Martin v Insurance Australia Limited t/as NRMA Insurance

[2017] NSWSC 1059

Supreme Court

New South Wales

Medium Neutral Citation:

Martin v Insurance Australia Limited t/as NRMA Insurance [2017] NSWSC 1059

Hearing dates:

3 August 2017

Date of orders:

21 August 2017

Decision date:

21 August 2017

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

 

(1) By order in the nature of certiorari quash the decision of the Proper Officer of the State Insurance Regulatory Authority of New South Wales in matter number 2016/04/3475 issued on 14 December 2016.

 

(2) Matter number 2016/04/3475 is remitted to the State Insurance Regulatory Authority of New South Wales to be determined according to law.

 (3) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 – application for further medical assessment- decision of a Proper Officer – whether the Proper Officer applied incorrect principles to s 62 - whether the Proper Officer applied the different test in clause 14.7 of the Guidelines - whether additional medical reports were additional relevant information- whether the Proper Officer determined whether additional information was capable of having a material effect on the outcome of the previous assessment

Legislation Cited:

MAA Medical Assessment Guidelines, 1 October 2008
Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
AMP Capital Investors Limited v Transport Infrastructure Development Corporation [2008] NSWCA 325
Balenzuela v De Gall (1959) 101 CLR 226
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FL 304
Insurance Australia Limited t/as NRMA Insurance v Asaner [No 2] [2016] NSWSC 1078
Jubb v Insurance Australia Ltd [2016] NSWCA 153
Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sydney Water Corporation v Caruso [2009] NSWCA 391

Category:

Principal judgment

Parties:

Jacinta Louise Martin (Plaintiff)
Insurance Australia Limited t/as NRMA Insurance (First Defendant)
State Insurance Regulatory Authority (Second Defendant)
Proper Officer appointed by the State Insurance Regulatory Authority for the Motor Accidents Medical Assessment Service (Third Defendant)

Representation:

Counsel:
EG Romaniuk SC with TJJ Willis (Plaintiff)
KP Rewell SC (First Defendant)

  Solicitors:
Somerville Lasundry Lomas (Plaintiff)
Curwoods Lawyers (Second Defendant)
Crown Solicitor (Submitting Appearance Second & Third Defendants)

File Number(s):

2017/47050

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review of a decision of a Proper Officer of the State Insurance Regulatory Authority. By summons filed 14 February 2017, the plaintiff seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the determination and statement of reasons issued by the second defendant, constituted by the third defendant, on 14 December 2016 is void and of no effect; secondly, an order setting aside the determination and statement of reasons issued by the second defendant constituted by the third defendant on 14 December 2016; and finally, an order remitting the matter to second defendant for determination by a different Proper Officer according to law.

2. The plaintiff is Jacinta Louise Martin (“Ms Martin”). The first defendant and active contradictor, is Insurance Australia Limited trading as NRMA Insurance (“the insurer”), the insurer liable for Ms Martin’s claim. The second defendant is the State Insurance Regulatory Authority. The third defendant is a Proper Officer appointed by the State Insurance Regulatory Authority for the Motor Accidents Medical Assessment Service. The second and third defendants have filed submitting appearances, save as to costs.

3. Ms Martin relied upon the affidavit of her solicitor Robert Warren dated 12 April 2017. Both parties relied upon their joint court book.

Factual Background

4. Ms Martin is 49 years old. She has Bachelor of Applied Science in Nursing and has also obtained postgraduate qualifications in Occupational Health and Safety and Management. She has worked as a registered nurse and as an injury management adviser with NSW Police for a period of nine years until her medical retirement in 2015.

5. Ms Martin alleges that she suffered physical injuries from a motor accident on 18 May 2006. She was 26 weeks pregnant with her second child.

6. The insurer denies that the accident on 18 May 2006 was caused by the fault of its insured driver and denies liability.

7. Ms Martin alleged that she suffered the physical injuries caused by the motor accident on 18 May 2006 including an injury to the lumbar spine, injuries to both hips, an injury to the right sacroiliac joint resulting in pelvic instability and injuries to both knees.

8. Ms Martin states that she was driving her unmarked police car in her role for the NSW Police and was traversing through a two-lane roundabout when another driver made a careless lane change, forcing her to the left hand side and hitting the curb. Ms Martin states she felt sick at the time of the accident, believing she had “jarred myself and the baby”.

9. On 28 July 2015, Ms Martin filed an application for assessment of a permanent impairment dispute by the medical assessment service.

10. The insurer disputes that any of the alleged injuries were caused by the subject motor accident and therefore disputes that Ms Martin suffers greater than 10% whole person impairment arising from physical injuries caused by the accident.

11. The dispute regarding impairment and causation of symptoms was referred for assessment to the Medical Assessment Service under the authority of the State Insurance Regulatory Authority.

The decision of the AMS – Dr McGrath

12. The matter was referred by the Medical Assessment Service to an approved medical specialist (“the AMS”), Dr David McGrath. Dr McGrath is a specialist in musculoskeletal, occupational and pain medicine. I shall briefly refer to his decision.

13. The injuries to be assessed are:

• Lumber spine – L4/5 disc injury and L5/S1 facet joint injury, soft tissue injury

• Right hip – 2mm cartilage interval and anterior acetabular tear, trochanteric bursitis

• Left hip – Tear of the labrum and ligamentum teres

• Right sacroiliac joint – pelvic instability

• Right knee – Sublaxation and maltracking

• Left knee – Sublaxation and maltracking

14. On 9 December 2015, Ms Martin attended an assessment with the AMS at the request of the medical assessment service to determine whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%.

15. The AMS recorded a history given by Ms Martin of the motor accident, the treatment details of injuries or conditions sustained since the motor accident and her current symptoms and treatment. He reviewed documentation and summarised the relevant documentation. At paragraph [6], the AMS recorded his conclusions. Importantly, under the heading “Diagnosis and Causation” the AMS stated that the dominant diagnosis is pregnancy related pelvic girdle pain (“PPGP”) and listed articles where the science of this condition is captured. (My emphasis added).

16. The AMS then stated:

“Ms Martin fulfils all of the criteria for this condition. She has all of the symptoms and signs and is following a common clinical pathway. There is recorded support for the risk factors of anxiety, bed rest and altered kinematics from her previous spinal trauma.

Ms Martin has developed complications from her disorder. She has bilateral hip disease, which has become painful. I accept the medical view of Dr Cummine who presented scientific literature supporting the high prevalence of asymptomatic hip pathology. Her hip pains developed over a number of years and are unrelated to MVA trauma. Dr Harrison also supports this view.

…

The proposed mechanism of injury, with a compression force through the right leg rotating the hemi pelvis, is irrelevant if the diagnosis in incorrect. Dr Bornstein, Dr Harrison and Dr Cummine refuted the hypothesis. I agree that the likelihood of pelvic injury is low with the minimal impact accident, as described. The various doctors who have examined her are not in agreement with respect to lumbar spine or hip joint injury. Ms Hodge, the primary treating professional, did not diagnose a hip or lumbar spine injury.

…

There is no contemporary evidence of pelvic joint or any other musculoskeletal injury. She was seen by her GP the day after the accident. The MVA was not discussed at all. Ms Martin saw her physiotherapist three weeks later. This is not unusual for this stage of pregnancy and previous problems. There is no contemporary evidence of injury for any of the listed injuries to be assessed.

The index MVA, with a jolt to the pelvis and spine, is biomechanically insufficient to create the alleged injuries (MAA 1.8a). Additionally, there was a contribution, it is negligible (MAA 1.9). The recognised condition PPGP is sufficient. Her impairment would have occurred independently of the accident.” (JCB p 647).

17. The AMS concluded that none of the alleged physical injuries were caused by the motor accident that occurred on 18 May 2006 and determined that Ms Martin had suffered the causally unrelated condition of PPGP.

18. On 21 December 2015, the certificate was issued by the AMS who determined that of the physical injuries referred to him for assessment, none were related to the motor accident. An assessment of the degree of permanent impairment of those injuries was therefore, not required.

Application for review under s 63 of the Motor Accidents Compensation Act

19. On 3 March 2016, Ms Martin filed an application for review under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). Proper Officer Redmond rejected that application. Ms Martin claimed that in respect to the connection between her post accident pelvic and related conditions of her spine, hips and knees and the motor accident on 18 May 2006, prior to the accident she displayed no symptoms.

20. In her analysis, Proper Officer Redmond stated:

“The Assessor has clearly considered the documentation provide (pp.6-8) noting the differing opinions (p.9). However, the test for causation, which the applicant clearly sets out in later submissions, is to determine whether the accident could have caused the motor accident and whether it did cause the motor accident. The fact that an injury was asymptomatic before an event does not provide conclusive evidence that the event caused the injury in circumstances when there is no evidence of injury contemporaneous with the accident. It is but one consideration before the Assessor. In regard to the applicant’s reliance upon the ‘but for’ test, clause 1.9 of the MAA Guidelines clearly recognises that although this test may be useful, it is not a definitive test and may be inapplicable in circumstances where there are multiple contributing cases.”

21. Proper Officer Redmond was not satisfied that there was reasonable cause to suspect that the assessment of the AMS was incorrect in a material respect and dismissed the review application.

Application for further medical assessment under s 62 of the Act

22. On 28 September 2016, Ms Martin made an application for a further medical assessment pursuant to s 62 of the Act. On 14 December 2016, Proper Officer Probert (“the Proper Officer”) dismissed that application. It is this decision that is the subject of judicial review in this court.

The relevant statutory provisions

23. It is convenient that I briefly set out the relevant provisions of the Act here.

24. The provisions setting out the procedures in relation to medical assessments are contained in Part 3.4 of the Act. Section 58 relevantly provides for when Part 3.4 should apply.

25. Section 58 of the Act relevantly reads:

“58 Application

(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as

“medical assessment matters”):

...

(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

…”

And s 62 of the Act relevantly reads:

“62 Referral of matter for further medical assessment

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

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

…

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

…”

The Medical Guidelines

26. The Motor Accidents Authority may issue guidelines described as Medical Assessment Guidelines (“the Guidelines”) with respect to various matters, including the procedures for referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessment, under Part 3.4 of the Act: s 44(1)(d). The following Guidelines issued under s 44(1)(d) of the Act are relevant here.

“Proper Officer Determination

14.6 For the purposes of section 62(1A) the word ‘material’ includes that it is relevant and capable of altering the outcome of a dispute about:

...

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

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

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

The grounds of review

27. The grounds of review of the Proper Officer’s decision dated 14 December 2016 are:

“(a) [The Proper Officer], in the exercise of the statutory task to decide the Plaintiff’s application under s 62 of the MAC Act, erred by failing to perform her statutory task, either expressly or constructively, in that the [Proper Officer]:

i. Erred as to the principles to be applied under s 62. The [Proper Officer] in error did not consider, and apply, the principles identified in Jubb v Insurance Australia Ltd [2016] NSWCA 153, and incorrectly applied the approach discussed in the decisions of Sing[h] v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443 and Alvanja v NRMA Insurance Ltd [2010] NSWSC 11182, and the approach in those decision[s] was material in the [Proper Officer’s] decision.

ii. Failed to make findings, supported by a statement of reasons showing the path of reasons as to the findings, as to why the Plaintiff had not established the requirements under s 62;

iii. Failed to provide a statement of reasons showing the path of reasons as to why the Plaintiff had not established the requirements under s 62;

iv. Erred in the nature of the statutory task in which the [Proper Officer] was performing. The [Proper Officer’s] role was in the nature of a gate-keeper role and did not involve the determination to any material degree of the question of the merits of the Plaintiff’s case on causation and the principles to be applied on the question of causation. The [Proper Officer] in error over-reached the statutory role and embarked on a material degree of the determination of the plaintiff’s case on causation;

v. Erred by failing to engage with the Plaintiff’s clearly articulated argument and position on the s 62 application by failing to correctly understand the plaintiff’s argument and position contained in the plaintiff’s written submissions document; and

vi. Erred by reaching a decision that was irrational, illogical and unreasonable.”

Submissions made by Ms Martin to the Proper Officer

28. Ms Martin provided a report of Dr Lyneham (an obstetrician and gynaecologist) dated 24 June 2016 together with supplementary reports of Dr Ghabrial dated 1 August 2016 and Associate Professor Cusi dated 25 August 2016. Dr Lyneham expressed the opinion that on his analysis of the records, Ms Martin did not fulfil “all of the criteria” for a diagnosis of PPGP during her pregnancy. He answered questions 4 and 5 as follows:

“4. What is the medical explanation of the Plaintiff’s situation?

I do not know, as it is well outside my area of expertise. I can only express the view that on my analysis of the records, Ms Martin had minimal, if any, symptoms of genuine PPGP during her pregnancy; and there is nothing in the medical literature to suggest that the sort of mild clinical picture that she did manifest during her pregnancy could have such extremely long-term and severe consequences.

5. Is there a body of peer reviewed knowledge that would support the Medical Assessor’s finding of “pregnancy-related pelvic girdle pain”?

In my opinion, no. On my analysis, the brief, out of context quotations from various abstracts neither captures the science of the condition, as Dr McGrath puts it, or supports his theory as to the cause of Ms Martin’s ongoing symptoms. He states in the fourth-last paragraphs of page 9:

She has continuing pelvic pains, a common outcome of PPGP.

On my reading of the literature, there is nothing to support a suggestion that continuing pelvic pain is a common outcome of PPGP, particularly ten years after a pregnancy during which a woman experienced only very mild symptoms, if any, of PPGP.”

The decision of the Proper Officer dated 14 December 2016

29. The Proper Officer at [4] stated that in making her decision she had considered the following legislation, guidelines and case law:

• Motor Accidents Compensation Act 1999 (‘the Act’)

• Medical Assessment Service Assessment Guidelines (‘the Guidelines’)

• Henderson v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (‘Singh’)

• Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 (‘Alavanja’)

30. It should be noted that the Proper Officer made no mention of Jubb v Insurance Australia Limited [2016] NSWCA 1153; (2016) 76 MVR 228 (“Jubb”) as being considered in making her decision. Nor is there any mention of Jubb in her reasons.

31. The Proper Officer continued:

“10. In my role as Proper Officer I must be satisfied that the applicant has provided additional relevant information about the injury or evidence of deterioration that is such as to be capable of having a material effect on the outcome of the previous assessment. This is outlined in section 62(1A) of the Act.

…

13. For example, if the ‘additional relevant information’ is particular information contained in a medical report, the application must state this, and not simply attach the medical report itself or refer to a conclusion of the report.

a. The information must be ‘additional’ to (i.e. not previously in the possession of) the party relying on it as a ground for further assessment (Singh, at 53)

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

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

14. For the purposes of section 62 (1A), and according to the Guidelines (at clause 14.6.3), the term ‘material’ includes that it is relevant and capable of altering the outcome of a dispute about permanent impairment, from ‘not greater than 10% WPI’ to ‘greater than 10% WPI’ or vice versa. This is the second limb of the test.

…

17. On page 6 of his certificate Assessor McGrath found that: “Ms Martin presents as a person who has difficulties with the pelvis and legs.” The assessment of this injury was “The dominant diagnosis is pregnancy-related pelvic girdle pain (PPGP).”

…

23. This Application for Further Assessment of a Permanent Impairment Dispute is made pursuant to section 62(1)(a) of the Act. Any preserved (sic) material errors cannot be addressed here and must be made in an application for a Medical Review under section 63 of the Act.

…

25. I note Assessor McGrath’s opinion on page 9 of his certificate:

“There is no contemporary evidence of pelvic joint or any other musculoskeletal injury. She was seen by her GP the day after the accident. The MVA was not discussed at all. Ms Martin saw her physiotherapist three weeks later. This is not unusual for this stage of pregnancy and previous problems. There is no contemporary evidence of injury for any of the listed injuries to be assessed.

The index MVA, with a jolt to the pelvis and spine, is biomechanically insufficient to create the alleged injuries (MAA 1.8a). Additionally, if there was a contribution, it is negligible (MAA 1.9). The absence of pain 24 hours after an accident is a strong indicator of negligible contribution. The recognised condition PPGP is sufficient her impairment would have occurred independently of the accident."

26. Assessor McGrath assessed the claimant as having a pre-existing hip pathology which has become symptomatic with time, and not as a result of the motor accident. He therefore assessed that of the injuries referred to him for assessment, none were related to the motor accident.

27. With regards to Dr Lyneham’s report dated 24 June 2016, Dr Ghabrial’s report dated 1 August 2016 and Dr Cusi’s report dated 25 August 2016, I note that the claimant was not clinically examined by any of these medical experts. Dr Lyneham appears to have based his opinion on documentation already considered by Assessor McGrath such as the report of Dr Padgett, the clinical notes from Calvary Hospital and the a list of articles previously mentioned and listed by the MAS Assessor.

…

30. However, although the reports of Dr Lyneham, Dr Ghabrial and Dr Cusi are additional to the party relying on them, I am not satisfied that they are additional relevant information. This is because they appear to provide an opinion which is merely saying the same thing but using different or greater analysis.

31. Even if I were to accept that Assessor McGrath's assessment of pregnancy related pelvic girdle pain was not an appropriate diagnosis as opined by Dr Lyneham, I am not satisfied that neither the report of Dr Lyneham report dated 24 June 2016 nor the reports of Dr Ghabrial dated 1 August 2016 and Dr Cusi dated 25 August 2016 are additional relevant information. This is because the applicant has not demonstrated how this information provides, "contemporary evidence of pelvic joint or any other musculoskeletal injury" that is causally related to the accident and which is such as to be capable of having a material effect on the outcome of the previous assessment. It was this lack of contemporary evidence of any injury caused by the subject accident that Assessor McGrath based his assessment on. As mentioned earlier in my role as Proper Officer, I am not required to undertake an attempt to discover whether there is any additional information on which the reviewed medical opinions are or could be based.

32. The onus is on the applicant to specify clearly how the additional relevant information about the injury is said to be capable of having a material effect on the outcome of the earlier assessment. The applicant has not addressed this in their submissions. On my reading of the reports of Dr Lyneham, Dr Ghabrial and Dr Cusi I note that the report does not contain an assessment of impairment or any evidence which could demonstrate an opinion that any injury was causally related to the subject accident and is in excess of the threshold.

33. I am not satisfied that the applicant has provided additional relevant information about the injury or evidence of deterioration that is such as to be capable of having a material effect on the outcome of the previous assessment. This is outlined in section 62(1A) of the Act. I have therefore dismissed this matter.

…”

32. While the Proper Officer accepted that the reports of Drs Lyneham, Ghabrial and Cusi were additional she was not satisfied that they were additional relevant information because Ms Martin had not demonstrated how this information provided “contemporary evidence of pelvic joint or any other musculoskeletal injury” that was causally related to the accident and which are such as to be capable of having a material effect on the outcome of the previous assessment as outlined in s 62(1A) of the Act.

33. Senior counsel for the insurer agrees that the Proper Officer’s statements in paragraphs [30] and [32] are wrong. Paragraph [30] is not in accordance with what is said in Jubb at [80] and paragraph [32] of the Proper Officer’s decision is not in accordance with what is said in Jubb at [31]. However, the insurer’s central argument is that these errors are not material to the Proper Officer’s final decision.

34. Senior counsel for Ms Martin submitted that the Proper Officer did not consider or apply the principles applied in Jubb and therefore misdirected herself as to her statutory duty.

Consideration of Jubb v Insurance Australia Ltd [2016] NSWCA 153

35. Jubb considered the proper construction of s 62 of the Act. At [13] to [35] Gleeson JA (with whom Meagher and Payne JJA agreed) explained:

“31 As Meagher JA observed in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 (Henderson v QBE Insurance) at [81], cl 14.7 states a different requirement from s 62(1A). The formation of the opinion or state of satisfaction which s 62(1A) requires is that the deterioration or additional information “be capable of having a material effect on the outcome of the previous assessment”. Clause 14.7 proposes a different and more stringent standard, namely, that it “would have a material effect on the outcome of the application”. That difference is not material in this case because the proper officer correctly identified the pre-condition to be as formulated in s 62(1A). The statutory provision must, of course, prevail: Henderson v QBE Insurance at [25] (Beazley P, Tobias AJA agreeing).

32 A number of aspects of s 62 should be noted. Each was common ground, except for the fourth matter below. First, it has been accepted that s 62 impliedly confers power on the proper officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subs (1A) are satisfied: Rodger v De Gelder at [70] (Beazley JA, McColl and Macfarlan JJA agreeing); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (QBE Insurance v Miller) at [4] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [78] (Meagher JA, Tobias AJA agreeing).

33 Secondly, in exercising the power of referral under s 62(1)(a) the proper officer performs the role of a gatekeeper. The capacity of the “deterioration of the injury” or “additional information” to affect a further medical assessment is a matter for the subjective satisfaction of the proper officer, not the determination of the court: Rodger v De Gelder at [113] (Macfarlan JA, McColl JA agreeing); QBE Insurance v Miller at [31] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [49]-[51] (Beazley P, Meagher JA and Tobias AJA agreeing).

34 Thirdly, the formation of the opinion or state of satisfaction required of the proper officer under s 62(1A) is subject to judicial review. The relevant question is whether the proper officer’s opinion has been formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119; D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [220]. In QBE Insurance v Miller at [36], Basten JA explained the standard of review as follows:

The critical question is thus “whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432:

“If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”

35 In the present case, the appellant sought review on the basis that the proper officer misconstrued the terms of the MAC Act.

36 Fourthly, and contrary to the insurer’s submissions, the power of referral is subject to a residual discretion (“may”) given in s 62(1) of the MAC Act, whether or not to refer a matter for a further assessment. That the power of referral may be exercised or not, at discretion, is not contradicted by any contrary intention appearing in the MAC Act: Interpretation Act 1987 (NSW), ss 5 and 9; Ward v Williams (1955) 92 CLR 496 at 505-506; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [33]-[34]. Nevertheless, the discretion is not entirely unconstrained. The power conferred on the proper officer must be exercised in accordance with the subject matter, scope and purpose of the statute: Peko-Wallsend, 40. Further and again, contrary to the insurer’s submissions, the existence of that discretion has been recognised in the authorities on s 62: see, for example, Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831; 71 MVR 322 (Mullin) at [35] (Beech-Jones J).”

36. The Court of Appeal in Jubb (at [72] to [82]) then had something to say about Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (“Singh (No 2)”). These comments are instructive but strictly obiter dicta.

“72 Next the appellant referred to statements of Rothman J in Singhv Motor Accidents Authorityof NSW(No 2) [2010] NSWSC 1443 (Singh (No 2)) as supporting a constrained approach to the meaning of “additional information”. The statements in Singh (No 2) are not applicable in the present case. That case proceeded on an incorrect approach to the precondition in s 62(1A) and is distinguishable from the present case on the facts. Further, Singh (No 2) should not be read as supporting the “same issues” limitation to “additional information” in s 62(1A) advanced by the appellant in the present case.

73 Singh (No 2) involved a challenge to the decision of the proper officer to refer a matter for further assessment, following an assessment by a review panel: see Singh v Motor Accidents Authority of NSW[2010] NSWSC 550: at [10]. The “additional information” relied on in the insurer’s application for referral included three medical opinions which post-dated the panel’s decision, together with a DVD of surveillance and an investigation report which pre-dated the panel’s decision.

74 Rothman J did not address the question of whether the proper officer’s opinion as to the pre-condition in s 62(1A) had been formed according to law. Instead, his Honour proceeded on the basis that the precondition to a referral for further assessment in s 62(1A) was a jurisdictional fact, and accordingly a matter for the determination by the court as an objective fact: at [39]. That approach was wrong for the reasons subsequently articulated by this Court in Rodger v De Gelder, QBE Insurance v Miller and Henderson v QBE Insurance. That error may be seen as having infected his Honour’s reasoning in respect of the meaning of “additional relevant information” in s 62(1A). For this reason, his Honour’s consideration of the meaning of “additional information” must be treated with some caution.

75 The two propositions in Singh (No 2) on which the appellant relied are conveniently summarised by Button J in McCosker v Motor Accidents Authority of NSW [2015] NSWSC 434 at [41] as follows:

The first is that material that was in the possession of a party at the time of the original assessment cannot be relied upon by that party as additional information in support of an application for a further assessment. The second proposition is that material that is an expert opinion substantially based upon material that was in the possession of the party at the time of the original assessment, even if the expert opinion was obtained after the original assessment, will also fall within the prohibition contained in the first proposition.

76 The first proposition was applied by Rothman J in Singh (No 2) to exclude the DVD and report as “additional information” because they had been held back by the party seeking to later rely upon it, namely, the insurer: at [53] and [60]. The second proposition was applied to exclude the further medical opinions that were not before the review panel because they were not “information additional to that upon which the extant certificate was based” (at [47]). Rothman J concluded (at [63]) that the further medical opinions were:

….material of the same kind as had already been considered. A further medical opinion is only additional information if it is of a different kind (that is, it deals with different issues) than opinions already expressed and issued.

77 However, the information relied on by the insurer in the present case as “additional” is of a different nature to that under consideration in Singh (No 2). The information was not held back by the insurer from the previous assessor, Dr Baker. Nor are the clinical notes of Ms Ozturk to be equated with a further medical opinion based on material that was in the possession of the insurer at the time of the previous medical assessment. Accordingly, the propositions in Singh (No 2) do not apply to the present case.

78 The insurer submitted that the propositions in Singh (No 2) were wrong. In light of the above conclusion, it is unnecessary to deal with that question to determine this appeal. Nonetheless, I would make two brief observations.

79 First, the distinction between satisfaction of the precondition in s 62(1A), which is a matter for the proper officer’s subjective opinion, and the discretion given to the proper officer in s 62(1)(a), needs to be kept in mind; otherwise, there is a risk of conflating the considerations to be balanced by the proper officer in exercise of the discretion given in s 62(1) and the formation of the proper officer’s opinion required by s 62(1A). The first proposition in Singh (No 2) is, with respect, open to doubt on this ground. It seems to me that the fact that material was in the possession of a party at the time of the original assessment is a consideration to be balanced by the proper officer in the exercise of the discretion given in s 62(1).

80 Secondly, the premise of the second proposition in Singh (No 2)seems to be that a further medical opinion cannot constitute “additional information” unless it is based on a change in the claimant’s underlying symptoms and circumstances. The correctness of that premise may be doubted. It would seem to conflate the separate grounds referred to in s 62(1)(a) of “deterioration of the injury” and “additional relevant information”. For the latter ground, it is the character of the information as additional and relevant which is to be evaluated by the proper officer when forming the opinion or state of satisfaction required by s 62(1A). A further medical opinion based on the same material as was available at the time of the earlier assessment may, depending on the cogency of reasons for the opinion expressed, constitute additional information. So much seems to have been accepted by Meagher JA in Henderson v QBE Insurance at [106].

81 The appellant also referred to other first instance decisions as providing support for the “same issues” limitation on the meaning of “additional information”: Garcia v Motor Accidents Authority [2009] NSWSC 1056; 54 MVR 102 at [38] (Rothman J); Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 at [43] (Davies J); and McCosker v Motor Accidents Authority of NSW [2015] NSWSC 434 at [45] (Button J). The insurer submitted that these decisions were wrong and sought a ruling to that effect by this Court. That request should be declined. It is unnecessary to consider the correctness of those decisions to determine the present case.

82 Grounds 2, 3, and 5 have not been made out. The consequential challenge in ground 6 to the certificate issued by Dr Virgona, must also be rejected.”

37. Both parties referred to Insurance Australia Limited t/as NRMA Insurance v Asaner (No 2) [2016] NSWSC 1078 (“Asaner No 2”) as support for their submissions. Asaner No 2 concerns a judicial review of a decision of a Proper Officer who refused the plaintiff’s application for a referral for a further medical certificate under s 62(1)(a). The Proper Officer had made his decision before the Court of Appeal had handed down its decision in Jubb and also after the hearing took place before Campbell J but before his Honour handed down his decision. The parties then provided supplementary submissions to Campbell J concerning Jubb.

38. In Asaner No 2, Campbell J stated at [16] and [17]:

“16. …Counsel for the plaintiff argue that Jubb makes clear that the proper officer erred by relying upon Singh (No 2) and Alavanja when directing himself as to the legal content of his power to refer again. The proper officer heavily relied upon this line of authority, such that he was “distracted… from the true nature” of the power which fatally infected his decision.

17. Counsel for Mr Asaner tacitly accept that the import of Jubb is that the proper officer’s reliance on Singh (No 2)and Alavanja was not correct. They argue, however, that such error is not material to the final decision, and therefore not an error of law. The proper officer’s decision was nonetheless a decision that was open to him in the correct exercise of the residual discretion as articulated in Jubbat [36].While he misconstrued the phrase “additional relevant information”, the proper officer’s findings of fact in respect of Dr Harvey-Sutton’s second report and the surveillance still stand, unaffected by error; and that even with the correct application of s 62, had these questions been considered at the point of the exercise of the discretion rather than when considering the operation of s 62(1)(a), the same decision would have been made. They further caution that the remarks in Jubb, particularly at [76]­ – [80], about the capacity of further medico-legal reports to constitute additional relevant information were obiter dicta, and that the principle in Henderson still holds the field; that is, that what informs the question of whether further medical opinion satisfies the precondition is whether the basis for the new opinion is additional relevant information which, Counsel submit, is not the case here.”

39. On this topic Campbell J in Asaner (No 2) concluded at [28]:

“28 I am not persuaded that the proper officer’s reliance on the construction he derived from Singh (No 2) was not material to his decision. I am of the view that the error not only contributed to his decision but was central to it. His “decision might have been different by reason of the possibility that [he] would not have made the [same] findings fact” but for the error: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353. That properly directed the same decision may be open is not to the point.”

Ms Martin’s submissions

40. Senior counsel for Ms Martin submitted that the principles to be applied in an application under s 62 of the Act for a further medical assessment are set out in the decision of Jubb.

40. According to senior counsel, in Jubb, the Court of Appeal rejected and sidelined the principles which had derived from the earlier decisions in Singh (No 2) and Alavanja. Although clause 14 of the applying guidelines talks materiality for the purposes of s 62 relating to the question of whether or not whole person impairment would exceed 10%, in Jubb, the Court of Appeal identified that this is not a requirement of the statutory power in s 62, and that clause 14 did not operate to impose that criterion as a requirement to the power in s 62.

41. The Proper Officer’s decision identifies that the decisions in Singh (No 2) and Alavanja were “considered” and identifies the principles of the cases in her decision. Senior counsel for Ms Martin submitted that these are principles which were identified by the Court of Appeal in Jubb as being incorrect.

42. The Proper Officer’s decision at [14] identifies the approach relies on clause 14 of the applying guidelines, and that is contrary to the principles identified in Jubb at [31].

43. Ms Martin claims that the Proper Officer at [32] shows the incorrect approach to materiality because it focuses on the question of greater than 10 % whole person impairment, and that is incorrect. Therefore, she says this Court could not be satisfied that the Proper Officer’s exercise of power under s 62 was not influenced and impacted by the application of the incorrect principles from Singh and Alavanja. She says that it is not open for this court to seek to effectively reconstruct, restate or remark the Proper Officer’s decision by reference to the correct principles as identified in Jubb, and no findings were made by the Proper Officer by reference to the correct principles.

44. According to Ms Martin, there are no reasons provided by the Proper Officer as to why the principles identified in Jubb should not be applied, or why if they are applied, the same outcome is achieved as if the principles from Singh (No 2) and Alavanja were applied. Accordingly, the Proper Officer failed to state reasons and that is independently sufficient for the Proper Officer’s decision to be set aside. Counsel for Ms Martin accepts that although reasons are not to be read finely attuned to the identification of error, in this case there can be no filling of the gaps or supposition as to reasons, which were in fact not stated.

45. Overall, senior Counsel for Ms Martin submitted that because the Proper Officer’s decision identified that the Proper Officer applied the incorrect principles to s 62, the Proper Officer misdirected herself as to the power to be applied and that represents an orthodox example of administrative error.

The insurer’s submissions

47. While senior counsel for the insurer accepts that the Proper Officer made no reference to the decision of the Court of Appeal in Jubb and also accepts that the effect of the decision of Jubb is to put aside the previous decisions of this Court in Singh and Alavanja, he submitted that the Proper Officer’s decision was correct and her decision is unaffected by the decision in Jubb for a number of reasons. They are that Ms Martin complained to the AMS of bilateral pelvic joint pain and the AMS concluded that Ms Martin’s pelvic joint pain was wholly unrelated to the motor vehicle accident on 18 May 2006.

48. Further the AMS’s gave reasons for rejecting any causative link between Ms Martin’s pelvic symptoms and the motor vehicle accident. They are firstly that there was no complaint of pelvic pain, or indeed any reference to the motor accident at all, when Ms Martin saw her general practitioner on 19 May 2006; secondly, although Ms Hodge a physiotherapist saw Ms Martin three weeks later and believed that she had suffered an injury to her right sacroiliac joint, the AMS concluded that the symptoms were not unusual for a woman at her stage of pregnancy (26 weeks); thirdly, the AMS was of the opinion that the absence of pelvic pain within 24 hours after the motor vehicle accident indicated that no pelvic injury was suffered; fourthly, the AMS considered the forces involved in the accident and concluded that “a jolt to the pelvis and spine is biomechanically insufficient to create the alleged (pelvic) injuries; and lastly, if there was a contribution, it is negligible”. The AMS concluded that Ms Martin suffers from bilateral hip disease, unrelated to the motor vehicle accident, which has become painful and accepted the opinion of an orthopaedic specialist, Dr Cummine, and the opinions of Drs Bornstein and Harrison; and on these bases, the AMS concluded that Ms Martin’s pelvic pain would have occurred independently of the motor accident and was not caused or contributed to by it.

49. According to the insurer, the critical matters in the opinion of the AMS, that resulted in any causative link between the plaintiff’s pelvic symptoms and the motor vehicle accident are the mechanical forces involved in the accident and the absence of any pelvic pain within 24 hours after the accident precluded any diagnosis of pelvic injury caused by the accident. The AMS proposed an alternative diagnosis, namely PPGP and referred to literature that in his view supported the alternative diagnosis. It should be noted that the AMS did not diagnose an alternative diagnoses, he diagnosed PPGP as the dominant diagnosis.

50. The insurer says that while it would have been desirable for the Proper Officer to refer to Jubb, in this particular case Jubb does not contradict, or even affect, the Proper Officer’s decision to refuse Ms Martin’s application for further medical assessment under s 62 of the Act.

51. The insurer submitted that the reports of Drs Lyneham, Ghabrial and Cusi simply could not and did not contradict the essential reasons for the AMS’s conclusion on causation of Ms Martin’s pelvic pain; and therefore the reports are not relevant information about the injury and could not have a material effect on the outcome of the decision of the AMS. For these reasons, the insurer says that there is no legal or jurisdictional error in the decision of the AMS to refuse Ms Martin’s application for further assessment under s 62 of the Act.

Conclusion

52. In this judicial review, the formation of the opinion or state of satisfaction required under s 62(1A) has been formed according to law. It has been accepted that s 62 impliedly confers power on the Proper Officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subsection (1A) are satisfied. If the opinion is reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. Also, the power of referral under s 62 of the Act is subject to a residual discretion (“may”) given in s 62(1) of the Act, whether or not to refer a matter for a further assessment. (Jubb [32], [33], [34] and [36]).

53. The Proper Officer refused to refer the matter for assessment again. The decision was principally based on two grounds. The first was that the material identified by Ms Martin was not additional relevant information. The second was that she was not satisfied that the additional information was capable of having a material effect on the outcome of the previous assessment.

54. So far as the first ground is concerned, the Proper Officer stated at [32] that although the reports of Dr Lyneham Dr Ghabrial and Dr Cusi are additional to the party relying on them, she was not satisfied that they are additional relevant information because they appear to provide an opinion which is merely saying the same thing but using different or greater analysis.

55. It seems to me that an opinion from Dr Lyneham who is a qualified obstetrician, which disagreed with the specialists who were not obstetricians with the diagnosis of PPGP, is legally capable of at least constituting additional information.

56. As to the second ground, the Proper Officer’s reasons for not being satisfied that the additional information was such as being capable of having a material outcome on the earlier assessment were expressed in [32] in the following terms.

“14. For the purposes of section 62(1A), and according to the Guidelines (at clause 14.6.3), the term ‘material’ includes that it is relevant and capable of altering the outcome of a dispute about permanent impairment, from ‘not greater than 10% WPI’ to ‘greater than 10% WPI’ or vice versa. This is [the] second limb of the test.”

57. To my mind the Proper Officer has applied the different and stringent test set out in clause 14.7 of the Guidelines by referring to there being no evidence which could demonstrate an opinion that any injury was causally related to the subject and accident and is in excess of the threshold.

58. Finally, in light of Jubb, it is my view that the Proper Officer did not have regard to her residual discretion given in s 62 of the Act as to whether or not to refer the matter for further assessment.

59. Hence, I cannot be satisfied that the Proper Officer’s exercise of power under s 62 was not influenced and impacted by her application of the incorrect principles set out in Singh (No 2) and Alavanja. It is my view that the errors not only contributed to the Proper Officer’s decision but were central to it. As the Proper Officer’s decision identifies that she applied the incorrect principles in relation to s 62, the Proper Officer has misdirected herself as to her statutory task. By doing so she fell into jurisdictional error. There is also an error on the face of the record. (see Jubb [43]).

60. Finally, senior counsel for the insurer submitted that this Court should not grant on a discretionary basis the relief claimed despite the errors because the endpoint decision made by the Proper Officer of the legal principles and correct factual will be the same.

61. The criteria for withholding of a remedy on that type of futility or discretionary basis is available only in few cases. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, the Court spoke of withholding a new trial “If it would inevitably result in the making of the same order as that made by the primary judge at first trial.” That control has also been described as requiring “reasonable assurance” that the outcome would be the same: see Balenzuela v De Gail (1959) 101 CLR 226 at 234-235, unless it is clear that the same outcome would be reached: see AMP Capital Investors Limited v Transport Infrastructure Development Corporation [2008] NSWCA 325 at [120], or it can be said with confidence that the same outcome would be reached: Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FL 304 at 413 (all refers to in Sydney Water Corporation v Caruso [2009] NSWCA 391). I am not satisfied that on remittal the decision would inevitably result in the making of the same order as that made by the Proper Officer. In the exercise of my discretion the Proper Officer’s decision should be quashed. The matter is remitted to the State Insurance Regulatory Authority of NSW to be determined according to law.

62. Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court orders that:

(1)   By order in the nature of certiorari quash the decision of the Proper Officer of the State Insurance Regulatory Authority of New South Wales in matter number 2016/04/3475 issued on 14 December 2016.

(2)   Matter number 2016/04/3475 is remitted to the State Insurance Regulatory Authority of New South Wales to be determined according to law.

(3)   The first defendant is to pay the plaintiff’s costs on an ordinary basis.

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Decision last updated: 21 August 2017