Mutawe v QBE Insurance (Australia) Ltd

[2025] NSWSC 19

Supreme Court

New South Wales

Medium Neutral Citation:

Mutawe v QBE Insurance (Australia) Ltd [2025] NSWSC 19

Hearing dates:

13 November 2024

Date of orders:

06 February 2025

Decision date:

06 February 2025

Jurisdiction:

Common Law

Before:

Griffiths AJA

Decision:

(1) Set aside the decision of the third defendant dated 7 February 2024.

(2) Remit the plaintiff’s application under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) to the second defendant for reconsideration according to law.

(3) The first defendant is to pay the plaintiff’s costs.

Catchwords:

TRAFFIC LAW AND TRANSPORT – Traffic law – Motor Accident Injuries Act 2017 (NSW), s 7.26 – where various injuries suffered by plaintiff referred for assessment by Personal Injury Commission – where medical assessor did not provide assessment of an injury – where medico-legal report in respect of that injury subsequently procured by insurer – where plaintiff applied for further medical assessment on basis of report, but certificate instead referred back to original medical assessor for correction under r 112 of Personal Injury Commission Rules 2021 (NSW) – where report not before or not referred to by medical assessor in course of r 112 assessment – where plaintiff’s application for referral to review panel refused by delegate of President of Personal Injury Commission – whether delegate erred in concluding that report not required to be considered by medical assessor because it was not available at time of first assessment

ADMINISTRATIVE LAW – Judicial review – summons seeking judicial review of decision of delegate of President of Personal Injury Commission for jurisdictional error and/or error of law on the face of the record – whether delegate misconstrued r 112 of Personal Injury Commission Rules – whether delegate misconceived effect of cll 67-73 of Procedural Direction PIC6 – whether delegate should have found that medical assessor did not conduct assessment in accordance with Motor Accident Guidelines contrary to s 7.21(1) of Motor Accident Injuries Act

Legislation Cited:

Motor Accident Guidelines (version 5.1), cll 6.18, 6.21

Motor Accident Injuries Act 2017 (NSW), ss 4.11, 6.27, 7.17, 7.20, 7.21, 7.23, 7.24, 7.26; Sch 2, cl 2(a)

Motor Accident Injuries Regulation 2017 (NSW), reg 13

Motor Accidents Compensation Act 1999 (NSW), ss 58, 61, 62

Personal Injury Commission Act 2020 (NSW), s 21

Personal Injury Commission Rules 2021 (NSW), rr 103, 104, 105, 112

Personal Injury Commission of New South Wales, Procedural Direction PIC6 – Medical Assessments, cll 67, 68, 69, 70, 71, 72, 73, 76, 77

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mohammad Mutawe (Plaintiff)
QBE Insurance (Australia) Ltd (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant) (submitting appearance)
Catherine Freeman in her capacity as the President’s Delegate under Section 7.26 of the Motor Accident Injuries Act 2017 (NSW) and Item 26 of Table of Delegates “A” of the Personal Injury Commission Act 2020 PIC Regulation and Scheme Regulations (Third Defendant) (submitting appearance)

Representation:

Counsel:
E G Romaniuk SC / H K Wall (Plaintiff)
M Allars SC (First Defendant)

Solicitors:
Paul A Curtis & Co (Plaintiff)
Sparke Helmore Lawyers (First Defendant)

File Number(s):

2024/169169

Publication restriction:

Nil

 Decision under review 

Court or tribunal:

Personal Injury Commission of New South Wales, Motor Accidents Division

Jurisdiction:

n/a

Citation:

n/a

Date of Decision:

7 February 2024

Before:

Catherine Freeman, President’s Delegate

File Number(s):

M22267/23

JUDGMENT

1. By a summons filed on 3 May 2024, the plaintiff seeks judicial review of a decision of the third defendant (Delegate), who is a delegate of the second defendant, the President of the Personal Injury Commission (President and Commission respectively). The Delegate refused to refer a medical assessment to a review panel of the Commission on the basis that, pursuant to s 7.26(5) of the Motor Accident Injuries Act 2017 (NSW) (MAI Act), the Delegate was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect (Decision).

2. The plaintiff seeks a declaration, pursuant to s 69 of the Supreme Court Act 1970 (NSW), that the Decision and accompanying reasons are void and of no effect, an order in the nature of certiorari setting aside the Decision and those reasons, and any further orders that the Court deems necessary.

3. As will be explained, the proceedings have a rather complicated and lengthy procedural history.

4. For reasons which follow, I have found that the Delegate’s Decision is tainted by jurisdictional error (and/or error of law on the face of the record, having regard to s 69(3) of the Supreme Court Act). The Decision should be set aside. The plaintiff’s application for referral to a review panel under s 7.26 of the MAI Act should be remitted to the President for reconsideration according to law. Costs should follow the event.

Background summarised

5. On 26 August 2020, the plaintiff was injured in a motor vehicle accident when a car collided with him as he walked across a street in Surry Hills. His physical injuries included a fractured jaw and facial scarring arising from the surgery to his jaw. It was not contested that the MAI Act was engaged. The plaintiff’s claim for compensation was refused by the first defendant, QBE Insurance (Australia) Ltd (Insurer), the CTP insurer of the driver involved in the accident. The Insurer is the only active defendant in the present proceedings.

First medical assessment

6. The plaintiff sought a medical assessment under Div 7.5 of the MAI Act. About eight months later, on 1 February 2023, the President of the Commission referred five medical disputes concerning different injuries suffered by the plaintiff to separate medical assessors. The assessment of the degree of permanent impairment resulting from the following particular injuries was referred to Dr Geoffrey (Paul) Curtin (the Medical Assessor):

1. “Mouth / jaw – fracture zygoma” (the zygoma is the bony arch of the cheek); and

2. “Skin / Scarring – Scarring below right eye pursuant to surgery”.

7. The Medical Assessor conducted a clinical examination of the plaintiff on 31 March 2023. Shortly after, he issued a certificate and accompanying reasons dated 2 April 2023 (First Certificate and First Statement of Reasons respectively). The First Certificate certified that the injury of “scarring below right eye” gave rise to a permanent impairment of 0%. It did not record any degree of impairment in respect of the “Mouth / jaw – fracture zygoma” injury.

8. The First Statement of Reasons described the injuries referred for assessment as “fracture zygoma-scarring below right eye pursuant to surgery”. Nevertheless, the Medical Assessor recorded that the plaintiff had complained that “following the accident, he could no longer place his full dentures into his mouth, because they caused discomfort, and that as a result he could only tolerate a soft diet”. Then, under the heading “Clinical Examination”, the Medical Assessor noted:

Intraoral examination revealed a normal degree of jaw opening without chin deviation. He was edentulous, and was not wearing dentures. He said that the lower alveolus was quite tender and that is why he couldn’t wear his dentures. The alveolus had quite an irregular outline, possibly because of some retained root fragments. He said that his teeth had been removed many years prior to the accident, and one would normally expect the alveolus to have recontoured over time and to be relatively smooth. There was nothing to suggest that fixation used to secure the right zygoma was interfering with his dentures.

9. On 7 June 2023, the Commission issued a combined certificate in respect of the plaintiff’s injuries. It assessed his whole person impairment as 3%, which reflected a certificate issued by another medical assessor in relation to different injuries (see MAI Act, s 7.23(8)(b), which applies where several medical assessments have been undertaken). The combined certificate noted that the assessment conducted by Medical Assessor Curtin resulted in a certificate which assessed the plaintiff’s degree of permanent impairment only in relation to scarring below his right eye as 0%.

Dr Payten’s report

10. On 11 April 2023, nine days after the First Certificate had been issued, the Insurer’s solicitors wrote to Dr Robert Payten, an ear, nose and throat specialist, requesting that he conduct a medico-legal examination of the plaintiff. Senior counsel for the Insurer made the following submission as to why that report was procured:

ALLARS: … my instructions are that the insurer was concerned that it didn’t see in the first MAC a certification that the degree of permanent impairment in respect of the mouth jaw was not greater than 10 percent. It saw the omission and it sought the report from Dr Payten because there was – from the plaintiff to register an agreement at the outcome of the claim and so the report was commissioned because the insurer wanted to confirm that matter which had been referred, the mouth, jaw, it wanted a medical assessment of the mouth jaw fracture zygoma.

HIS HONOUR: Why?

ALLARS: Because it contemplated that it would have to seek a referral to a review panel.

HIS HONOUR: It can’t, on your argument it can’t go to a review panel. Nor could it go for further assessment, the insurer is just throwing money out the window.

ALLARS: The insurer, possibly also didn’t understand the significance and the role of the rule 112 referral process.

11. Dr Payten subsequently provided to the Insurer a report dated 22 June 2023. The report makes frequent reference to “a hard mass palpable at the apex of the right upper buccal sulcas” (ie, on the upper right gum), which prevented the plaintiff from wearing his dentures. In response to the Insurer’s question as to whether the plaintiff’s injuries were caused by the motor accident, Dr Payten opined: “The pain he experiences in the area of the right upper buccal sulcus is due to that fracture [of the right zygoma] and to the surgery required to reduce the fracture and fix it in place” (relevantly, the surgery to repair the fracture to the right zygoma was performed by operating upwards from inside the mouth). Dr Payten said that the plaintiff had a disorder of mastication (ie, difficulty chewing on hard food) caused by the accident. Dr Payten concluded that the plaintiff had suffered permanent impairment of 10%.

12. On 5 July 2023, the Insurer served Dr Payten’s report on the plaintiff and asked that he “concede [his] injuries are not greater than 10% WPI”. (Under s 4.11 of the MAI Act, no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%.)

Plaintiff’s application for further medical assessment

13. On 1 November 2023, the plaintiff applied for a further medical assessment on the basis of “additional relevant information about the injury”, namely Dr Payten’s report and his diagnosis of a “disorder of mastication”, which disorder “attracts in its own right an assessment of 10% WPI”. Among the documents provided by the plaintiff in support of his application for further medical assessment was a copy of Dr Payten’s report. The plaintiff submitted that he had a permanent impairment greater than 10% when the 3% figure in the combined certificate was added to the 10% figure assessed by Dr Payten .

14. The power to refer a medical dispute for further medical assessment is contained in s 7.24 of the MAI Act:

7.24   Further medical assessment after initial medical assessment

(1)   A medical dispute referred for assessment under this Division may be referred again for assessment under this Division at any time by a court, a merit reviewer or the Commission.

(2)   A medical dispute referred for assessment under this Division may be referred again for assessment under this Division by the claimant or the insurer, but only on the grounds prescribed by the regulations (if any) in relation to the medical assessment matter to which the dispute relates.

(3)   A medical dispute may not be referred again for assessment by the claimant or the insurer on more than one occasion.

(4)   Referral of a medical dispute under this section by a claimant or an insurer is to be by application to the President.

(5)   The President is to arrange for the medical dispute to which the application relates to be referred to one or more medical assessors for a further medical assessment, but only if the President is satisfied that the application meets the requirements for referral under subsection (2).

(6)   This section does not affect the final assessment of the degree of permanent impairment of an injured person after an interim assessment of permanent impairment.

15. The combined effect of subss (2), (4) and (5) is that the President’s power to refer a medical dispute for further medical assessment on the application of a claimant or insurer is limited to the grounds identified by reg 13 of the Motor Accident Injuries Regulation 2017 (NSW) (MAI Regulations), which provides:

13   Grounds for further medical assessment (section 7.24 (2))

(1)   A medical dispute may be referred again for assessment under Division 7.5 of the Act on the grounds of deterioration of the injury or additional relevant information about the injury.

(2)   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.

16. By way of contrast, it may be noted that the Court’s power in s 7.24(1) to refer a medical dispute for further medical assessment is not limited to the grounds identified in reg 13. But that power is not relevant here.

17. Returning to the background history, the plaintiff’s application for a further medical assessment was delegated by the President to Principal Member John Harris (the Principal Member) for determination. Notably, the Principal Member did not determine that application on its terms. Instead, on 30 November 2023, relying on the different power in r 112(1) of the Personal Injury Commission Rules 2021 (NSW) (PIC Rules) and with the consent of the parties, the Principal Member referred the First Certificate back to the Medical Assessor for correction on the basis that the First Certificate was incomplete.

18. Rule 112 provides:

112   Correction of incomplete certificate

(1)   The Commission may refer a matter back to a medical assessor or panel if the assessor or panel provides an incomplete certificate to allow the assessor or panel to correct the certificate.

(2)   In this rule—

incomplete certificate means a certificate that fails to comply with—

(a) section 61 of the MAC Act, or

(b) section 7.23 of the MAI Act.

19. Section 61 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) relevantly provides:

61   Status of medical assessments

(1)   The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

…

(9)   A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

…

(11)   If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error.

20. Similar provisions to those in s 61(1), (9) and (11) of the MAC Act are contained in s 7.23(1), (7) and (9) respectively of the MAI Act.

21. The terms of the r 112 referral required the Medical Assessor to “determine whether the [First Certificate] is incomplete” and, if necessary, to issue a new certificate as required by cl 73 of the Commission’s Procedural Direction PIC6 – Medical Assessments (PIC6).

22. PIC6 was made by the President under s 21 of the Personal Injury Commission Act 2020 (NSW). The Insurer acknowledged that, unlike the PIC Rules, PIC6 is not a legislative instrument.

23. It is desirable to set out cll 67-73 of PIC6:

Incomplete Certificates in the Motor Accidents Division

67.   Rule 112 of the PIC Rules provides for a matter to be referred back to a medical assessor or medical review panel for the assessor or review panel to correct an incomplete certificate.

68. A certificate is incomplete when it does not comply with the requirements of section 61 of the 1999 Act or section 7.23(7) of the 2017 Act.

69.   If a medical assessor or review panel provides an incomplete certificate, the Commission may refer the matter back to the medical assessor or review panel to ensure it complies.

70.   Either party may request that the matter be referred back to the medical assessor or review panel due to an incomplete certificate by making an application, in writing, to the PIC.

71.   Examples of incomplete certificates include, but are not limited to, where:

(a)   disputes and/or injuries are not referred to;

(b)   submitted documentation is not referred to;

(c)   a certificate is unsigned, or

(d)   a certificate or parts of the certificate are omitted.

72.   In considering whether or not the certificate is incomplete, the Commission may seek submissions from the parties.

73.   After being notified of an incomplete certificate, the medical assessor must issue a complete certificate to the parties. To do this, the medical assessor may require a claimant to attend further examination.

24. Returning now to the Principal Member’s reasons for referring the matter back to the Medical Assessor under r 112, the Principal Member noted that “it appeared that the jaw injury had not been previously assessed”. That is, it appeared that the Medical Assessor “did not assess the permanent impairment arising from the claimant’s Mouth / jaw fracture zygoma”.

25. The Principal Member then noted that, two days prior, a different delegate of the President had written to the parties and “expressed an intention to have the certificate referred back to Medical Assessor Curtain [sic] so that he may complete the assessment” (emphasis added), and that each party had “indicated that they did not object to the proposed course of action via messages communicated through the [electronic case management] portal”.

26. The “messages” referred to in the Principal Member’s reasons were not included in the materials in the Court Book.

27. The Principal Member made no mention of Dr Payten’s report in his reasons for making the r 112 referral. Nor did he explicitly state that the plaintiff’s application under s 7.24 for a further medical assessment was incompetent because the First Certificate was incomplete (but, as will shortly emerge, that is the way the Delegate apparently interpreted the Principal Member’s reasons for acting under r 112 and not s 7.24).

28. The Principal Member was silent as to whether or not Dr Payten’s report could be taken into account by the Medical Assessor, notwithstanding that it was plain that the plaintiff’s central objective was to have that report considered, as it constituted potentially significant further information on the degree of his physical impairment.

Second medical assessment

29. In early December 2023, the same Medical Assessor issued a further certificate and statement of reasons (Second Certificate and Second Statement of Reasons respectively). No further clinical examination was conducted of the plaintiff. The degree of permanent impairment caused by the accident was again stated to be 0%.

30. The Second Certificate and Second Statement of Reasons were substantially identical to the First Certificate and First Statement of Reasons with some minor additions to encompass the “Mouth / jaw – fracture zygoma” injury. The Second Certificate is dated 2 April 2023, being the date of the First Certificate, and 31 March 2023 is stated as the date of assessment, which again accords with the date recorded in the First Certificate.

29. In respect of the jaw injury, the Second Certificate certified (emphasis in original):

The following injuries caused by the motor accident have resolved and do not result in permanent impairment:

•        face – fracture zygoma

An assessment of [the] degree [of] permanent impairment of these injuries is therefore not required.

32. Bearing in mind that the Second Certificate was largely a replication of the First Certificate, the Medical Assessor recorded in a section in the Second Statement of Reasons headed “Submissions” that the plaintiff “did not produce any medical reports to support [his] claim” that he had suffered greater than 10% permanent impairment from the accident. Below that, under “Additional Late Documents”, it says: “No additional documents were provided”.

33. Some changes were made in the Second Statement of Reasons under the heading “Determinations – Permanent impairment”. In particular, the Medical Assessor accepted that the accident caused the fractured zygoma, but noted “there is no evidence that [the plaintiff] sustained any injury to his mouth or jaw”. As such, the injury previously labelled “Mouth / jaw – fracture zygoma” was redefined as “face-fractured zygoma”, and separately, it was noted that the “injury to mouth/jaw” was not caused by the motor accident.

34. There is no reference in the Second Statement of Reasons to Dr Payten’s report. Nor is there any reference to the Medical Assessor having considered whether the method of surgery to repair the fractured zygoma, which involved operating upwards through the mouth, was causally related to the plaintiff’s pain and mastication disorder.

35. On 7 December 2023, a further combined certificate was issued incorporating the Medical Assessor’s assessment of the “Face – fracture zygoma” injury and his assessment of 0% permanent impairment relating to scarring below the plaintiff’s right eye.

Plaintiff’s application for referral of second medical assessment to a review panel

36. On 20 December 2023, using the Commission’s pro forma Form M02, the plaintiff sought a review of the medical assessment carried out by the Medical Assessor which resulted in the Second Certificate and Second Statement of Reasons. The application for a referral to a review panel was made pursuant to s 7.26(2) of the MAI Act.

37. Section 7.26 relevantly provides:

7.26   Review of medical assessment by review panel

(1)   A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review.

(2)   An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect.

…

(4)   If a medical assessment under this Division is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment) (a combined certificate assessment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.

(5)   The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(5A)   The panel is to be constituted by 3 persons chosen by the President as follows—

(a)   2 medical assessors,

(b)   1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission.

(6)   The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(6A)   To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.

(7)   The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(8)   If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

…

(10)   An application under this section must be made within—

(a)   28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought, or

(b)   a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.

38. The plaintiff lodged submissions dated 18 December 2023 in support of his s 7.26 application. He contended that the Medical Assessor erred in two ways:

1. by failing to refer to Dr Payten’s report and/or by not providing a path of reasoning explaining either why he had not dealt with Dr Payten’s assessment or if he had even considered that assessment; and

2. by failing to take a medical history, including by asking relevant questions of the plaintiff, in respect of his disorder of mastication.

The Delegate’s reasons for the Decision

39. As noted above, in her reasons, the Delegate said that she was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and accordingly refused to refer the matter to a review panel.

40. In respect of the first alleged error, the Delegate’s reasoning was as follows:

15.   The claimant’s submissions clearly note that the report of Dr Payten was only received by the claimant after receipt of Medical Assessor Curtin’s original certificate and the subsequent combined certificate issued by Medical Assessor Cameron.

16.   The report of Dr Payten was not lodged by the claimant in respect of the original application for assessment of a medical assessment matter referred to Medical Assessor Curtin. The report of Dr Payten was therefore not in evidence before Medical Assessor Curtin for the purposes of his assessment. There can be no reasonable cause to suspect that the medical assessment was incorrect in a material respect because the Medical Assessor failed to take account of information that was not available to him at the time of the assessment.

41. As to the second alleged error, the Delegate reasoned:

22.   A reading of the reasons confirms that Medical Assessor Curtin was aware that the claimant reported that his diet was limited to soft foods … A reading of the certificate indicates that, following his examination of the claimant’s face and mouth, Medical Assessor Curtin did not consider the claimant’s zygoma fracture was the reason for the claimant’s difficulty in wearing his dentures (and his associated difficulty with mastication).

The judicial review challenge to the Decision

42. The plaintiff claims that there are two reviewable errors in the Delegate’s Decision, which he contends constitute either jurisdictional errors or errors of law on the face of the record. The errors are identified in grounds 8(a) and (b) respectively in the summons. Those grounds (together with the related conclusory claim in ground 8(c)) are not ideally drafted. They are as follows:

8. The errors are as follows:

a. The President’s delegate, in the purported, but erroneous, exercise of power under s 7.26(2) as to whether the medical assessor’s assessment was incorrect in a material respect, erroneously misstated, misunderstood and misapplied Regulation 112 of the Personal Injury Commission Rules 2021 (NSW) and Clauses 65 to 71 of Procedure Direction PIC 6 in determining that the material that had been lodged by the Plaintiff in the Plaintiff’s application for further medical assessment, including the Plaintiff’s clearly articulated case as set out in paragraph 7(7i) above, was not to be considered, or was not required to be considered, by the medical assessor such that the medical assessor’s failure to refer at all to that material did not constitute the medical assessor’s assessment being incorrect in a material respect.

b. The President’s delegate, in the purported, but erroneous, exercise of power under s 7.26(2) as to whether the medical assessor’s assessment was incorrect in a material respect, erroneously determined, in the gateway evaluative exercise being undertaken by the President’s delegate, that the medical assessor’s limited reference to the Plaintiff’s dietary restriction was sufficient such as to establish that the medical assessor had dealt with matters pertaining to the Plaintiff’s case, including the Plaintiff’s clearly articulated case as set out in paragraph 7(7i) above, that the Plaintiff suffered a jaw fracture with an anatomical complication leading to a disorder of mastication such that it was to be concluded that the medical assessor’s assessment was not incorrect in a material respect.

c. As a result of the above, the President’s delegate did not exercise her statutory function s 7.26(2) and did not discharge that statutory function to correctly determine the Plaintiff’s application for a review of the medical assessor’s assessment.

43. I understand ground 8(a) to claim that the Delegate erred in determining that Dr Payten’s report was not to be considered, or was not required to be considered, by the Medical Assessor. This is said to involve a misconstruction or misapplication of r 112 of the PIC Rules and cll 65-71 of PIC6. In the plaintiff’s submissions (but not in the summons) it was also claimed that the Delegate had misconstrued or misapplied cl 73 of PIC6.

44. The plaintiff contended that because the Medical Assessor had not, in April 2023, assessed the jaw injury, including for mastication, that statutory task had to be done when the matter was returned to the Medical Assessor by the Principal Member under r 112. He submitted that the Delegate erroneously construed the relevant statutory and regulatory provisions, with the consequence that the “entire logic of the referral back was undermined” (see [31] of the plaintiff’s written submissions in this Court).

45. On one view, ground 8(a) may also implicitly raise an ancillary point, which is alluded to at [32]-[34] of the plaintiff’s written submissions. It is that the Principal Member misconstrued his power in deciding to refer the matter back to the Medical Assessor under r 112 rather than dealing with the merits of the plaintiff’s application for further medical assessment which was based on the additional information disclosed in Dr Payten’s report. The plaintiff submitted at [33] of his written submissions:

In this case, further, the Principal Member decided to engage the power to refer the matter back to the Medical Assessor to complete the apparently incomplete medical assessment, rather than dealing with the merits of the application made by the Plaintiff which was based upon additional relevant information about the injury being available. If the President’s Delegate was correct about the restrictive scope of the power to refer a matter back to a Medical Assessor, then the Principal Member was incorrect to have referred the matter back to the Medical Assessor and the Principal Member Harris should have determined the application before him, and not proceeded on the basis of an application that was not before him and about which the Principal Member was incorrect as to the scope of the power that was being exercised.

46. The plaintiff’s senior counsel confirmed in oral address, however, that the only decision the subject of judicial review challenge is that of the Delegate.

47. In support of ground 8(a), the plaintiff submitted that the Delegate had an erroneous understanding of the scope of the power under r 112 and failed properly to recognise the Medical Assessor’s error in not engaging with the plaintiff’s clearly articulated case. The Delegate’s decision was described as one which was “not properly formed according to law, was illogical, took into account irrelevant considerations and misconstrued statutory provisions”, citing QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; (2013) 67 MVR 322 at [36].

48. I understand ground 8(b) to be to the effect that the Delegate erroneously determined that the Medical Assessor’s limited reference to the plaintiff’s dietary restriction was a sufficient consideration of the plaintiff’s case which relied on Dr Payten’s report.

49. In oral address, the plaintiff’s senior counsel explained that the claim was that the Medical Assessor failed to take a proper history in relation to the plaintiff’s mastication disorder because he used the “wrong temporal reference” in focussing upon the issue as at the time of the First Certificate and without reference to the Motor Accident Guidelines (Guidelines) to which Dr Payten referred in his report.

50. I regard paragraph 8(c) of the summons as adding little to the two grounds set out in 8(a) and (b), other than to emphasise that the judicial review challenge relates to the Delegate’s purported exercise of her statutory function under s 7.26(2) of the MAI Act.

51. The Insurer’s submissions in support of the validity of the Decision may be summarised as follows. First, it was made clear in the First Statement of Reasons that the Medical Assessor had undertaken a clinical examination of the plaintiff’s mouth/jaw and had given clinical consideration to the plaintiff’s claim that his dentures no longer fitted. Moreover, as the Second Statement of Reasons indicates, the Medical Assessor made no change to his findings upon clinical examination, apart from adding various sentences. In those reasons he made clear that there was a distinction between the face-fractured zygoma and any injury to the mouth/jaw; that the face-fractured zygoma was caused by the accident but had resolved; and that any injury to the plaintiff’s mouth/jaw was not caused by the accident.

52. Secondly, the Medical Assessor did not err in conducting the r 112 referral without considering Dr Payten’s report. The Insurer submitted that the report could have been considered in a further medical assessment under s 7.24, but not in a r 112 referral.

53. Thirdly, the Insurer’s central submission was that the plaintiff’s application for a further medical assessment under s 7.24 was incompetent because the First Certificate was incomplete; hence, the Principal Member could not act under s 7.24 and could only do so under r 112. Senior counsel candidly acknowledged, however, that when the Principal Member made his decision, the Insurer “possibly also didn’t understand the significance and the role of the rule 112 referral process”.

54. In oral address, senior counsel for the Insurer submitted that the plaintiff’s application for referral under s 7.24 was incompetent because “to get a further referral you need to have an initial medical assessment, a MAC, and this MAC did not measure up, it was incomplete” and thus there was “no existing MAC”. Accordingly, the basis for the Principal Member’s r 112 referral was said to reflect a finding that the plaintiff’s request for a further medical assessment did not meet the statutory requirements. Senior counsel accepted that the Principal Member never explained in his letter that he regarded the plaintiff’s application for referral to be incompetent.

55. Senior counsel further submitted that a valid application for referral can only be made if “all certificates required to be issued in relation to the dispute have been issued”. This was said not to be satisfied here because no certificate had issued in relation to the “Mouth / jaw – fracture zygoma” injury when the application was made.

56. Fourthly, the Delegate did not misunderstand or misapply cll 65-71 of PIC6 because none of those clauses was referred to in the Delegate’s reasons, which simply relied on r 112. In addition, the Insurer contended that PIC6 is in the nature of a practice direction and not a legislative instrument and does not create legal rights and obligations.

57. Fifthly, as to the alleged misconstruction/misapplication of cl 73 of PIC6, the Insurer contended that this contention is beyond the pleading in ground 8(a) of the summons and is, in any event, misconceived. It contended that cl 73 did not mandate a further examination when a certificate is corrected under r 112, but simply confers a discretion to do so, as is reflected in the term “may” in that clause.

58. Sixthly, the Insurer contended that the plaintiff’s claims regarding the misconstruction/misapplication of cl 73 were not supported by cll 6.21 or 6.18(a) and (b) of the Guidelines. (These references are to the then current version 9.2 of the Guidelines. The corresponding clauses in version 5.1 of the Guidelines, to which the plaintiff referred, are cll 6.21, 6.18.1 and 6.18.2 respectively. For convenience, and noting that the respective provisions are identical in any event, the latter will be used.)

59. As to cl 6.21 (which provides that the evaluation of the degree of permanent impairment should only consider the impairment as it is at the time of the assessment), the Insurer submitted that it did not assist the plaintiff’s case because Medical Assessor Curtin did not change his evaluation in the second assessment, which was merely directed to addressing his earlier omission to say whether the plaintiff’s injury to his mouth/jaw was caused by the motor accident and whether there was a permanent impairment.

60. As to cll 6.18.1 and 6.18.2, the Insurer contended that these provisions had no application because Dr Payten’s report was not lodged with the first application for medical assessment. It only became available after the First Certificate was issued and therefore was not “available evidence” within the meaning of those provisions. It contended that cl 6.18.2 had no application because there was no necessity for a further clinical examination prior to the issue of the Second Certificate.

61. Seventhly, as to the plaintiff’s complaint that the Delegate failed to consider the plaintiff’s clearly articulated argument regarding the need to take into account Dr Payten’s report, the Insurer submitted that the argument was recognised by the Delegate, who considered it and properly rejected it.

62. The gravamen of the Insurer’s position is that the Medical Assessor saw himself as correcting an incomplete certificate, which is why he retained the same dates as the First Certificate. In other words, he was not issuing a fresh certificate, but was merely completing the incomplete First Certificate.

Consideration and determination

(a) Some additional relevant provisions

63. Although the primary focus of the judicial review challenge relates to the Delegate’s purported exercise of power under s 7.26 of the MAI Act, some consideration also needs to be given to other statutory provisions in that Act, as well several rules in the PIC Rules, cll 67-73 of PIC6 (see at [23] above) and relevant parts of the Guidelines.

(i) Statutory provisions

64. Commencing with the MAI Act, the topic of medical assessments is addressed in Div 7.5 in Pt 7. Section 7.17 contains two definitions for the purposes of Pt 7. The first, “medical assessment”, is defined to mean “an assessment of a medical assessment matter under this Division”. The degree of permanent impairment of an injured person is declared to be a “medical assessment matter” in cl 2(a) of Sch 2 to the MAI Act.

65. The second, “medical dispute”, is defined to mean:

(a)   a dispute between a claimant and an insurer about a medical assessment matter, or

(b)   an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission.

66. A claimant is obliged to comply with an insurer’s request that the claimant undergo a medical assessment by the insurer’s nominated health practitioner, which assessment must be carried out in accordance with the Guidelines (MAI Act, s 6.27(1)). A claimant is also obliged to comply with any request by the Commission to undergo a medical examination or an assessment by a medical assessor for the purposes of Div 7.5 (s 6.27(3)).

67. Relevantly, either party to a medical dispute (being the claimant or insurer) may refer a medical dispute about a claim to the President for assessment under Div 7.5. The President is obliged to arrange for the dispute to be dealt with by one or more medical assessors (s 7.20(2)). The claimant and insurer are both obliged to provide to the medical assessor such information as the assessor may reasonably require for the purposes of the medical assessment (s 7.20(4)).

68. Significantly, an assessment of the degree of permanent impairment of an injured person for the purposes of the MAI Act must be made in accordance with the Guidelines and the assessed degree of permanent impairment must be expressed as a percentage (s 7.21(1)).

69. Section 7.23 provides for the status of medical assessments and the provision of certificates as to the matters referred for assessment, as well as the consequences which flow from the issue of such certificates. Section 7.23 provides:

7.23   Status of medical assessments

(1)   The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2)   The certificate is, in any court proceedings or in any proceedings in connection with a merit review under Division 7.4 or a claims assessment under Division 7.6—

(a)   prima facie evidence of any matter certified as to the degree of impairment of earning capacity of the injured person as a result of the injury concerned, and

(b)   conclusive evidence of any other matter certified.

(3)   In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(4)   If a certificate as to any matter is rejected under subsection (3), the court is to refer that matter again for assessment under this Division and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(5)   A court may not substitute its own determination as to any medical assessment matter.

(6)   This section—

(a) does not prevent a court from referring a matter again for assessment under this Division (as provided for by section 7.24 (Further medical assessment after initial medical assessment)), and

(b)   does not require a court to refer a matter again for assessment under this Division if the matter is not a medical assessment matter.

(7)   A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

(8)   The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than a particular percentage (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury)—

(a)   each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor’s assessment is concerned,

(b)   based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment,

(c)   the combined certificate is conclusive evidence as to the degree of permanent impairment of the injured person and this section applies to the combined certificate accordingly.

(9)   If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error.

70. The Insurer described the power in subs (9) to issue a replacement certificate where a medical assessor is satisfied that the certificate contains “an obvious error” as a power for a medical assessor to act on their motion in issuing a replacement certificate so as to correct an obvious error.

71. It is notable that the effect of s 7.23(7) is to incorporate a medical assessor’s reasons into the certificate itself, a point which was acknowledged by the Insurer in oral address. This may be important because, on the Insurer’s argument, s 7.26 might not be available to refer a matter to a review panel where the reasons in a certificate were somehow incomplete or inadequate, perhaps even in a minor way. That seems most improbable but it is unnecessary to resolve that issue here.

72. Section 7.24 provides for the further medical assessment of a medical dispute which has previously been referred for assessment. That provision is set out at [14] above.

73. Section 7.26 provides for a claimant or an insurer to apply to the President to refer a medical assessment under Div 7.5 by a single medical assessor to a review panel for review. The relevant parts of s 7.26 are set out at [37] above.

(ii) PIC Rules

74. Turning now to additional relevant provisions in the PIC Rules, Pt 11 of those Rules contains provisions relating to medical assessment proceedings. Rule 103 provides for a claimant or insurer to lodge an application for assessment of a permanent impairment dispute as specified in s 58(1)(d) of the MAC Act, being a dispute as to 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%. Apart from disputes concerning claims for damages for non-economic loss, there is no time limit for making such an application, but an application can be lodged only if the parties have attempted to resolve the dispute and if other stipulated requirements are met (see r 103(2) and (3)).

75. Rule 104 should also be noted. Although the Insurer made no reference to this provision in its outline of written submissions, it figured prominently in senior counsel’s oral address. It provides:

104   Application for further medical assessment

A claimant or insurer may lodge an application for further assessment of a medical dispute, if an injury has deteriorated or there is additional relevant information, under section 62(1)(a) of the MAC Act, only if—

(a)   the dispute has previously been assessed by a medical assessor, and

(b)   all certificates required to be issued in relation to the dispute have been issued, and

(c)   the time for lodging an application to correct an obvious error, or an application for review, in relation to the original assessment of the medical dispute, has expired, and

(d)   an application to correct an obvious error, or an application for review, in relation to the original assessment of the medical dispute, if made, has been determined.

76. The Insurer contended that, in the particular circumstances here, the effect of r 104(a), (b) and (d) was to prevent any referral under s 7.24 until such time as appropriate steps are taken to rectify the fact that an existing certificate is incomplete (as was the case here, given that the First Certificate did not address the degree of any permanent impairment arising from the plaintiff’s “Mouth / jaw – fracture zygoma” injury). The Insurer further contended that, until such time as there is a complete certificate, “you don’t actually have an assessment within the meaning of the Act”. Thus, senior counsel for the Insurer contended that the plaintiff’s application for a further medical assessment under s 7.24 was “incompetent”. She further contended that “it wasn’t possible for Principal Member Harris to refer to a medical assessment because of that restriction, those preconditions, only if in rule 104”.

77. Senior counsel for the Insurer contended that the reference in r 104 to s 62(1)(a) of the MAC Act is incorrect – she said that the relevant provision is s 7.24 of the MAI Act. I doubt this claim. It is not supported by the terms of r 104, nor by cll 76 and 77 of PIC6 which separately address s 62 of the MAC Act and s 7.24 of the MAI Act.

78. In any event, reference should also be made to r 105, which provides for a claimant or insurer to lodge an application to refer a medical dispute for assessment under Div 7.5 of the MAI Act. It provides:

105   Application for assessment of medical dispute

(1)   A claimant or insurer may lodge an application to refer a medical dispute for assessment under Division 7.5 of the MAI Act—

(a)   for a dispute about a decision of an insurer, as soon as practicable after—

(i)   the insurer notifies the claimant of the outcome of the insurer’s internal review of the reviewable decision or the insurer’s decision to decline to conduct a review, or

(ii)   the date by which the insurer was to complete an internal review and notify the claimant of the outcome, where the insurer has failed to do so within the required period, or

(b)   for a dispute other than a dispute about a decision of an insurer—at any time.

(2)   An application may be lodged only if—

(a)   the insurer has failed to complete an internal review or notify the claimant of the decision on review within the required period, or

(b)   the insurer has declined to conduct an internal review.

(2A)   Subrules (1) and (2) do not apply to a medical dispute about the degree of permanent impairment of the injured person that has resulted from injury caused by the motor accident.

(2B)   A claimant or insurer may lodge an application to refer a medical dispute of the kind specified in subrule (2A) for assessment under Division 7.5 of the MAI Act at any time.

(3)   If an injury has not previously been the subject of a medical assessment, an application for further assessment of a medical dispute is not required and an original application to refer a medical dispute for assessment may be made in relation to the injury.

79. Division 11.2 of the PIC Rules deals with the conduct of medical assessment proceedings. Rule 112 (which is set out at [18] above) is in this Division. The Insurer drew attention to the fact that, in contrast with a medical assessor’s power under s 7.23(9) (ie, the power of a medical assessor acting on their own motion to issue a replacement certificate to correct an obvious error), the power under r 112 refers to both incompleteness and correction and is a power which is enlivened when the President refers a matter to a medical assessor.

(iii) PIC6 procedural directions

80. Clauses 67-73 are set out at [23] above.

(iv) Guidelines

81. As noted above, s 7.21(1) of the MAI Act requires a permanent impairment assessment to be made in accordance with the Guidelines. The Guidelines have to be read in conjunction with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides) (see cl 6.2 of the Guidelines). The Guidelines state in cl 6.18 that in evaluating the degree of permanent impairment the medical assessor must evaluate “all the available evidence”, including medical evidence and medico-legal reports (cl 6.18.1). One of the three stages of the assessment is “an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment” (cl 6.18.2). Moreover, cl 6.21 states that the “evaluation should only consider the impairment as it is at the time of the assessment” (emphasis added).

(b) Analysis

Ground 8(a)

82. For the following reasons, I consider that ground 8(a) should be upheld. The Delegate’s Decision involved jurisdictional error and/or one or more errors of law on the face of the record. The errors involved the misconstruction of r 112 of the PIC Rules, a misconception of the effect of cll 67-73 of PIC6 and a failure to appreciate that the Medical Assessor had not conducted an assessment of the plaintiff’s “Mouth / jaw – fracture zygoma” injury in accordance with the Guidelines, contrary to s 7.21(1) of the MAI Act. These errors were material in the Delegate’s Decision in which she refused to exercise the statutory power in s 7.26 of the MAI Act because she was not satisfied that the Medical Assessor’s second medical assessment was “incorrect in a material respect”.

83. As noted above, at the heart of the Delegate’s reasoning as to why a referral should not be made under s 7.26 as sought by the plaintiff is that Dr Payten’s report was “not in evidence” before Medical Assessor Curtin for the purposes of his assessment. The Delegate considered that this report could not be taken into account by the Medical Assessor because it post-dated the first medical assessment.

84. The Delegate’s reasons do not disclose whether or not, as a matter of fact, Dr Payten’s report was physically before the Medical Assessor. Similarly, the evidence before the Court did not make clear whether a copy of the report was actually forwarded to the Medical Assessor when the r 112 referral was made.

85. But it is plain that the Delegate took the view that this matter was not important because, even if a copy of Dr Payten’s report had physically been provided to the Medical Assessor, the Delegate considered that it could not be taken into account. This is because the Delegate considered that, in carrying out a r 112 referral, the Medical Assessor could only have regard to information which was available to the Medical Assessor when the original medical assessment (which resulted in the incomplete certificate) was carried out.

86. In my respectful view, the process of correcting an incomplete certificate where a matter has been referred back to a medical assessor or panel under r 112 is not frozen in time in the manner found by the Delegate.

87. In the present case, the r 112 referral was made in circumstances where the Medical Assessor had failed to assess the permanent impairment arising from the plaintiff’s “Mouth / jaw – fracture zygoma” injury, as was made clear in the Principal Member’s referral letter. It was plainly contemplated that the Medical Assessor would complete his medical assessment of that injury. This did not mean that the assessment of that injury was confined to the material or information which was available at the time of the first medical assessment. Such a restrictive view of the nature and scope of a r 112 referral is inconsistent with:

1. s 7.21(1) of the MAI Act;

2. relevant parts of the Guidelines; and

3. cl 73 of PIC6 (see also cl 71).

88. As to the first of those matters, s 7.21(1) requires that a permanent impairment assessment be made in accordance with the Guidelines. The r 112 referral required the Medical Assessor to assess permanent impairment relating to the plaintiff’s “Mouth / jaw – fracture zygoma” injury and to issue a completed certificate. This involved the Medical Assessor conducting a medical assessment which, by force of s 7.21(1), had to be made in accordance with the Guidelines.

89. This meant that the assessment had to comply with the following relevant Guidelines:

1. The Medical Assessor was required to evaluate the degree of permanent impairment as at the time of the assessment (cl 6.21), which in this case was in December 2023 when the r 112 referral was conducted.

2. The Guidelines state that an assessment has three stages (cl 6.18). The first stage involves a review and evaluation of “all the available evidence”, including medical evidence (cl 6.18.1). In this case, this should have included Dr Payten’s report which was available at the time when the r 112 referral was conducted. A copy of that report had been provided to the Commission and it ought to have been forwarded to the Medical Assessor for the purposes of the r 112 referral, but this appears not to have occurred because of the Principal Member’s misconception concerning the nature and scope of such a referral, which misconception was shared by the Delegate.

3. The second stage comprises an interview and a clinical examination, wherever possible, to obtain the information specified in the Guidelines and the AMA4 Guides necessary to determine the percentage impairment (cl 6.18.2).

4. The third stage comprises the preparation of a certificate as specified in cl 6.18.3.

90. Although not every case involving a referral back to a medical assessor under r 112 for the correction of an incomplete certificate will engage the above Guidelines (for example, where the relevant incompleteness is that the certificate is unsigned (see cl 71 of PIC6)), I see no reason why these Guidelines would not apply to an assessment conducted under a r 112 referral where a particular injury was not addressed in an earlier assessment, as is the case here.

91. As to cl 73 of PIC6, it expressly contemplates that, in conducting a r 112 referral, the Medical Assessor could require the plaintiff to attend a further medical examination. Thus a medical assessor conducting a r 112 referral is not limited to considering only information which was available at the time of the initial assessment. In its own terms, this provision is inconsistent with the proposition that the assessment under a r 112 referral is frozen in time.

92. PIC6 provides important context within which the PIC Rules are to be construed and applied. Although PIC6 is not a legislative instrument, it should be noted that s 21(4) of the Personal Injury Commission Act obliges the following specified persons to act in accordance with those directions:

(4)   Each of the following must comply with any applicable procedural directions—

(a)   members,

(b)   medical assessors,

(c)   merits reviewers,

(d)   the parties to proceedings and their representatives and agents.

93. The significance of cl 73 is not avoided or diminished by the fact that the power of a medical assessor to conduct a further examination of the claimant is a discretionary power. It is the availability of the discretionary power which is relevant and significant. The power is available to be used to obtain information in addition to that obtained during the course of the initial assessment. Clause 73 confirms that the assessment is not frozen in time, contrary to the Delegate’s view and the Insurer’s position.

94. Although the Insurer raised a pleading objection to the plaintiff relying on cl 73, it did not point to any prejudice and it provided submissions in relation to the significance of cl 73. I see no good reason why the plaintiff should not be allowed to raise the matter.

95. Clause 71 of PIC6 provides similar relevant context. It contains a non-exhaustive list of examples of incomplete certificates. They include where disputes and/or injuries are not referred to in a certificate. That was the case here with the First Certificate which did not refer to the plaintiff’s “Mouth / jaw – fracture zygoma” injury, notwithstanding that this injury had been referred to the Medical Assessor by the President for assessment pursuant to s 7.20 of the MAI Act. By virtue of the Principal Member’s determination under r 112, the Medical Assessor was required to assess that injury to determine the degree of permanent impairment. That assessment had to be conducted in accordance with the Guidelines by force of s 7.21(1) of the MAI Act.

96. I reject the Insurer’s contention as made in oral address that r 104(b) of the PIC Rules supports the Delegate’s Decision (see at [76] above). It may be noted that the Delegate made no explicit reference to r 104 in the reasons for the Decision. Rule 104 is set out at [75] above. I consider that the Insurer’s reliance on r 104(b) is misplaced. This is not only because I doubt that it applies to an application under s 7.24 (see at [77] above), but also because, in any event, I do not accept the Insurer’s construction of the provision. The Insurer’s position is implicitly predicated on the proposition that the reference in r 104(b) to “all certificates required to be issued in relation to the dispute have been issued” requires any certificate to be complete. I consider, however, that the reference to “all certificates” refers to cases where a claimant has suffered multiple injuries and the medical dispute has more than one component, which requires medical assessment by more than one medical assessor. I see no warrant for reading into r 104(b) the words “completed” or “valid” before the word “certificates”. But that is the effect of the Insurer’s proposed construction.

93. Nor do I accept the Insurer’s submission which is summarised at [51] above. It is clear that the Medical Assessor did not assess the plaintiff’s “Mouth / jaw – fracture zygoma” injury when he conducted the first assessment. That is the very reason why the Principal Member determined to refer the matter back to the Medical Assessor under r 112, rather than granting the plaintiff’s application for a further medical assessment on the basis of additional relevant information. On its own terms, the First Certificate was confined to an assessment of permanent impairment from the plaintiff’s facial scarring. Although the First Statement of Reasons recorded the plaintiff’s difficulty wearing his dentures and noted that “there was nothing to suggest that fixation used to secure the right zygoma was interfering with his dentures” (see at [8] above), this did not rise to the level of constituting an assessment of the plaintiff’s “Mouth / jaw – fracture zygoma” injury. Nor did it engage with the possibility, proposed later by Dr Payten, that the surgical path through the upper mouth was the cause of the plaintiff’s discomfort whilst wearing dentures.

94. For all these reasons, ground 8(a) should be upheld. For completeness, it is unnecessary to determine the plaintiff’s separate case that the Delegate erred in not being satisfied that the medical assessor failed adequately to deal with the plaintiff’s clearly articulated case as to the disorder of mastication.

Ground 8(b)

99. Strictly speaking, it is also unnecessary to determine this additional ground of review having regard to the plaintiff’s success in establishing ground 8(a). To the extent that ground 8(b) is directed to the fact that the Medical Assessor did not address the plaintiff’s complaint as to mastication (see at [8] above) with reference to relevant parts of the Guidelines (which was the approach adopted by Dr Payten), it should also succeed for similar reasons to those relating to ground 8(a).

100. The Insurer did not contend that judicial review relief should be withheld because the plaintiff consented to the r 112 referral. The Insurer did not challenge the plaintiff’s submission that when it consented to that course of action it assumed that Dr Payten’s report would be provided to the Medical Assessor and taken into account by him. As noted above, the Principal Member gave no indication that he considered that the plaintiff’s application under s 7.24 was incompetent.

Conclusion

101. For all these reasons, I consider that the plaintiff has established jurisdictional error and/or error of law on the face of the record in respect of the Delegate’s Decision. The Decision should be set aside and the plaintiff’s application under s 7.26 of the MAI Act should be remitted to the President for reconsideration according to law. The Insurer should pay the plaintiff’s costs of these proceedings.

102. I see no reason also to grant declaratory relief. The reasons above should provide sufficient guidance to the relevant parties.

103. In addition, the plaintiff’s application to have the Delegate’s statement of reasons set aside is misconceived. This statement of reasons has no legal effect independently of the Decision to which the reasons relate, which Decision will be set aside.

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Decision last updated: 06 February 2025