Owen v Motor Accidents Authority (NSW)
[2012] NSWSC 650
•22 June 2012
Supreme Court
New South Wales
Medium Neutral Citation: Owen v. Motor Accidents Authority of NSW [2012] NSWSC 650 Hearing dates: 14/5/12 Decision date: 22 June 2012 Jurisdiction: Common Law Before: S.G. Campbell J Decision: (1) Set aside the certificate issued by the Review Panel in matter no. 2010/04/3466 dated 1 November 2011; and
(2) Remit the matter to the Motor Accidents Medical Assessment Service for referral by the proper officer to a review panel constituted under s.63 Motor Accidents Compensation Act 1999 for determination according to law.
(3) The second defendant to pay the plaintiff's costs of the proceedings.
Catchwords: ADMINISTRATIVE LAW - judicial review - certiorari - error of law on the face of the record - jurisdictional error - plaintiff and defendant challenge review panel certificate issued by a medical review panel under s.63(4) Motor Accidents Compensation Act 1999 - HELD - panel asked itself the wrong question and identified the wrong issue - panel misdirected itself as to law -jurisdictional error and error of law on the face of the record established - certificate issued by review panel set aside - matter remitted to the Motor Accidents Medical Assessment Service for referral to a review panel constituted under s63 Motor Accidents Compensation Act 1999 for determination according to law. Legislation Cited: Civil Liability Act 2002 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Supreme Court Act 1970 (NSW)Cases Cited: Ackling v. QBE Insurance (Australia) Limited (2009) 75 NSWLR 482
Allianz Australia Insurance Limited v. Girgis [2011] NSWSC 1424
Allianz Australia Insurance Limited v. Kerr [2012] NSWCA 13
Allianz Australia Insurance Limited v. Sprod [2011] NSWSC 1157
Attorney -General (NSW) v. Quin (1990) 170 CLR 1
Australian Gas Light Co. v. Valuer General (1940) 40 SR (NSW) 126
Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Brown v. Lewis (2006) 65 NSWLR 587
Campbelltown City Council v. Vegan (2006) 67 NSWLR 372
Chase Oyster Bar Pty Ltd v. Hamo Industries Pty Ltd (2010) 78 NSWLR 393
Commissioner for Australian Capital Territory Revenue v. Alphaone Pty Ltd (1994) 49 FCR 576
Container Terminals Australia v. Huseyin [2008] NSWSC 320
Craig v. State of South Australia (1995) 184 CLR 163
Davis v. Council of the City of Wagga Wagga [2004] NSWCA 34
Easwaralingam v. Director of Public Prosecutions (Vic) [2010] VSCA 353
Gulic v. O'Neill [2011] NSWCA 361
Hope v. Bathurst City Council (1980) 144 CLR 1
Jabetin Pty Ltd v. Liquor Administration Board (2005) 63 NSWLR 602
Kennedy v. Australian Fisheries Management Authority (2009) 182 FCR 411
King v. Collins [2007] NSWCA 122
Kirk v. Industrial Court (NSW) (2010) 239 CLR 531
Kostas v. HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Mason v. Demasi [2009] NSWCA 227
Mastronardi v. State of New South Wales [2009] NSWSCA 270
Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors. (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v. Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212
Motor Accidents Authority of New South Wales v. Mills (2010) 78 NSWLR 125
Re. Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Rodger v. De Gelder (2012) NSWCA 167
VAW (Kurri Kurri) Pty Ltd v. Scientific Committee (2003) 58 NSWLR 631Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed. (2009) Thompson Reuters. Category: Principal judgment Parties: Mark Owen (Plaintiff)
Motor Accidents Authority of NSW (First Defendant)
Nominal Defendant (Second Defendant)Representation: D.J. Hooke S.C, with Mr. D.C. Morgan (Plaintiff)
Mr. M. A. Robinson SC (Second Defendant)
Garling Lawyers (Plaintiff)
Crown Solicitor (First Defendant)
Moray & Agnew (Second Defendant)
File Number(s): 2011/383919 Publication restriction: None
Judgment
This matter involves an application for judicial review, under s.69 Supreme Court Act 1970, of a review panel certificate issued by a medical review panel under s.63 (4) Motor Accidents Compensation Act 1999 ["the Act"].
Background Facts
The plaintiff, Mark Owen, was a volunteer fire fighter who suffered injury in a motor accident that occurred on the 24th of January 2001 whilst he was returning as a passenger, with his crew, in a fire truck from fighting a fire in the bush near Crookwell, New South Wales. The fire truck crashed into a gully.
In opening his case (5T.15) Mr. D.J. Hooke SC, who appeared with Mr. D.C. Morgan for the plaintiff, without objection from Mr. M. A. Robinson SC, for the second defendant, said:
During the course of that journey the driver of the vehicle lost control of the fire tanker and had left the roadway and went over an incline backwards at some speed and slipped down a hill before it suddenly came to rest.
That caused the collapse of some of the seating within the cabin. The plaintiff was subjected plainly to the sudden motions and sudden forces involved in that set of dynamics and then when exiting the vehicle which was at rest on its tail he fell from the vehicle to the ground landing on his hand and buttocks suffering further injury. He then had to assist in the extrication of some of his fellow volunteer fire fighters including one very large gentleman who he extracted from the cabin of the vehicle and who then proceeded to fall upon him.
There is no issue between the parties that Mr. Owen suffered some injury as a result of the motor accident. It seems to be common ground that he suffered an injury of some type to his neck and the thoracic area of his back. It is also accepted that some injury was suffered to his left shoulder. The substantial issue between the parties is whether the very significant medical condition affecting the plaintiff's low back is causally related to the motor accident. A further issue is whether he suffered a permanent injury to his left shoulder.
It is common ground that Mr. Owen in recent times has undergone a surgical spinal fusion of some of the vertebrae in his low back, I infer in the region of L4/5. Mr. Robinson made a concession on this point (57T.40). Mr. Robinson pointed out that this is why the second defendant pushed for a decision on causation (57T.50).
There seems to be no dispute that a spinal fusion entitles the plaintiff to be assessed as DRE IV in table 4.1 to the permanent impairment guidelines called the MAA Permanent Impairment Guidelines (see also page 28, 4.34). This being so, the plaintiff's degree of permanent impairment for the purpose of s.131 of the Act will be assessed at greater than 10 per cent, entitling him to damages for non economic loss, but only if the permanent impairment is a result of the injury caused by the motor accident.
It is also common ground that the plaintiff had pre-existing difficulties with his back: See Exhibit B [7] - [16]; Exhibit A page 8.2.
The plaintiff also claims an injury to his left shoulder of a permanent nature resulting from the motor accident. At Exhibit B [17] he acknowledged previous left shoulder pain, but not continuing at the time of the accident.
His case is that the neck, thoracic back, low back and left shoulder conditions are all related to the motor accident, the low back by way of significant and continuing aggravation.
The defendant disputes the connection with the accident of the low back and left shoulder conditions.
Statutory Provisions
The medical guidelines to which I have referred are issued pursuant to s.44 of the Act. By that section they are delegated legislation. Part 3.4 of the Act is entitled 'Medical assessment', and makes detailed provisions for the resolution of disagreements between a claimant and an insurer about medical assessment matters: s.58. For this purpose s.57A establishes a unit ... known as the Motor Accidents Medical Assessment Service [MAS]. MAS consists in part of medical assessors who are medical practitioners and other suitably qualified persons: s.59. It was in this statutory context that Johnson J referred to the process as medical assessment by expert medical practitioners: see Ackling v. QBE Insurance(Australia) Limited (2009) 75 NSWLR 482 at 498.
The relevant medical matter, the subject of the present dispute between the parties, is that identified by s.58(1)(d), namely, 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%.
As is obvious from the statutory language, the matter to be assessed included questions of legal causation connoted by the phrases: as a result of; and caused by: Motor Accidents Authority of NSW v. Mills (2010) 78 NSWLR 125; Ackling at 498.
Medical assessments are to be carried out in accordance with the relevant provisions of MAA medical guidelines: s.65(1).
In the first instance a medical assessor, and on review, a review panel of medical assessors, is required to provide a certificate as to the matters referred for assessment: s.61(1); s.63(4) and (5). And a certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matters certified in the certificate in respect of which the certificate is conclusive evidence: s.61(9).
By dint of s.61(2), any ... certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
Section 63 sets out the procedure for a review of a single assessor's medical assessment by a review panel. The detailed provisions need not be set out here because it is common ground that following a medical assessment by Assessor Scott Harbison, dated 4 April 2011 (Exhibit A page 2.3) both parties applied for a review, but each for a different reason. The only available ground is that the assessment was incorrect in a material respect (s.63(2)). In this regard the claimant sought a review of Assessor Harbison's assessment of permanent impairment, and the insurer sought a review of Assessor Harbison's assessment of causation of the injury of the lumbo-sacral spine: (page 3.5 Exhibit "A")
The Review Panel
In its certificate dated 1 November 2011 (Ex A pp1-2), the Review Panel revoked the Certificate of Assessor Harbison of 11 April 2011 (pursuant to s.63(4)), and issued a new certificate determining that:
The following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:
Cervical Spine - strain
Thoracic spine - strain
Although the injuries to these parts of the body were assessed as permanent, in accordance with the guideline, the degree of permanent impairment of each was zero percent.
The Review Panel conferred by telephone on two occasions. First, on 24 August 2011 (Exhibit A page 2.5) and again on 20 October 2011 (Exhibit A page 5.2).
The deliberations of the Review Panel at its first tele-conference are summarised at Exhibit A page 4 in the following way:
The Panel noted that the following injuries were referred to Assessor Harbison for assessment:
.Cervical spine - strain
.Thoracic spine - strain
.Lumbar spine - disc injury, aggravation of pre-existing degenerative disease.
.Left shoulder - impingement.
The Panel initially discussed the causal relationship of the claimed injuries to the subject accident.
The Panel could find no contemporaneous medical evidence in the documentation provided to indicate that an injury to the lumbar spine and an injury to the left shoulder were sustained at the time of the subject accident. The Panel noted however that the Crookwell Hospital records and Goulburn Hospital records had not been made available with the documentation provided. The Panel also noted that there were no contemporaneous clinical records of the injured person's general practitioner and that the first reference to any contemporaneous medical information was contained in a medico-legal report of a neurosurgeon, Dr. K Nadana Chandran, who indicated in a report dated 18/02/03 that the injured person was first seen at the request of his general practitioner on 22/6/01, some five months after the subject accident.
The Panel noted that the records of the injured person's treating physiotherapist, Ms. Lorna Vallely of Crookwell Physiotherapy Centre, indicated that when seen on 30/01/01, that is six days after the subject accident, he reported having neck and upper thoracic back pain but no reference was made to any lower back symptoms or left shoulder symptoms. A letter of Ms. Vallely to his general practitioner dated 27/02/01, some four weeks after physiotherapy commenced, again referred only to neck and thoracic spine symptoms but made no reference to the lumbo-sacral spine or left shoulder.
The Panel concluded that the available contemporaneous evidence indicated that injuries to the cervical spine and thoracic spine were sustained at the time of the subject accident.
The Panel called upon the parties to provide further information to assist in its deliberations, which was provided. This material is detailed under the heading Additional Evidence on page 5 of Exhibit A. The material included an undated, but signed statement of the plaintiff: Exhibit B. At Exhibit A page 6, the panel states:
The Panel reviewed all the available medical evidence including the additional documentation made available subsequent to the initial teleconference. The panel also considered the submissions made by both parties. [My emphasis]
From this I infer that there is force in the plaintiff's argument that the Review Panel does not seem to have considered the statement of the plaintiff, a topic to which I will return.
It is unnecessary to consider the Panel's reasons in relation to the cervical and thoracic spines. The manner in which those matters were dealt with was not called into question before me.
It is important to set out in full the reasons provided in respect of the lumbar spine and the left shoulder. What appears below is taken from pages 7 - 9 of Exhibit A:
Lumbar spine - disc injury, aggravation of pre-existing degenerative disease.
The Panel noted that the documentation considered at the time of the initial teleconference and the additional documentation provided subsequent to the initial teleconference had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident.
In arriving at this conclusion the panel took into account the absence of any reference to a lumbar spine injury in the following contemporaneous documentation:
-The Crookwell Hospital records dated 25/01/01 which included the Triage Nurse's report which referred to symptoms in the neck and the spine between the shoulder blades but made no reference to the lumbar spine.
-The Crookwell Hospital report of Dr. Thangavelu dated 25/01/01 which referred to neck pain and mid-thoracic spine pain and tenderness but made no reference to the lumbar spine.
-An x-ray request form dated 25/01/01 which included the following clinical note: 'MVA - Firetruck ran into a river... Complains of pain in the neck and mid thoracic spine'.
-The clinical reports of Ms. Lorna Vallely of Crookwell Physiotherapy Centre, the injured person's treating physiotherapist, dated 30/01/01 which indicated that when seen on 30/01/01, that is six days after the subject accident, there was complaint of neck and upper thoracic back pain but no reference was made to any lower back symptoms. A diagram depicting the distribution of the reported symptoms indicated the neck and thoracic spine but did not include the lumbar spine.
- A letter of Ms. Vallely to his general practitioner dated 27/02/01, some four weeks after physiotherapy commenced, again referred only to neck and thoracic spine symptoms but made no reference to the lumbar spine.
- Dr. Thangavelu's contemporaneous clinical records did not make any reference to a lower back injury. A note dated 08/02/01 referred to a neck injury. A note dated 28/02/01 referred to symptoms in relation to the neck and mid-back. A note dated 3/04/01 indicated that he complained of radiating pain down his arms (but was considered to be fit for full duties). The panel noted that the first reference to the lower back was an entry dated 18/09/01 (some eight months after the subject accident) which stated: 'W/C Neck Lower Back Injury'.
The Panel noted that Dr. Thangavelu's clinical notes made reference to a back injury sustained at work in 1982; reference to inters-scapular pain in 1993; reference to a back injury at work in 1996 with further reference to lower back symptoms in 1997, 1998 and 1999. A medical certificate dated 23/06/97 reported that '... He suffers from a lumbar disc prolapse of L4-L5. Heavy lifting and bending down should be avoided.
The panel concluded that the lumbar spine injury was not causually related to the subject accident and that it was therefore not relevant to assess the impairment relating to the Lumbar Spine. This conclusion was reached with reference to the MAA Guidelines Clause 1.7 (page 2) which indicates that 'The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident [the panel's emphasis]. A determination as to whether the claimant's symptoms and impairment related to the accident in question is therefore implied in all such assessments'.
Left shoulder - impingement
The Panel noted that the documentation considered at the time of the initial teleconference had not provided any evidence to indicate that the claimed left shoulder injury was causally related to the subject accident.
The panel considered the additional evidence in the documentation provided since the initial teleconference and noted that The Crookwell Hospital report of Dr. Thangavelu dated 25/01/01 referred to 'left shoulder tenderness'. The panel noted however that there was no further reference to a left shoulder injury in any of the contemporaneous medical documentation until 2/11/01 (some nine months after the subject accident) when reference was made to a left shoulder rotator cuff injury. The panel concluded that the single contemporaneous reference to 'left shoulder tenderness' did not constitute evidence of an injury to the left shoulder that was 'more than negligible' and that it would therefore be appropriate to conclude that a left shoulder injury was not causally related to the subject accident. In this regard the panel took into account the MAA Guidelines Clause 1.9 (page 2) which states that: 'There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible'.
In arriving at the conclusion that a left shoulder injury sustained at the time the subject accident was not 'more than negligible' the panel took into account the absence of any reference to a left shoulder injury in the following contemporaneous documentation:
-The Crookwell Hospital records dated 25/01/01 which included the Triage Nurse's report which referred to symptoms in the neck and the spine between the shoulder blades but made no reference to a left shoulder injury.
-An x-ray request form dated 25/01/01 which included the following clinical note: 'MVA - Firetruck ran into a river ... Complains of pain in the neck and mid thoracic spine.' There was no reference to a left shoulder injury.
-The clinical records of Ms. Lorna Vallely of Crookwell Physiotherapy Centre dated 30/01/01 which indicated that when seen on 30/01/01 there was no reference to any left shoulder symptoms.
-A letter of Ms. Vallely to his general practitioner dated 27/02/01, some four weeks after physiotherapy commenced, which referred to neck and thoracic spine symptoms but made no reference to the left shoulder.
-Dr. Thangavelu's contemporaneous clinical records which did not make any reference to a left shoulder injury.
The panel concluded that as a left shoulder injury was not causally related to the subject accident it was therefore not relevant to assess the impairment relating to the left shoulder. This conclusion took into account the MAA Guidelines Clause 1.7 (page 2) referred to above.
The relevant MAA Guidelines referred to in the long extract above are the guidelines for the assessment for the degree of permanent impairment, which commenced on the 1st of October 2007. At page 2 [1.7] - [1.9] guidance is provided as to the assessment of questions of causation in the following terms:
Causation of Injury
1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor)in considering such issues.
1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: 'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following.
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This therefore involves a medical decision and a non-medical informed judgement.
1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.
Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p. 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s.5 D. (See s.3B(2)).
The Plaintiff's Case
Mr. Hooke recognised the limited scope and restricted availability of the relief sought, which was an order in the nature of certiorari. As I understood the argument advanced before me there was no tendency to stray, impermissibly, into the error of inviting "merits review". To adopt the language of Mr. Robinson from his written submission (page 7 [21]) there was a keen awareness on both sides of the record that legality must be the issue and not the merits of the particular application or proceeding below.
Mr. Hooke advanced two separate bases for the relief sought:
(1) Jurisdictional error consisting of a failure to take into account all relevant material; and
(2) Error of law on the face of the record consisting of either:
(a) An erroneous finding of "no evidence"; or
(b) A misdirection or asking of the wrong question; or
(c) A failure to provide adequate reasons.
Allianz Australia Insurance Limited v. Kerr
The material that had been before Assessor Harbison and the Review Panel filled three binders annexed to an affidavit of the plaintiff's solicitor. Mr. Robinson objected to the whole of that material being admitted into evidence, relying upon the judgment of Basten JA in Allianz Australia Insurance Limited v. Kerr [2012] NSWCA 13 at [13] - [20]. Mr. Robinson relied in particular upon the following:
[15] ... whilst jurisdictional error may be established by any admissible evidence relevant for that purpose, a quashing order based on the broader concept of error of law must identify the relevant error as appearing "on the face of the record".
And after referring to Craig v. State of South Australia (1995) 184 CLR 163 at 181; and the subsequent amendment of s.69 adding ss. (3) and (4) Basten JA said:
[18]It follows that, in the present proceedings, it was appropriate for the reviewing Court to consider not only the certificate given by the claims assessor, but also his statement of reasons. It was less clear, however, whether the Court might properly accept as evidence and scrutinise the reports of medical and other experts and the submissions made by the parties before the assessor. In the present case, such material was admitted by the primary judge, apparently without objection. Nevertheless, if the limits of this Court's jurisdiction preclude it taking such material into account for a particular purpose, it should not do so.
Accordingly, the parties took a disciplined approach; the three volumes were not received in evidence, but rather a bundle of documents, including the certificate, were admitted marked Exhibits "A", "B", "C", "D", "E", "F", "G", "H", "J", and "K".
Discussion Of Applicable Law
It must be well borne in mind that the purpose of medical assessment under part 3.4 of the Act is to conclusively resolve the medical assessment matter. The present case concerns the certificate of a review panel. Section 63 provides for merits review on the ground that the assessment of a single assessor was incorrect in a material respect.
This review takes place only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect (s63(3)). However, the Review Panel is not limited but is required to undertake a new assessment of all the matters with which the medical assessment is concerned (s63(3A)).
In the present case, the medical assessment matter is determinative of the plaintiff's entitlement to claim damages for non-economic loss: s.131 and s.132 of the Act.
It should also be emphasised that the certificate is conclusive evidence for that purpose only: Allianz Australia Insurance Limited v. Girgis [2011] NSWSC 1424; Rodger v. De Gelder [2012] NSWCA 167 at [9]; Brown v. Lewis (2006) 65 NSWLR 587 at 592 [23]; Motor Accidents Authority of New South Wales v. Mills (2010) 78 NSWLR 125 at 135 [57] - 137 [69]; 141 [91] and 142 [102].
I re-emphasise that in the case of a disagreement (s.58(1) of the Act) or a dispute (s.132(1) of the Act), the matter must be assessed by a medical assessor, and, as stated, the certificate is conclusive evidence.
Whether or not one concludes a medical assessor, or here the review panel, has a duty to act judicially, it is enough that the review panel was exercising a public power conferred by statute for it's determinations to be in principle amenable to orders in the nature of certiorari (see Chase Oyster Bar Pty Ltd v. Hamo Industries Pty Ltd (2010) 78 NSWLR 393).
On the other hand, for the purpose of identifying what may constitute jurisdictional error, it is important to observe that the Review Panel is not a court, but is rather an administrative tribunal: Craig at 176 - 180; Re. Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [141] to [163]; Minister for Immigration and Multicultural Affairs v. Yusuf (2001) 206 CLR 323 at 351 [82]; Kirk v. Industrial Court (NSW) (2010) 239 CLR 531 at 571 [66] - 573 [70]. Accordingly, the test expressed in Craig at 179, broadly defining jurisdictional error of law, applies.
In some Australian jurisdictions the width of the applicable principle may have rendered the distinction between jurisdictional errors and errors of law on the face of the record otiose. Section 69(3) and (4) Supreme Court Act 1970 maintain the vitality of the category of error of law on the face of the record in this jurisdiction.
There is no necessary dichotomy between jurisdictional error, on the one hand, and error of law on the face of the record, on the other: the same error may satisfy both descriptions: Kirk at 566 [55]. Although a conclusion that jurisdictional error is shown makes consideration of whether there is an error of law on the face of the record superfluous: Kirk at 575 [78]. The subsequent discussion in Kirk explains that the continued vitality of the category of error of law on the face of the record depends not only upon the provisions of s.69(3) and (4), but also upon constitutional considerations (Kirk 575 [78] - 578 [89]). Naturally an error of law on the face of the record needs to be dispositive before certiorari will lie: Jabetin Pty Ltd v. Liquor Administration Board (2005) 63 NSWLR 602 at 615 [28]; Ackling at 492 [43]. There is no privative provision to take non-jurisdictional error of law on the face of the record out of play in the present case: Kirk at 581 [100].
Disposition
It is worthwhile setting out in full 351[82] of Yusuf:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v. South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it".
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
The failure to take into account a relevant consideration is, of course, a ground of judicial review for jurisdictional error. As McHugh, Gummow and Hayne JJ pointed out in Yusuf p. 348 [74], by reference to Attorney -General (NSW) v. Quin (1990) 170 CLR 1 at 35 - 36 per Brennan J, the ground is essentially concerned with whether the decision maker has properly applied the law, and not ... with the process of making the particular findings of fact upon which the decision-maker acts. As Mr. Robinson pointed out in argument by reference to Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors. (1986) 162 CLR 24 at 39 - 42 per Mason J, the ground is only made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision (emphasis in the original). Doubtless this is why the plurality in Yusuf laid emphasis on the question of whether the law had properly been applied.
I am certainly persuaded that the Review Panel failed to take into account material that was relevant in determining the connection between the condition of the plaintiff's low back and the motor accident. Although the Review Panel acknowledged receiving Exhibit B, Mr. Owen's statement, (page 5, Exhibit A) no reference was made to it. I infer from pages 7 and 8 of Exhibit A that the contents of Exhibit B were not taken into account by the Review Panel in making its decision about the lumbar spine-disc injury: Yusuf at 338[34] - [37] per Gaudron J; 346[69] per McHugh, Gummow and Hayne JJ.
The contents of the statement in Ex B were material and therefore relevant, especially page 2[16] - [23]. For example, at [21] - [22], the plaintiff said:
[21] Immediately after the accident, I felt pain in my neck, mid back and to a lesser extent my low back and left shoulder. The pain was most severe in my neck and upper back and radiated into my shoulders and I had some arm pain. The point of the left shoulder was also painful. I did have low back pain from the time of the accident and pain to my left hip. I had pain mainly down the whole of the left side of my body.
[22] The initial treatment was to my neck and upper back as this is where I was experiencing the most pain and the doctors seemed much more concerned my neck injury rather than my low back or left shoulder injury. I was told by a doctor at Goulburn Hospital that they were more concerned about neck injury as this could leave me a quadriplegic. I did however also have low back pain and left shoulder pain which gradually worsened and became more prominent once my neck pain improved slightly.
Further, the Panel did not make any reference to the following:
(a)Exhibit F is the clinical notes of Lorna Vallely, physiotherapist who treated the plaintiff following the accident. From 3 April 2001 her clinical notes refer to an aggravation of an injury to the lumbar spine region and low back pain, which by inference she relates to the motor accident. From about this time the focus of the record of complaints relate to low back pain or lumbar spine;
(b)Exhibit K comprises physiotherapy plans prepared by Ms. Vallely related to the plaintiff's claim for workers' compensation arising out of the motor accident. On the plan dated 15 June 2001, she refers, inter alia, to a lumbar spine injury consisting of an aggravation of existing L/S problem.
(c)Exhibit G is a report of Dr. K.N. Chandran, Neurosurgeon, dated 22 June 2001. On that date, that specialist received complaints, inter alia, of back pain since the accident down the left leg and numbness in the toes. An MRI scan of the lumbar spine showed dehydration of the L4/5 disc and a possible need for lumbar fusion or disc replacement was propounded. Mr. Owen was referred to the specialist by his GP, Dr. Thangavelu. It should be acknowledged that reference to this report appears on p4 of Exhibit "A" (see [21] hereof).
(d)Exhibit J is a report prepared for WorkCover by Mr. Gordon Stewart, Consultant Neurosurgeon, dated 13 June 2001. He received a past history of lower back injury and also the onset of low back pain within five minutes of the motor accident. The specialist reviewed radiological investigations pre-dating and post-dating the motor accident. He diagnosed musculo-skeletal soft tissue injury. He did not mention where, but in context the diagnosis extended to the low back. He said:
I considered the contribution to be entirely due to the accident.
The Review Panel failed to consider any of this material which supported the inference that the condition of the plaintiff's low back was caused or materially contributed to by the motor accident. From the heading to that part of their decision which deals with the lumbar spine, it seems that the Review Panel identified as an issue the possibility of a back injury consisting of aggravation of pre-existing degenerative disease. The material referred to at the top of page 8 suggests the same thing.
Whether the Review Panel was bound to consider the material I have referred to depends in the end upon a construction of the relevant sections of the Act which I have set out above. The function and purpose of medical assessment is to resolve disagreements or disputes about medical assessment matters including, as in this case, a matter that governs the entitlement of a claimant to damages for non-economic loss. One would conclude a duty to act judicially and a corresponding obligation to consider all relevant evidence and arguments advanced by the parties in making its decision.
However that may be, one needs to bear in mind the observation of Tate JA in Easwaralingam v. Director of Public Prosecutions (Vic) [2010] VSCA 353 at [25]:
...an application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior Court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked.
This statement reflects what was said in Craig [181], discussed in Kirk at 577[83] - 578[87].
Even if the decision maker is not bound to take the relevant material into account, the failure to do so may evince jurisdictional error of the kind discussed in the passage cited above from Yusuf. As it was put by the plurality, the different kinds of error may well overlap. In my judgment, that phenomenon has occurred here. It seems to me that the Review Panel's treatment of the issue concerning the low back injury demonstrates that it asked itself the wrong question or identified the wrong issue. Moreover the overlapping errors fall into both categories of jurisdictional error and error on the face of the record.
The statement of the Review Panel that the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident is only explicable on the basis that the panel misdirected itself as to law. As the extract from Clause 1.9 of the MAA Guidelines set out at page 8 of Exhibit A makes clear - albeit in the context of the left shoulder - in general terms (subject to 5D Civil Liability Act 2002) it is sufficient if the injury ... was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The absence of a reference by the Review Panel to this important matter suggests that in relation to the back, it did not direct itself as to the law as required. This impression is reinforced by the emphasis the Panel placed upon the construct as a result of the injury caused by the motor accident at the top of page 8. The emphasised language suggests to me that the panel of experts, as legal laymen, looked to a more direct or proximate relationship than that mandated by the relevant legal principles.
This impression is reinforced by the consideration that the Panel, in concluding that there was no evidence to support the relevant causal relationship, took into account, and apparently only, the absence of any reference to a lumbar spine injury in contemporaneous medical records, within about a month of the motor accident.
Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the Review Panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v. Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]). The medical histories were taken in furtherance of a purpose which is not identical with the purpose of resolving the medical assessment matter before the Review Panel: Container Terminals Australia v. Huseyin [2008] NSWCA 320 at [8]; Mason v. Demasi [2009] NSWCA 227 at [2] and Gulic v. O'Neill [2011] NSWCA 361 at [24]. These statements were made in the context of the exercise by the Court of Appeal of its powers of rehearing pursuant to s.75A Supreme Court Act 1970. But they are apposite to the exercise by the Review Panel of its powers under s.63 of the Act, especially subs. (3A). In my judgment the identification of this wrong issue was jurisdictional error.
Another point raised in argument concerned the Review Panel giving primacy to the contents of the contemporaneous documentation. As I have said, in his statement and in other material before the Review Panel, the plaintiff, whilst acknowledging the pre-existing problems with his back, said he injured it again in the motor accident. If the Review Panel used the material to contradict or discredit him, he ought to have been given the opportunity to explain it: Mastronardi v. State of New South Wales [2009] NSWSCA 270 at [87]; King v. Collins [2007] NSWCA 122 at [35]. Again, although these observations were made in the context of an appeal by way of rehearing from a court of ordinary jurisdiction, this same aspect of the principles of natural justice may apply, with contextual variation, to the Review Panel. Although there is no hearing as such, nor even a need for the Review Panel to examine the claimant again, its core function, in a sense, is adversarial. It is called on, as I have said, to settle disagreements or disputes about medical assessment matters between a claimant and an insurer. From page 4 of Exhibit A, it is clear that the Review Panel indicated to the parties, including the plaintiff, that it was inclined to the view that the available evidence failed to confirm that injuries to the lumbo-sacral spine and left shoulder were causally related to the subject accident and to invite them to make submissions in this regard. There is no suggestion in the reasons that the Review Panel "disbelieved" the plaintiff. What occurred probably sufficed: Commissioner for Australian Capital Territory Revenue v. Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. No jurisdictional error occurred on this ground.
To recapitulate, the Review Panel said: that the documentation ... had not provided any evidence of a connection between the lumbar spine injury and the motor accident. The question [w]hether there was no evidence to support a factual finding is a question of law, not a question of fact: Kostas v. HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418[91]. The Plurality went on:
A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law.
For what it is worth, although this argument was put as an error of law on the face of the record, if it is made good it will clearly constitute jurisdictional error of a type that can be established by use of other evidence. But can the point be made good? The Review Panel did not make a finding, rather it declined to make a finding of causal relationship. In other words, by reference to the limited material it considered relevant, the Review Panel simply was not persuaded that a causal relationship had been established: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed. (2009) at p210[4.115] and 260[4.380]. No relevant error has been shown.
In relation to the left shoulder issue, the reasons for which are set out on pages 8 - 9 of Exhibit A, in my judgment, the same jurisdictional error of identifying a wrong issue and asking a wrong question is established. The Review Panel took the same approach of looking for references to a left shoulder injury in what it regarded as contemporaneous documentation, and treating the absence of any reference as decisive, rather than simply as - perhaps important - countervailing material. In the case of the left shoulder, the Review Panel expressly referred to the extended idea of causation set out in clause 1.9 of the MAA Guidelines. However, it concluded that a single contemporaneous reference to "left shoulder tenderness" did not constitute evidence of an injury to the left shoulder that was "more than negligible".
To my mind, additionally, this falls into Glass J.A.'s third category of error in Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157. That is, the Review Panel have erroneously held that the test laid down in the guideline is not satisfied as a matter of law, because no other application is reasonably open. (See also Hope v. Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co. v. Valuer General (1940) 40 SR (NSW) 126 at 138).
In my judgment there has been no failure on the part of the Review Panel to provide adequate reasons. As Mr. Robinson correctly argued, the Review Panel had an explicit statutory obligation to provide reasons: s.61(9); clause 16.24 of the Medical Assessment Guidelines. Accordingly, an analysis of the type undertaken in Campbelltown City Council v. Vegan (2006) 67 NSWLR 372, urged upon the Court by the plaintiff, was not called for.
Further, as Mr. Robinson argued, the obligation to give reasons is not coextensive with those required of a court of ordinary jurisdiction, subject to an appeal by way of rehearing to the Court of Appeal. Although the statutory context is different, the observations in Yusuf at page 346[68] are equally apposite. Section 61(9) requires no more than the certificate set out the reasons for any finding that the Review Panel did make and this, the Review Panel clearly did. The reasons actually expressed are clear: Allianz Australia Insurance Limited v. Sprod [2011] NSWSC 1157 at [58]. As Mr. Robinson argues, in any event, other problems may arise in relation to the reasons ground:
(a)It is not clear that the failure to provide reasons is always an error of law: VAW (Kurri Kurri) Pty Ltd v. Scientific Committee (2003) 58 NSWLR 631 at [94] - [116] per Beazley JA;
(b)There may be an important distinction between reasons on the one hand, and the reviewable decision on the other: Kennedy v. Australian Fisheries Management Authority (2009) 182 FCR 411 at [55] - [65]. That case, however, was in the Federal jurisdiction. Given that reasons form part of the record for the purpose of s.69(3), (4) Supreme Court Act 1970 the same approach does not obviously apply in State jurisdiction: Vegan at 399 [130];
(c)In any event, the natural remedy for the failure to observe a statutory obligation to provide reasons is an order in the nature of mandamus, not certiorari, and such relief was not sought: Re. Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [57] per Kirby J and [41] per Gleeson CJ, Gummow and Heydon JJ.
If successful, the plaintiff sought remitter to a differently constituted Review Panel. The second defendant, in that event, seeks remitter to the same Review Panel. I do not consider it appropriate to make any order as to the constitution of the Review Panel who will determine the review according to law. It is appropriate rather to leave this to the ordinary administrative arrangements operating within the Motor Accidents Medical Assessment Service.
My orders are:
1.Set aside the certificate issued by the Review Panel in matter no. 2010/04/3466 dated 1 November 2011; and
2.Remit the matter to the Motor Accidents Medical Assessment Service for referral by the proper officer to a review panel constituted under s.63 Motor Accidents Compensation Act 1999 for determination according to law.
3.The second defendant to pay the plaintiff's costs of the proceedings.
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Decision last updated: 22 June 2012
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