [1985] HCA 37

Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Rahman v Insurance Australia Ltd t/as NRMA Insurance (2022) 101 MVR 149; [2022] NSWSC 1079

Sydney Trains v Batshon [2021] NSWCA 143

Wang v State of New South Wales [2019] NSWCA 263

Category:

Principal judgment

Parties:

Nicholas Mandoukos (plaintiff)
Allianz Australia Insurance Limited (first defendant)
President of the Personal Injury Commission of New South Wales (second defendant)
Assem Mohammed in his capacity as a Medical Assessor of the Personal Injury Commission of NSW (third defendant)

Representation:

Counsel:
J Gumbert with J Isackson (plaintiff)
C Allan (first defendant)

Solicitors:
Garling & Co Lawyers (plaintiff)
Hall & Wilcox Lawyers (first defendant)
Crown Solicitor’s Office (second and third defendant)

File Number(s):

2022/369396

Publication restriction:

Nil

JUDGMENT

Introduction

1. Nicolas Mandoukas (‘the plaintiff’) was involved in a motor vehicle accident that occurred on 8 January 2019 in Belmore NSW: the vehicle he was driving collided with another vehicle, that was travelling in the opposite direction, but carelessly turned into his path causing him to “T-bone” the passenger side of the offending vehicle. The plaintiff alleges that he sustained injuries to his right knee and cervical spine in consequence of that accident, but his claims for compensation for those injuries have so far been (largely) rejected.

2. By his amended summons filed 22 February 2023, the plaintiff seeks judicial review of two decisions: the first is a decision of a medical assessor dated 14 June 2022; the second is a decision of a delegate of the President of the Personal Injury Commission dated 9 September 2022. His essential complaint is that his “claim” in respect of his cervical spine injury has not been dealt with – at all: both the medical assessor in the first instance, and the delegate upon review, failed to consider whether the cervical spine surgery, that the plaintiff underwent in July 2020, constituted a “consequential injury” – with the consequence that the cervical spine injury was found to be a “minor injury” within the meaning of the Motor Accident Injuries Act 2017 (NSW) (‘the Act’).

3. Allianz Australia Insurance Limited (‘the insurer’) is the compulsory third party insurer of the “at fault” vehicle, and the only active defendant in the proceedings. The President of the Personal Injury Commission (the second defendant) and Dr Mohammed Assem in his capacity as a Medical Assessor of the Personal Injury Commission (the third defendant) have filed submitting appearances.

Background

4. Following the motor vehicle accident on 8 January 2019, the plaintiff lodged a claim for compensation with the compulsory third party insurer of the vehicle at fault – the first defendant – alleging that he sustained injury to his right knee and cervical spine.

5. There was a dispute between the plaintiff and the insurer as to whether the injuries that the plaintiff sustained were minor injuries as defined in s 1.6 of the Act. The plaintiff subsequently filed, on 19 September 2019, a Medical Dispute Application in the Personal Injury Commission (‘the Commission’).

The medical assessment by Medical Assessor Wallace

6. On 19 November 2019, the plaintiff was assessed by Dr Raymond Wallace, a medical assessor. Following his assessment of the plaintiff, Dr Wallace issued a certificate dated 25 November 2019 under s 7.23(1) of the Act. The key findings of the medical assessor were: (a) that the plaintiff suffered a musculoligamentous strain of his cervical spine, as well as aggravation of pre-existing multilevel degenerative spondylosis caused by the motor accident, but that that injury was “a minor injury” within the terms of the Act; and (b) that there was “no objective medical evidence that he suffered any injury” to his right knee in the motor vehicle accident, and any “right knee symptoms [were] due to age related tricompartmental osteoarthritis … which is constitutional in origin” and unrelated to the motor vehicle accident. (For completeness, s 1.6 of the Act has since been amended to refer to “threshold injury” instead of “minor injury”: nothing turns upon this).

7. The effect of this assessment had the consequence that the plaintiff did not have an entitlement to damages in respect of any injuries sustained in the motor accident: s 4.4 of the Act.

The plaintiff seeks a review of the decision of Medical Assessor Wallace

8. The plaintiff sought a review of that assessment by a medical review panel. On 14 April 2020 the medical review panel upheld the decision of Medical Assessor Wallace.

9. It appears that the insurer determined to revisit the claim following an application, dated 14 April 2020, for a “Merit Review”. (The Merit Review application was not in evidence). Drawing upon the decision that the insurer made, the basis for the review appeared to include the fact that the plaintiff had undergone surgery – in the form of C5/6 foraminotomy, performed by Dr Simon McKechnie – on 1 July 2020.

10. The insurer, as part of this review, considered further medical evidence – including treating specialist reports from Dr Simon McKechnie, neurosurgeon, dated 19 August 2020 (there were a number of reports, all with this date). Following that review, the insurer advised the plaintiff, by letter dated 8 September 2020, that based upon Dr McKechnie’s report dated 19 August 2020 (which refers to an earlier motor vehicle accident that occurred on 1 December 2010, and which resulted in the plaintiff suffering significant personal injury), as well as reports on imaging that revealed a right C5/6 foraminal stenosis and a small bulge at the C5/6 level the same level, the insurer did not consider that the “surgery undertaken was as a result of the injuries sustained in the motor vehicle accident … but rather an aggravation of a pre-existing injury”. Further the insurer advised that, in connection with radicular symptoms, they did “not meet the criteria as set out in the Motor Accident Guidelines as previously confirmed”. The insurer concluded by advising the plaintiff that it considered his injuries to his “cervical spine sustained in the accident to be soft tissue and therefore you have sustained a minor injury in line with” s 1.6 of the Act.

11. The following day, on 9 September 2020, the solicitors for the plaintiff advised the insurer that they were “instructed to request a review of your decision”.

12. On 16 September 2020 the insurer advised the solicitor for the plaintiff that the insurer declined to undertake an internal review of the decision dated 8 September 2020.

The plaintiff files an Application in the Commission seeking a further medical assessment

13. On 28 October 2020 the plaintiff filed an ‘Application’ in the Commission. From the body of that application, and communications that the Commission had with the solicitor for the plaintiff, it was confirmed that the application lodged by the plaintiff was “an application for a further medical assessment as per section 7.24(2) of the Act”.

14. The plaintiff’s application contained submissions. Nevertheless, on 9 November 2020, a Commission officer requested further submissions from the parties. It is unclear whether the plaintiff filed further submissions, but the insurer, in line with the request made, provided submissions dated 27 November 2020.

15. Following the filing of that application, and the receipt of the further submissions, the Proper Officer of the Commission wrote to the parties, requesting that they provide further submissions: the plaintiff was requested to provide them by 24 December 2020, and the insurer to respond by 13 January 2021.

16. The plaintiff provided further submissions by letter dated 16 December 2020, and the insurer provided written submissions dated 25 January 2021.

17. The plaintiff’s application for a further medical assessment was refused on 8 February 2021: a Delegate of the Commission was not “satisfied that there was additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment”.

18. On or about 30 July 2021 the plaintiff lodged a second Application for Further Medical Assessment in the Commission. That application was pursuant to s 7.24(1) of the Act. In support of that application, the plaintiff filed submissions (which are undated). The insurer also provided further written submissions dated 23 August 2021.

19. In addition to the written submissions, the plaintiff relied upon a report from the plaintiff’s treating neurosurgeon, Dr Simon McKechnie, dated 8 June 2021 as “additional relevant information” (so as to engage the terms of s 7.24(2) of the Act and cll 13(1) and (2) of the Motor Accident Injuries Regulation 2017 (NSW) (‘the Regulation’)). In the written submissions that accompanied the application, the plaintiff essentially submitted that the report demonstrated that the plaintiff in fact had radicular pathology leading to right arm radicular pain resulting in surgical treatment. The submission (pars 4 and 5) relevantly was:

4. The fundamental error underpinning [the earlier medical] assessments was that they proceeded on an assumption that the [plaintiff] had not experienced radicular symptoms (radiculopathy). Indeed, the assumption underpinning those assessments was expressed emphatically in terms of their being “no evidence of radiculopathy”. This finding was based on a single clinical examination performed by Dr Wallace. The [plaintiff] was not examined by the review panel.

5. The additional information makes it patently clear that the [plaintiff] had experienced right C6 radiculopathy caused by nerve root compression ...

20. Given the arguments the plaintiff made in this Court, it is equally important to note what was not argued by the plaintiff: there is no reference to the plaintiff alleging that he sustained a “consequential injury” (a term employed by the plaintiff as the basis for multiple grounds of review), nor that the surgery itself was a “consequential injury” – or indeed anything approaching that.

21. By decision dated 22 November 2021, a Delegate of the Commission determined that the plaintiff’s application “will be referred for further medical assessment. I am satisfied there is additional relevant information such as to be capable of having a material effect on the outcome of the previous assessment”. The delegate noted that this further assessment would involve consideration of “all aspects of the previous assessment afresh and may include all injuries assessed by the original Assessor and any additional injuries listed on the application or reply” (reasons at [7]). Further, the Delegate confirmed (reasons at [8]):

… that the following injuries/treatment will be referred for further medical assessment in this matter:

(a) Whether the cervical spine injury – radiculopathy caused by the motor accident is a minor injury for the purposes of the Act.

(b) Whether the right knee injury – chondral damage and bone oedema caused by the motor accident is a minor injury for the purposes of the Act.

The further medical assessment by Medical Assessor Assem

22. On 6 June 2022 the plaintiff was assessed by a Medical Assessor Dr Mohammed Assem.

23. By certificate dated 14 June 2022, Medical Assessor Assem assessed the plaintiff as having sustained a soft tissue injury to his cervical spine, an injury that was found to be caused by the motor accident (reasons at [21]):

Cervical spine / soft tissue injury, aggravation of pre-existing degenerative pathology causing non-verifiable radicular symptoms in his right arm.

24. Further, in relation to the injury to the cervical spine, Medical Assessor Assem considered that the plaintiff’s injury fell within the definition of ‘minor injury’ in s 1.6 of the Act because there was no “objective evidence of a neurological deficits that would satisfy the definition of radiculopathy” (which was expressed to be an application of schedule 1[2], cl 4 of the Regulation) and “also no evidence of an injury to nerves or a complete partial rupture of tendons, ligaments, menisci or cartilage” (which was an application of s 1.6(2) of the Act) (reasons at [23]).

25. In relation to the plaintiff’s right knee, Medical Assessor Assem considered that the plaintiff suffered a soft tissue injury to his right knee, but that was not caused by the motor accident (reasons at [22]). (For completeness, it should be noted that the plaintiff does not dispute Medical Assessor Assem’s finding in relation to his right knee: plaintiff’s submissions at [15]).

The application for review of Dr Assem’s medical assessment

26. Being dissatisfied with the decision of Medical Assessor Assem, on 12 July 2022 the plaintiff filed an Application for Review of the Decision of Medical Assessor Assem.

27. That application, which was for a referral of the medical assessment to a review panel for review, was made pursuant to s 7.26(1) of the Act. An application for the referral of a medical assessment to a review panel can only be made “on the grounds that the assessment was incorrect in a material respect”: s 7.26(2) of the Act.

28. In that application, the plaintiff filed written submissions that, essentially, submitted that Medical Assessor Assem had fallen into legal error in determining whether the plaintiff’s injury to his cervical spine was ‘minor’ because he had considered only whether at the time of assessment the plaintiff had radiculopathy rather than determining whether at any time – since the motor accident – the plaintiff had radiculopathy.

29. Again, given the arguments raised by the plaintiff in this Court, it is important to note what the plaintiff argued justified the referral to a review panel. The key paragraphs of the submissions (they were not numbered) are as follows:

The issue in the current proceedings is whether the [plaintiff] suffered from radiculopathy as established by Clause 5.8 of the Guidelines, not whether the [plaintiff] had radiculopathy at the time of the assessment of the medical assessor.

…

The [plaintiff] satisfied the definition of radiculopathy after the MVA as recorded by Dr McKechnie in his serial reports.

…

It is settled law therefore that if radiculopathy has been found by any medical practitioner at some stage since the injury, then the [plaintiff] has a non-minor injury.

Dr Assem failed to consider if the [plaintiff] has had radiculopathy at any time since the MVA.

The review panel would accept that the [plaintiff] has had radiculopathy as found by Dr McKechnie and for which he underwent surgery which was successful in reducing radiculopathy.

…

The panel should find that the [plaintiff] has a non-minor injury due to the presence of radiculopathy since the motor vehicle accident. (emphasis in original)

30. The insurer filed written submissions, dated 8 August 2022, opposing the application. The plaintiff also filed further submissions dated 10 August 2022. In those further submissions, the plaintiff repeated his complaints about the medical assessor failing to find the presence of radiculopathy; submitted that the nature of the surgery involved “removing a small portion of bone” (emphasis in original) – which was argued to amount to something more than merely a soft tissue injury; and also submitted that the laceration and scarring was also a non-minor injury: the submission was that “skin is an organ of the body and therefore a laceration and/or scarring to such structure is a non-minor injury”.

31. Two matters should presently be noted in connection with these further submissions. The first is that it is clear that the submission made by the plaintiff about the nature of the surgery – specifically what that involved – was the first occasion that a submission of this kind had been made. The second is that the plaintiff’s submission that there was error in failing to find a “non-minor injury” in connection with “laceration and scarring” is not advanced as any ground of review in this Court.

A delegate declines to refer the medical assessment for review by a Review Panel

32. On 9 September 2022 a Delegate of the President of the Personal Injury Commission (‘the delegate’) declined the application for review of the medical assessment of Medical Assessor Assem on the basis that he “was not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect” and issued a certificate and reasons to that effect pursuant to s 7.26 of the Act.

33. The plaintiff subsequently commenced proceedings in this Court on 7 December 2022 pursuant to s 69 of the Supreme Court Act 1970 (NSW). By that summons, the plaintiff challenges the decision of Medical Assessor Assem and the delegate.

Extension of time

34. The plaintiff seeks an extension of time to commence proceedings, pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’), in relation to the decision of Medical Assessor Assem. The decision of the medical assessor was made on 14 June 2022, and the summons filed in this Court on 7 December 2022.

35. Proceedings for judicial review must be commenced within 3 months of the date of the decision: r 59.10(1) of the UCPR. The Court, however, may (at any time) extend the time for commencing proceedings (r 59.10(2) of the UCPR), and in considering whether to do so, regard should be had to the circumstances of the case as well as the factors in r 59.10(3)(a)-(d) of the UCPR.

36. The plaintiff submits that such an extension should be granted on the basis that the need has only arisen because the plaintiff sought to exhaust all other review pathways before invoking the supervisory jurisdiction of this Court (plaintiff’s submissions at [38]-[39]). The insurer neither opposed nor consented to the extension of time sought by the plaintiff (insurer's submissions at [3]).

37. In my view, given the explanation, the position of the insurer, the absence of prejudice and the confined nature of the extension required, that extension of time should be granted.

38. I will deal next with the background facts, the legislative framework and principles and thereafter deal with the plaintiff’s grounds of review.

Legislative framework

39. In what follows, I set out the relevant statutory provisions that deal with medical assessments, those that define and relate to what constitutes a ‘minor injury’, as well as the Motor Accident Guidelines that apply to the assessment conducted by a medical assessor.

The statutory framework: medical disputes and assessment

40. Part 7 of the Act concerns ‘Dispute resolution’.

41. For the purposes of that Part, a medical assessment matter is defined to mean those matters declared by schedule 2 to be a “medical assessment matter”: s 7.1. Relevantly here, “whether the injury caused by the motor accident is a minor injury for the purposes of the Act” is declared to be a medical assessment matter: schedule 2(e) of the Act.

42. Here, there was a “medical dispute” – which is defined to mean a “dispute between a claimant and an insurer about a medical assessment matter”: s 7.17 of the Act.

43. Part 7, Division 7.5 concerns medical assessments of medical assessment matters, and medical disputes.

44. Initially, an application was made by the plaintiff to the President of the Commission to have the medical dispute assessed by medical assessor under Part 6, Division 7.5 (Medical assessment) of the Act: s 7.20(1) of the Act. That medical dispute was referred for an assessment by a medical assessor – initially Medical Assessor Wallace: s 7.20(2) of the Act.

45. A medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment: s 7.23(1). The certificate is “to set out the reasons for any finding by the medical assessor … as to any matter certified in the certificate in respect of which the certificate is conclusive evidence”: s 7.23(7).

46. A medical dispute referred for assessment may be referred again for assessment, on an application by a claimant or the insurer, by application made to the President of the Commission – but only on “the grounds of deterioration of the injury or additional relevant information about the injury”: ss 7.24(2) and (4) and cl 13(1) of the Regulation. The President of the Commission is to arrange for that further assessment but only if “satisfied that the application meets the requirements for referral” under s 7.24(2): s 7.24(5).

47. As earlier noted, a delegate of the Commission determined, on 22 November 2021, that there was additional relevant information to warrant a further medical assessment. That medical assessment was undertaken by Medical Assessor Assem – who issued a certificate dated 14 June 2022. This decision is the subject of challenge by the plaintiff (grounds 3(a)-(d) of the amended summons).

48. A claimant or an insurer may apply to the President of the Commission “to refer a medical assessment … by a single medical assessor to a review panel for review”: s 7.26(1). An application for referral to a review panel “may only be made on the grounds that the assessment was incorrect in a material respect”: s 7.26(2). That occurred here: the plaintiff, being dissatisfied with the medical assessment undertaken by Medical Assessor Assem, filed an application for review of the decision on 12 July 2022. That application was refused by the delegate by decision dated 9 September 2022. This decision is also the subject of challenge by the plaintiff (grounds 6(a)-(d) of the amended summons).

The statutory framework: the definition of ‘minor injury’

49. The parties were in agreement that the relevant version of the Act was the historical version for the period 10 June to 15 June 2022.

50. Section 1.6 of the Act relevantly defines a minor injury to be:

1.6   Meaning of “minor injury”

(1)  For the purposes of this Act, a minor injury is any one or more of the following—

(a)  a soft tissue injury,

(b)  a minor psychological or psychiatric injury.

(2)  A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

…

(4)  The regulations may—

(a)  exclude a specified injury from being a soft tissue injury or from being a minor psychological or psychiatric injury for the purposes of this Act, or

(b)  include a specified injury as a soft tissue injury or as a minor psychological or psychiatric injury for the purposes of this Act.

(5)  The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a minor injury for the purposes of this Act (including provision for or with respect to the resolution of disputes about the matter by the Dispute Resolution Service).

51. Clause 4(1) of the Regulation provides:

An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.

52. It was accepted by the parties that cl 4(1) was a regulation to “include a specified injury as a soft tissue injury” for the purposes of s 1.6(4)(b) of the Act.

The Motor Accident Guidelines

53. As is apparent from the terms of s 1.6(5) of the Act, the Motor Accident Guidelines may make provision “for or with respect to the assessment of whether an injury is a minor injury for the purposes of this Act”.

54. The parties drew attention to a number of clauses (referred to in [57]-[59], below) contained in a version (version 8.2) of the Motor Accident Guidelines effective from 8 April 2022 (‘the Guidelines’). The medical assessor, however, used the “Motor Accident Guidelines January 2019”. The plaintiff made no point about the use of those earlier guidelines, and nothing was suggested to turn upon this.

55. The submissions of the parties did not deal with the status of the Guidelines, although the plaintiff submitted that the medical assessor was required to comply with them in the following respects. (To be clear, the plaintiff did not argue that there was non-compliance with any particular clauses within the Guidelines).

56. Part 5 of the Guidelines deals with ‘Minor Injury’. That Part of the Guidelines is made “with respect to … assessing whether an injury caused by the motor accident is a minor injury for the purposes of the Act”: cl 5.1(a) of the Guidelines.

57. Clauses 5.3-5.6 of the Guidelines provide general provisions for the assessment, relevantly here, of soft tissue injuries. Those clauses provide:

General provisions for assessment

5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident.

5.4 Diagnostic imaging is not considered necessary to assess minor injury.

5.5 A diagnosis for the purpose of a minor injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person’s current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

58. In relation to the assessment of whether an injury is a ‘minor injury’ within the meaning of the Act, relevantly, cll 5.7-5.9 provide:

Soft tissue assessment – injury to a spinal nerve root

5.7 In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.

5.8 Radiculopathy means the impairment caused by the dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.

(a) loss or asymmetry of reflexes …

(b) positive sciatic nerve root tension signs …

(c) muscle atrophy and/or decreased limb circumference …

(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution

(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.

5.9 Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a minor injury.

59. Further, the plaintiff also drew attention to cl 6.113 of the Guidelines which provides:

The assessment of spinal impairment is made at the time the injured person is examined. If surgery has been performed, then the effect of the surgery as well as the structural inclusions, must be taken into consideration when assessing impairment. Refer also to clause 6.20 in these Guidelines.

60. Two matters should here be noted. First, cl 6.113 deals with impairment and not with the anterior enquiry – viz., whether the injury is a “minor injury”. In my view, this clause is not material to the determination of the plaintiff’s grounds of review and aside from referring to it, the plaintiff’s submissions did not seek to develop that it was. Secondly, the plaintiff eschews any complaint connected with radiculopathy and its suggested presence – historical or otherwise. It will be necessary to return to this express confinement of the plaintiff’s arguments in this Court, later in these reasons.

Grounds of review: the decision of the medical assessor

Introduction

61. The plaintiff raises four grounds of review in relation to the decision of the medical assessor.

62. Those errors, shortly stated, are said to be: first, that the medical assessor failed to consider whether the plaintiff’s consequential injury – being the foraminotomy – was “minor” or not, and in omitting to do so constructively failed to exercise jurisdiction (ground 3(a)); secondly, in failing to consider whether the surgery was a minor injury or not, the medical assessor “failed to apply the lawful test of causation regarding consequential injuries” (ground 3(b)); thirdly, the medical assessor failed to exercise his jurisdiction and did not afford the plaintiff procedural fairness in failing to “respond to” the plaintiff’s submission that the accident created a need for the surgery and that the surgery (the foraminotomy) rendered the plaintiff’s injuries non-minor (ground 3(c)); and, fourthly, that the medical assessor failed to provide legally sufficient reasoning for why the surgery did not cause the plaintiff’s injuries to be non-minor (ground 3(d)).

63. Collectively – and necessarily, generally – the four grounds all concern the manner in which the medical assessor dealt with the surgery that was performed by Dr McKechnie on 1 July 2020. In those circumstances, it is appropriate to give specific consideration to the way in which the medical assessor dealt with the plaintiff’s claim, as well as consideration of the submissions advanced by the plaintiff as part of that further assessment. It will be recalled that the assessment concerned the plaintiff’s cervical spine, as well as his right knee. The plaintiff however accepts the findings made by the medical assessor in connection with his right knee (see [25], above), and that injury need not be considered further.

64. Before considering the reasons of the medical assessor so far as they relate to the plaintiff’s cervical spine injury, it is appropriate to note that, as the insurer argued, there is a significant issue about whether the grounds of review advanced by the plaintiff represent an entirely new, and different, case and that, in and of itself, justifies this Court refusing the plaintiff the relief he seeks. As I explain later, the broad thrust of the insurer’s submission must be accepted.

65. It is also appropriate to make the following observations about all grounds of review, in order to give what follows proper context.

66. The grounds of review are premised on three matters. The first premise is that the plaintiff’s “consequential injury” arguments were raised before the medical assessor, such that the failure to “deal with it”, as the plaintiff argues, and failure to provide legally sufficient reasons in connection with that case, vitiated the decision of the medical assessor. In my view there is no basis to accept that premise: the arguments that the plaintiff seeks to advance in this Court as justifying a finding that there has been a constructive failure to exercise jurisdiction and a denial of procedural fairness – by the medical assessor failing to deal with a case or argument – were simply never made to the medical assessor, as the insurer submitted. The second premise is that there was evidence before the medical assessor to make that case – but the plaintiff did not identify any such evidence, and instead relying relied upon what was said by a Personal Injury Commission Review Panel in an unrelated matter. The third premise is that the plaintiff’s “consequential injury” arguments themselves are sound. In my view they are not. It is useful, at this point, to briefly state why I consider that to be so.

67. The statutory provisions require the injured party to demonstrate that they have suffered an accident-related injury: ordinarily, when they do, there is an entitlement to statutory benefits or, in a given case, damages. An essential element in any claim is the requirement to prove causation between the accident and the injury. Where the injury operates so as to produce a condition or complaint elsewhere in the person’s body, claims of that kind are sometimes – not invariably, and then only as a “shorthand” – described as ones for “consequential loss”. It is important to emphasise, however, contrary to what the plaintiff argued, that they are not a separate class of claim or injury; rather they illustrate that, if causation is shown, the injured party is entitled to recover for that other condition.

68. I will next cover off the decision of the medical assessor, including identifying the issues raised by the plaintiff as part of that medical assessment.

The decision of the medical assessor

69. After noting that there was a minor injury dispute to be assessed – relevantly and specifically in relation to the cervical spine injury, whether “radiculopathy caused by the motor accident is a minor injury for the purposes of the Act” (reasons at [2](a)) – the medical assessor commenced by recording the submissions made by the plaintiff.

70. In this respect the medical assessor (again, relevantly) noted: (a) the ultimate submission that the injury to the cervical spine was a “non-minor” injury for the purpose of the Act; (b) that the plaintiff relied upon a report from his treating neurosurgeon, Dr Simon McKechnie dated 8 June 2021, which was submitted to “a fundamental error” – being, that the plaintiff “had not experienced radicular symptoms (radiculopathy)”: the report was said to demonstrate that the plaintiff “had experienced right C6 radiculopathy caused by nerve compression by the C5/6 disc leading to right arm radicular pain and this is the reason why the applicant underwent surgical decompression of the nerve root”.

71. Pausing briefly to signpost. Given the grounds of review argued, it is appropriate to record that, in my view, by this summary, the medical assessor correctly and accurately recorded the submissions put by the plaintiff. To be clear, the plaintiff was endeavouring to mount the case that, radiculopathy being present, the injury was not a minor one: cl 4.1 of the Regulation; cll 5.8 and 5.9 of the Guidelines. It will be necessary to return to the way the plaintiff argued the case before the medical assessor later, when considering grounds 3(a) and (c) of the amended summons.

72. In relation to these submissions, the medical assessor noted that the insurer disputed that the plaintiff “developed cervical radiculopathy as a result of the subject accident”, a conclusion that was argued to follow because the plaintiff’s “clinical signs and symptoms” did not “meet the requisite criteria for radiculopathy under clause 5.9 of the Guidelines”.

73. The medical assessor, in that part of the reasons headed ‘Diagnosis, causation and reasons’, made a number of key findings and conclusions – being:

1. First, the “contemporaneous medical evidence supports an injury to the cervical spine as a result of the subject accident aggravating pre-existing degenerative pathology and rendering it symptomatic”.

2. Secondly, the plaintiff “was experiencing non-verifiable radicular symptoms in his right arm but there were no other abnormal physical neurological signs. He therefore did not satisfy the objective criteria for radiculopathy set out in Paragraph 5.9, p 86-87 of the Motor Accident Guidelines January 2019” (underlining in original).

3. Thirdly, “Dr McKechnie proceeded to perform a C5/6 foraminotomy on 1 July 2020 for ‘radicular symptoms’. It should be noted that radicular symptoms are used synonymously with non-verifiable radicular complaints and does not indicate the presence of neurological signs of radiculopathy’ (underlining in original).

4. Fourthly, when assessed, the plaintiff did not have any “focal neurological deficits and neural tension signs were negative. He therefore did not satisfy the diagnostic criteria for radiculopathy nor was there any pathology that would indicate the presence of a non-minor injury”.

74. The medical assessor, in his ‘Summary of injuries referred by the parties’ concluded that the following injury was caused by the motor accident: “Cervical spine / soft tissue injury, aggravation of pre-existing degenerative pathology causing non-verifiable radicular symptoms in his right arm” (reasons at [21]). This is a finding (which confirmed the medical assessor’s earlier finding, referred to in [73(2)], above) that the plaintiff had non-verifiable radicular symptoms, and not radiculopathy.

75. In relation to that finding, the following matters should be noted. First, this finding was dispositive of the case that the plaintiff made before the medical assessor in connection with why the cervical spine injury was not a minor injury. Secondly, it will be recalled that the plaintiff had, as a basis for seeking a review by a review panel under s 7.26 of the Act, argued that the medical assessor was in error in failing to find the presence of radiculopathy – however (as I earlier noted) that argument is not advanced in this Court.

76. The medical assessor then addressed whether the plaintiff’s cervical spine injury was a minor injury for the purposes of s 1.6(2) of the Act and cl 4(1) of the Regulation: the medical assessor concluded that that injury was a minor injury, and his reasons for that conclusion were expressed as follows:

[The plaintiff] sustained a soft tissue injury to his cervical spine in the subject motor vehicle accident. He did not have any objective evidence of a neurological deficits (sic) that would satisfy the definition of radiculopathy. There was also no evidence of an injury to nerves or a complete partial rupture of tendons, ligaments, menisci or cartilage. He therefore has a non-minor injury according to the definition in section 1.6 of the Motor Accident Injuries Act 2017.

77. With that introduction and background, I will now deal with the plaintiff’s grounds of review in more detail.

Grounds 3(a) and 3(b): the alleged ‘consequential injury’

78. These grounds of review were argued together.

79. As earlier noted (see [61], above), the essential complaint made by the plaintiff is that, having found that “the foraminotomy surgery was caused by the accident”, it followed that the surgery was “in the nature of a consequential injury” (plaintiff’s submissions at [53]-[54]) – yet, so the plaintiff argued, the assessor failed to assess (or give any consideration to) whether that consequential injury was minor, or not (plaintiff’s submissions at [61]; ground 3(a)). In this last respect, the plaintiff also submitted that “the surgery was a relevant factor to the determination of the minor injury dispute” (plaintiff’s submissions in reply at [4]). The upshot of this is the second ground (ground 3(b)): this alleged ‘omission’ was argued to amount to a constructive failure to exercise jurisdiction or a failure “to apply the lawful test of causation regarding consequential injuries” (plaintiff’s submissions at [64]-[65]).

78. There are, thus, two parts to ground 3(a): the ground of review requires consideration of what was argued by the plaintiff to amount to a “consequential injury” and, separately, assuming there was an injury of that kind, whether the medical assessor was required to “consider” that injury, but failed to do so.

79. It is useful to start with the statutory provisions, and some matters of first principle.

The statutory provisions relating to “injury”

82. As is evident from the long title to the Act, the Act provides a scheme for the “provision of benefits and support relating to … injury to persons as a consequence of motor accidents”. Being a statutory scheme, it is necessary to identify the relevant statutory provisions that entitle the plaintiff to compensation for his injuries.

83. If injury to a person “results from a motor accident”, then statutory benefits are payable in respect of that injury as provided by Part 3 of the Act: s 3.1(1). The expression ‘motor accident’ is relevantly defined to mean “an incident or accident involving the use or operation of a motor vehicle that causes … injury to a person …”: s 1.4(1). In certain circumstances, but essentially when there is a finding that the person’s injuries are not minor injuries, then that person has an entitlement, in addition to statutory benefits, to claim damages for those injuries: ss 4.4 and 4.11 of the Act, and Part 4 of the Act.

84. Thus, the trigger for the entitlement to statutory benefits (and, where appropriate, damages) is identification of an injury to the plaintiff that results from (that is, is caused by) a motor accident. There was no dispute between the parties that common law concepts of causation are involved.

85. Relevantly here, the term ‘injury’ “means personal or bodily injury …”: s 1.4(1) of the Act. The Act makes a distinction between injuries that are a ‘minor injury’, and those that are not (the relevant statutory provisions have earlier been set out: see [49], above).

86. Upon demonstration that the person has suffered an injury that results from a motor accident, then a range of statutory benefits (and, possibly, damages) are available. Those benefits include expenses for treatment and care – where those expenses are reasonable and necessary, and relate to the injury resulting from the motor accident: ss 3.24 (1)(a) and (2) of the Act. They also include an entitlement to damages for non-economic loss where the assessed impairment resulting from injury exceeds a permanent impairment of 10%: s 4.11 of the Act.

The “consequential injury” submissions

87. As I have earlier noted, front and centre of these grounds of review is the plaintiff’s contention that the surgery itself was a consequential injury.

88. What, then, was argued by the plaintiff to be a consequential injury and what followed from that?

89. The plaintiff advanced a number of “consequential injury” arguments, largely in the abstract.

90. First, the plaintiff submitted that “there are two kinds of consequential injury”, illustrated by the decisions in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’) and Hunter v Insurance Australia Ltd trading as NRMA Insurance [2021] NSWSC 623 (‘Hunter’). I do not accept that submission.

91. In my respectful view, each decision merely demonstrates a conventional and orthodox application of the principles of causation: they do not establish a new, and further, species of “injury”, nor did they purport to. In McGiffen the case involved the claimant suffering injury to his left leg and, subsequently, developing a lower back condition as a consequence of the effects of his leg injury – said to be a product of his “abnormal ambulation”– which, it was held, posed a factual question about whether the back condition “arose as a consequence of the effects of [the claimant’s] leg injuries”: McGiffen at [58], [64] and [66]. And, in Hunter, the case involved the claimant suffering injury to his left foot in a motor accident and, due to a complication in the surgical procedure undertaken, the claimant developed a psychiatric condition – which was found to be as a result of the motor accident, essentially because the plaintiff reasonably underwent the surgery which was a foreseeable consequence of the injury sustained in the accident: Hunter at [16]-[19].

92. To sum up: the decisions referred to in [89]-[90], above, illustrate the difference between the injury suffered in a motor vehicle accident, and a condition that has resulted from that injury. The decision in Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 at [56] and [94] is to the same effect. They do not go further, contrary to what the plaintiff submitted.

93. Secondly, the plaintiff argued that because the “surgery was caused by the accident”, it followed that the surgery was “in the nature of a consequential injury”. I do not accept that submission. Ordinarily, an accident-related injury creates a need for treatment, but that treatment is not an “injury”, nor a “consequential injury”. Generally speaking, when a surgical procedure is performed to treat an injury sustained in an accident, the total condition resulting from the injury and the surgery is to be attributed to the original injury, subject to the operation being reasonably undertaken by the injured person: Lindeman Ltd v Colvin (1946) 74 CLR 313, 321; [1946] HCA 35; Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29, 44-46. The decision in Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, 529; [1985] HCA 37 – relied upon by the plaintiff – is to the same effect. However, these authorities do not support the proposition that surgery following an injury is, in and of itself, a separate injury nor a consequential one, and the plaintiff did not develop how or why that result followed here. Further, and separate from these authorities, the plaintiff did not explain precisely how or why this conclusion followed, nor how and why this analysis fitted within the statutory scheme earlier described.

94. Notwithstanding the first and second “consequential injury” arguments advanced, during the course of submissions, the plaintiff accepted that the term “consequential injury might have caused confusion”. As the insurer pointed out, during submissions, to the extent that confusion may have arisen, that was a consequence of the plaintiff raising “consequential injury” by the grounds contained within the summons. In my respectful view, given the entitlement to statutory benefits (and damages) turns upon satisfaction of the relevant statutory criteria (viz., whether the plaintiff’s injury is a minor injury within s 1.6 of the Act), it is not altogether helpful to analyse the matter in this way, and the submissions tended to run together a number of different, and legally distinct, concepts.

95. The plaintiff went on to submit, somewhat inconsistently with these earlier arguments, that “[w]hat happened here is not that kind of injury. It is consequential, but it is not a new injury. It is an extension of the same injury” and, later, it was said that “it is the same injury. It is just that it has progressed and it has changed as time has gone on”.

96. In my respectful view, the plaintiff’s “consequential injury” arguments have tended to distract attention from the central question – viz., whether the plaintiff’s cervical spine (or neck) injury was a minor injury, or not having regard to s 1.6 of the Act.

97. The plaintiff next argued that the mere fact that surgery had been performed “needed to be considered and assessed and that is not what was considered and assessed here”. This submission is the second part of ground 3(a) (and similar to ground 3(c) and whether – and if so in what way – it differed was not altogether clear).

98. The submission is exceedingly general in its terms. It requires some discussion. When pressed to identify – precisely – the error committed by the medical assessor, and what was encompassed by the submission “considered and assessed”, the plaintiff made three partly overlapping submissions – as follows.

1. First, the plaintiff submitted that “the assessor did not finish the job, that’s all … He just didn’t finish the job here, having reached the stage where he found, as a matter of fact, that the injury was causally related to the cervical spine injury, it is then incumbent upon him to assess whatever additional impairment, or injury, had been caused by that surgery, because it is to the same region”.

2. Secondly, it was submitted “that because of the fact of the surgery which was performed on the injury, and having regard to [Mahony v J Kruschich (Demolitions) Pty Ltd], is sheeted home to the original tortfeasor”.

3. Thirdly, that the assessor was aware of the surgery “but he did not take it into account in assessing impairment, because … [in] his reasons he does not at any point consider whether or not the surgery would render the injury minor or non-minor. It is just absent”. In this respect, the complaint of the plaintiff was directed to the medical assessor never stating – “having regard to the foraminotomy surgery, the current status of the injury is; and the foraminotomy surgery did or did not change the status of the minor or non-minor injury. That is what I am saying is missing, because it was, at the time of his assessment, part of the dispute”.

99. I do not accept these submissions. That is for the following reasons.

100. In relation to the submission that the medical assessor was required to assess “permanent impairment”, the basis for this submission was neither identified, nor clear: the submission in my respectful view, tended to blur a number of legally distinct concepts: injury, causation and impairment. Further, in my view, and contrary to what the plaintiff argued, the task being performed by the medical assessor was not to deal with impairment resulting from injury, but a determination of whether or not the injury to the plaintiff’s cervical spine was a “minor injury”. That was the medical dispute referred to the medical assessor for assessment under s 7.20(2) of the Act: schedule 2(e). To be clear, there was no medical dispute before the medical assessor relating to the degree of permanent impairment: as to which, see schedule 2(a). Nor is it correct, in my view, that the medical assessor was required to assess any additional impairment caused by the surgery, and the plaintiff did not identify the basis for any such requirement given the medical dispute that was before the medical assessor. Again, the determination for the medical assessor was whether or not the injury to the plaintiff’s cervical spine was a “minor injury”: the medical assessor was not, as part of that assessment, assessing the degree of any permanent impairment resulting from the cervical spine injury.

101. In relation to the submission that picked up Mahony v J Kruschich (Demolitions) Pty Ltd, this has been previously dealt with (see [92], above), but beyond that the relevance of that decision was not developed further.

102. To sum up: I do not accept any of the plaintiff’s “consequential injury” submissions, for the reasons I have given. Ultimately, in my respectful view, much of what was argued in connection with it was of doubtful materiality.

103. In relation to the plaintiff’s overarching submission – the plaintiff argues that there should have been a conclusion that the plaintiff’s cervical spine injury was not a “minor injury” – whether that is so ultimately turns upon satisfaction of s 1.6 of the Act. As ultimately put by the plaintiff, the submission was that the medical assessor was required to (but did not) consider, and assess, “the fact of surgery”: this (alleged) omission was argued to invalidate the decision of the medical assessor. It is to this last broad submission that I will next turn.

The (alleged) failure to consider the surgery performed in July 2020

104. It is necessary to start with the statutory scheme. This has been previously set out but, given the specific submission made, the following key provisions should be noted:

1. A minor injury (relevantly) is a soft tissue injury: s 1.6(1) of the Act.

2. Section 1.6(2) of the Act provides that a soft tissue injury:

… is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

3. Section 1.6(4)(a) authorises the regulations to “include a specified injury as a soft tissue injury …”, and cl 4(1) of the Regulation provides:

An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act.

105. In relation to an injury to nerves – specifically injury to a spinal nerve root – the structure of these provisions is such that although within the exception to the definition in s 1.6(2) (viz., “but not an injury to nerves …”), the effect of the regulation is such that unless the injury to the spinal nerve root manifests in radiculopathy, that injury “is included as a soft tissue injury” for the purposes of the Act. No issue arises in this case about that approach given the plaintiff does not raise any issue in connection with radiculopathy.

106. It is necessary also to identify the relevant findings of the medical assessor as to why the plaintiff’s injury was assessed as a soft tissue injury and, therefore, a minor injury within s 1.6 of the Act. They were:

1. When the medical assessor assessed the plaintiff, he:

… did not have any focal neurological deficits and neural tension signs were negative. He therefore did not satisfy the diagnostic criteria for radiculopathy nor was there any pathology that would indicate the presence of a non-minor injury.

2. The medical assessor also found that the plaintiff:

… did not have any objective evidence of a neurological deficits (sic) that would satisfy the definition of radiculopathy. There was also no evidence of an injury to nerves or a complete partial rupture of tendons, ligaments, menisci or cartilage. He therefore has a non-minor injury according to the definition in section 1.6 of the Motor Accident Injuries Act 2017.

107. I will return now to the plaintiff’s submission.

108. It is undeniably true that the medical assessor did not undertake any analysis of whether there was a “consequential injury”, nor undertake any analysis of whether the surgery could be considered a “consequential injury”. There was, however, a simple, and ready, explanation for this: the plaintiff never advanced a submission, or a case, to that effect – nor anything remotely approaching it. The sole case that the plaintiff advanced to secure a finding that the plaintiff’s cervical spine injury was not a “minor injury” was his argument about the presence of radiculopathy. Notwithstanding, the plaintiff seeks judicial review on the basis that the medical assessor constructively failed to exercise jurisdiction – it was argued that the plaintiff “had made a substantial and clearly articulated argument”, such that the failure to deal with that argument amounted to jurisdictional error relying upon Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 (‘Dranichnikov’).

109. The plaintiff’s submission inevitably involves something more than the bare contention “the fact of surgery”: it is plain from the medical assessor’s reasons that he did consider the fact of surgery. The reasons record as much. It is the “something more” that is the root of the plaintiff’s argument. As to this, the plaintiff’s argument was twofold.

110. The first argument for the plaintiff appears to be that the surgery necessarily involved a further, and non-minor, injury: the argument, so far as I understood it, appeared to be that surgery meant that the injury was transformed into a “non-minor-injury” or capable to being held to be so. I do not accept this submission, and how that argument fits within s 1.6(2) was not developed. Whether, in a given case, that could be so would, at least initially, be a question of fact. There is not, as seems to be suggested, a presumption of sorts that a minor injury becomes a non-minor injury merely because there is some form of surgery.

111. The second argument appeared to be that the surgery itself was an injury to bone. Put another way, this submission was that the surgical procedure involved the removal of bone – with the consequence that there was an injury that was not a minor injury. The plaintiff submitted that the medical assessor constructively failed to exercise jurisdiction, and denied the plaintiff procedural fairness, by not dealing with that “case”. I do not accept this argument.

112. It should be observed at once that this was not an argument that was advanced before the medical assessor (nor, to be clear, was there anything resembling it). Further, there are, as it happens, no findings about what the surgery involves (unsurprisingly, given the argument was not made below), nor was there any evidence about what the surgery involves. In this last respect, when invited to identify that evidence, the plaintiff: (a) only mentioned an operation report from Dr McKechnie (without going to it – it is a hand written report that described the operation performed, and is referred to below); and (b) otherwise relied upon what was said about similar surgery, in a statement of reasons given by a Personal Injury Commission Review Panel in an unrelated matter. It is plainly not appropriate to have regard to what that Review Panel found.

113. In relation to the operation report from Dr McKechnie, that provided a general description of the procedure performed, but said nothing about the specifics of what that involved, and the plaintiff did not submit to the contrary.

114. Further, as I next explain, given the plaintiff never advanced any of the above submissions – or anything approaching them – to the medical assessor, it is not open to now recast the case particularly where the ground of review relates to an allegation that the medical assessor failed to consider such a matter.

The arguments before the medical assessor

115. The insurer submitted that the plaintiff never advanced the case – that the surgery comprises a consequential injury, rather than treatment for an injury – before the medical assessor (insurer’s submissions at [41]), and that was disentitling (insurer’s submissions at [48]-[49]).

116. The plaintiff advanced two arguments by way of response: first, that, although perhaps not articulated in precisely the terms now made, it was always argued before the medical assessor that the surgery performed by Dr McKechnie “was a relevant factor to the determination of the minor injury dispute” (plaintiff’s reply submissions at [4]); and, secondly, in any event, the medical assessor was required, as a matter of statutory directive, to consider and assess the entire medical dispute. I do not accept either submission.

117. In my respectful view it is not open to suggest that the case that the plaintiff now advances was ever put below, and it is not otherwise merely because the plaintiff submits that surgery was “relevant”. There is of course little doubt that surgery was “relevant”, but the generality of that submission does not, in my respectful view, add much and it certainly does not transform a case that was never put, into one that was: although in a very general sense the plaintiff raised the fact that surgery had been performed, and that was relevant to the medical dispute, those submissions were extremely confined – extending to no more than the fact that surgery had been performed to deal with what the plaintiff argued was the presence of radiculopathy. Beyond that no submissions were advanced of the kind now raised in this Court – whether by way of “consequential injury” or anything resembling it – were made to the medical assessor. In my view the insurer’s submission must be accepted.

115. The position is not otherwise because the medical assessor was required to “assess the medical dispute between the parties”. It is not, in my view, the function of the medical assessor to somehow divine a case, particularly of the kind that is covered by this ground, and it is certainly not for this Court – adopting the words of Bromwich J in COE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 669 at [9] – to “ferret around and construct a claim” where none has been made. On no view could it reasonably be suggested that this was a case that clearly arose on the material before the medical assessor. In this last respect it should be noted that not only did the plaintiff not identify any evidence to make that case, the plaintiff was legally represented through the entire medical assessment process, and at no point was this submission – or anything approaching it – raised before the medical assessor. Notwithstanding, the plaintiff submits that this formed part of the medical dispute for the medical assessor to determine, and that his failure to do so amounted to jurisdictional error. I am unable to accept that submission and, further, I am unable to accept that the wide-ranging arguments advanced in this Court somehow arose on the material before the medical assessor requiring their consideration. (I deal with this argument further because of its potential overlap with ground 3(c): see [124]ff, below).

116. In my view the plaintiff has not demonstrated any error of the kind covered by grounds 3(a) and (b).

The (alleged) failure to apply lawful test of causation

120. As I have earlier noted, the plaintiff argued that the medical assessor failed “to apply the lawful test of causation regarding consequential injuries” (plaintiff’s submissions at [65]; ground 3(b)). I do not accept the submission, nor do I accept that any error has been demonstrated.

121. As to this ground, it is premised upon the notion of “consequential injury” which I have earlier dealt with. It is also premised on the plaintiff having made a case before the medical assessor that I have found the plaintiff simply did not make. And, finally, it is also premised upon there being evidence to demonstrate what the plaintiff argued was that consequential injury, yet the plaintiff was unable to identify any such evidence.

122. The plaintiff’s written submissions were confined to the submission as I have recorded in [119], above. They were not developed during oral submissions.

123. In my view there is no error in the approach of the medical assessor in connection with “causation”. I reject this ground.

Ground 3(c): the ‘failure’ to deal with the plaintiff’s case

124. The third error was argued to be that the medical assessor failed to “respond” to a “substantial and clearly articulated argument” – namely, that the “foraminotomy resulted in the plaintiff’s injuries being non-minor” (plaintiff’s submissions at [67]-[68]).

125. The plaintiff submitted that the medical assessor did not deal – either at all or in substance – with the plaintiff’s case: namely, whether the surgery caused the injury to be non-minor (plaintiff’s submissions at [71]). This was submitted to be particularly so given the medical assessor had found that the surgery was caused by the accident (plaintiff’s submissions at [72]). I do not accept these submissions.

126. As I have earlier noted, the plaintiff’s argument appears to be no more than a repeat of the error that is covered by ground 3(a) – or to very significantly overlap with it. To the analysis provided above in relation to ground that (and the arguments made in connection with it), I add the following.

127. A constructive failure to exercise jurisdiction arises “where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter”: Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [12] (Kirk JA). An ‘essential matter’ can be a critical argument raised, as was explained in Dranichnikov at [24] and [25]: “To fail to respond to a substantial, clearly articulated argument relying upon established facts” was not only a denial of procedural fairness, but a constructive failure to exercise jurisdiction or it can arise where there is “a failure to understand or determine a case or claim”: Day v SAS Trustee Corporation [2021] NSWCA 71 at [37]; Dranichnikov at [24].

128. It is important to restate the proper boundaries of this ground of review. In that respect, the following matters should be noted. First, the ground of review is concerned with a substantial and clearly articulated argument relying upon established facts: see also Rahman v Insurance Australia Ltd t/as NRMA Insurance (2022) 101 MVR 149; [2022] NSWSC 1079 at [17]. In Ming it was explained relevantly in these terms (at [15] – citations omitted):

A risk with this type of argument is that claims about failure to address matters can shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review. Further, as discussed below, it is not necessary for judicial decision-makers to address every argument or every piece of evidence in delivering reasons. Hence the need to show that there has been a failure to grapple with a substantial, clearly articulated argument … The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of its power by reason of having failed to engage with an issue of importance to the matter being resolved. (Emphasis in original)

129. Secondly, and as a corollary of the first matter, the ground of review is not concerned with “any failure to refer to any argument put” (Wang v State of New South Wales [2019] NSWCA 263 at [63]), less still one where no argument is put – which is a situation here.

130. Here, no “consequential injury” or “surgery was relevant” (in the way earlier outlined) argument was advanced, nor anything remotely approaching it. Rather, the plaintiff put a very specific case that his cervical spine injury was not a minor injury because of the presence of radiculopathy: a finding that radiculopathy was present of course would fall within the exception to the statutory definition as contained in cl 4(1) of the Regulation. It is, with respect, a little difficult to accept the proposition that there could possibly be a failure of any kind to deal with such an argument when the argument was simply not put. Nor, given my finding that there was no other case that clearly arose from the material for the medical assessor to appreciate its existence, is there any other basis upon which to uphold this ground. Nor, further, was there any “established fact” in connection with what the surgery involved: as I have earlier noted, there was no finding and, no less importantly, as the plaintiff accepted, no evidence about what the surgery in fact involved (see [111], above).

131. I do not accept that any reviewable error (or indeed any error) has been demonstrated.

Ground 3(d): the complaint about reasons

132. The fourth error was said to be that the medical assessor failed to provide legally sufficient reasons. In this respect, the plaintiff’s essential submission was that, having found that the plaintiff sustained a neck injury in the accident “rendering pre-existing changes symptomatic, resulting in radicular symptoms, and culminating in surgery”, the medical assessor “failed to give any reasons at all as to why the fact of the surgery having been performed did not render the plaintiff’s injuries ‘non-minor’” (plaintiff’s submissions at [77]).

133. There is no doubt that a medical assessor is required to provide reasons: s 7.23(7). When there is a complaint about their adequacy, any evaluation of them is context dependent. In Sydney Trains v Batshon [2021] NSWCA 143 at [48], this principle – one of general application – was expressed, in the context of the reasons required from an Appeal Panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW), in these terms: “No mechanical formula can be given for determining what constitutes sufficient reasons, but it is particularly important that a complaint that they are inadequate be assessed against the circumstances of the particular case”.

134. The “circumstances” of this case include the following. The plaintiff’s specific case, advanced before the medical assessor, was that he had radiculopathy which had the consequence that his cervical spine injury was excluded from being minor injury. The medical assessor dealt with that case, and made a finding that the plaintiff did not have radiculopathy – only non-verifiable radicular complaints – with the result that the plaintiff’s injury was held to be a minor injury. The medical assessor’s reasons identify (a) the case the plaintiff made in that respect; (b) the finding that he made; and (c) his conclusion on that issue. The reasons of the medical assessor – and the path of reasoning – was clear. They were legally sufficient, in my view. Indeed, the plaintiff does not make any case about radiculopathy in this Court.

135. The “circumstances” of this case also include the fact that this complaint is, in truth, about an absence of reasons in dealing with the case that was never run by the plaintiff below. In my view, it is inapt, in those circumstances, to attempt to assail the reasons of the medical assessor based upon an argument that no legally sufficient reasons were provided: in the circumstances of this case, none were required to deal with the case that was never made, nor one that arose on the material.

The challenge to the decision of the delegate: consideration

136. As I have earlier noted, the plaintiff applied for a review of the medical assessment. On 9 September 2022, that application was refused.

137. The plaintiff submitted, even if the Court rejected the challenges made to the decision of Medical Assessor Assem, that would not foreclose judicial review in connection with the decision of the delegate. I do not accept that submission.

138. In my view, having rejected all grounds of review, there is no basis upon which the matter could be the subject of a different outcome by a delegate. That is because, even if error was demonstrated in the reasons of the delegate that warranted it being returned for reconsideration under s 7.26(1) according to law, this Court has determined that the decision of the medical assessor was in accordance with law. In those circumstances, and contrary to what the plaintiff submitted, it is simply not open for any delegate, to arrive at a decision that would be inconsistent with that conclusion; it would thus not be open for any delegate to conclude that the assessment by the medical assessor “was incorrect in a material respect”: s 7.26(2) of the Act.

139. It follows that this is a case where it would be futile to remit the matter to the delegate (or even another delegate) for redetermination in light of my reasons.

Orders

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

1. Order, pursuant to r 59.10(1) of the UCPR, the time for filing of the summons in this Court be extended until 8 December 2022.

2. Order the amended summons filed 22 February 2023 be dismissed.

3. Order the plaintiff pay the first defendant’s costs of the proceedings in this Court.

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Decision last updated: 29 August 2023