Puga v Allianz Australia Insurance Limited

[2024] NSWSC 1235

Supreme Court

New South Wales

Medium Neutral Citation:

Puga v Allianz Australia Insurance Limited [2024] NSWSC 1235

Hearing dates:

15 August 2024

Date of orders:

01/10/2024

Decision date:

02 October 2024

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The plaintiff is granted an extension of time until and including 24 March 2024.

(2) The decision of Medical Assessor Alan Home dated 1 September 2023 is affirmed.

(3) The decision of the Delegate of the President of the Personal Injury Commission of New South Wales dated 25 January 2024 is affirmed.

(4) The amended summons dated 17 April 2024 is dismissed.

(5) The plaintiff is to pay the first defendant’s cost of the proceedings.

Catchwords:

JUDICIAL REVIEW – personal injury – challenge to finding of 10% WPI – medical assessment – whether injury occurred some other time – adequate reasons – procedural fairness – causation – errors of law

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Motor Accidents Injuries Act 2017 (NSW)

Personal Injury Commission Act 2020 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AAI Limited t/a GIO v Amos [2024] NSWCA 65

Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788

Campbelltown City Council v Vegan [2006] NSWCA 284

Minister for Immigration & Ethnic Affairs v Liang [1996] 185 CLR 259

Rahman v Insurance Australia Ltd t/a NRMA Insurance [2022] NSWSC 1079

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

Wingfoot Partners Pty Ltd v Kocak [2013] 252 CLR 480

Category:

Principal judgment

Parties:

Bernardo Puga (Plaintiff)
Allianz Australia Insurance Limited (First Defendant)
The President of the Personal Injury Commission of NSW (Second Defendant)
Alan Home in his Capacity as a Medical Assessor of the Personal Injury Commission of New South Wales (Third Defendant)

Representation:

Counsel:

A. Canceri (Plaintiff)
C. Allan (Defendant)

Solicitors:

CMC Lawyers (Plaintiff)
Hall and Wilcox (Defendant)

File Number(s):

2024/00107474-1

JUDGMENT

1. This judgment involves a judicial review of a Medical Assessor and the delegate of the Personal Injury Commission involving a motor vehicle accident.

2. The plaintiff is Bernardo Puga. The plaintiff is represented by A. Canceri of counsel. The first defendant is Allianz Australia Insurance Limited (the insurer). The first defendant is represented by C. Allan of counsel. The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is Dr Alan Home, in his capacity as a Medical Assessor (the Assessor) appointed by the President under s 33 of the Personal Injury Commission Act 2020 (NSW). The second and third defendants filed submitting appearances. The parties relied on a Court Book marked Exhibit A (Ex A).

Background

3. On 16 April 2019, the plaintiff was involved in a motor vehicle accident (the accident) at a pedestrian crossing when he was struck by a motor vehicle covered by a compulsory third-party insurance policy issued by the insurer. He sustained seven injuries following the accident and brought a claim for damages. Breach of duty of care was not in issue. He was unsuccessful in the Personal Injury Commission, including upon review, because it held that his injuries stemming from the accident did not exceed the requisite 10% whole person impairment (WPI).

4. Of those injuries suffered by the plaintiff, only two are relevant in the present proceedings. They are:

1. An injury to his right shoulder; and

2. An injury to his right knee.

5. At the heart of these proceedings is whether injuries to the plaintiff’s right knee and right shoulder were attributable to the accident, in which case he would exceed the 10% WPI.

6. On 29 April 2022, the insurer wrote to the plaintiff and advised of its decision that the physical injuries he sustained as a result of the accident did not give rise to a WPI greater than 10%, with the result that the plaintiff was not entitled to claim damages for non-economic loss. It considered, based on a medical report, that the WPI was 7%.

7. On 3 May 2022, the plaintiff lodged an application for internal review of the insurer’s decision. He argued, as he maintains, that his injuries from the accident were greater than 10% WPI.

8. On 27 May 2022, the insurer issued a review decision, upholding its original decision, finding that the plaintiff’s WPI, attributable to the accident, did not exceed 10%.

9. On 9 August 2022, the plaintiff lodged an application with the President of the Personal Injury Commission for the resolution of a medical dispute in relation to a medical assessment matter; namely, whether his degree of permanent impairment resulting from his physical injuries stemming from the accident was greater than 10%.

10. The medical dispute was allocated to two assessors, firstly Dr Alan Home(Dr Home) in relation to the orthopaedic injuries, and secondly Ahamad Veerabansa (Assessor Veerabansa), (the Medical Assessors), in relation to the plaintiff’s head injury. The Medical Assessors carried out independent assessments of different physical injuries caused by the accident, that collectively amounted to a WPI calculation. The assessment in relation to the head injuries plays no role in this judicial review.

11. The Assessor issued his certificate and reasons on 1 September 2023, finding that the physical injuries caused by the accident that he considered gave rise to a permanent impairment of 9%. Assessor Veerabangsa issued his certificate on 1 December 2023, finding that the plaintiff’s brain injury caused by the accident gave rise to a permanent impairment of 1%. Assessor Veerabangsa’s finding is not disputed by the plaintiff.

12. On 4 December 2023, the Assessor issued a combined certificate under s 7.23 (8)(b) of the Motor Accident Injuries Act 2017 (NSW) (the Motor Accident Injuries Act) certifying that the combined impairment resulting from the injuries sustained in the accident was 10%, that being not greater than 10%.

13. On 15 December 2023, the plaintiff lodged an application for the review of the Medical Assessors’ combined certificate dated 4 December 2023, with respect to the Assessor’s certificate and reasons dated 1 September 2023.

14. On 25 January 2024, the second defendant’s delegate, Jeremy Lum (the delegate), refused the plaintiff’s application for review on the basis that he was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.

Extension of time

15. The plaintiff sought an extension of time to commence proceedings in relation to the Assessor’s 1 September 2023 decision. This application is not opposed. Proceedings for judicial review of a decision must be commenced within three months of the date of the decision: r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR).

16. As previously stated, the Assessor made his decision on 1 September 2023 that the plaintiff’s non-head injuries stemming from the accident gave rise to permanent impairment of 9%. The plaintiff made an application to review the decision of the Assessor. On 15 December 2023, the plaintiff filed an application to appeal this decision. This appeal was in time. On 25 January 2024 the delegate made a decision not to refer this application to the Review Panel. The plaintiff commenced this judicial review in this court.

17. The plaintiff first exhausted his review rights under the Motor Accidents Injuries Act before commencing proceedings in this Court. That approach has repeatedly been endorsed by this Court and the Court of Appeal: Findlater v Insurance Australia Ltd t/as NRMA Insurance [2020] NSWSC 1407 at [5] (Harrison AsJ); Slade v Insurance Australia t/as NRMA Insurance [2020] NSWSC 1031 at [22] per Wright J, citing Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91] to [92].

18. In accordance with r 59.10(2) of the UCPR, I grant an order extending time for commencing proceedings in this case up to and including 21 March 2024.

The summons

19. In the amended summons dated 17 April 2024, the plaintiff relevantly seeks the following relief:

1. An order in the nature of certiorari, or alternatively, an order setting aside or declaring invalid the decision of the third defendant made on 1 September 2023 in Personal Injury Commission matter number M10528587/22.

2. An order that the application for assessment of a permanent impairment dispute in Personal Injury Commission matter number M10528587/22 be remitted to the second defendant to be dealt with according to law.

3. In the alternative to orders 1 and 2, an order in the nature of certiorari, or alternatively, an order setting aside or declaring invalid the decision of the delegate of the second defendant made on 25 January 2024, rejecting the plaintiff’s application for review of the medical assessment set out in the certificate of the third defendant dated 1 September 2023 in Personal Injury Commission matter number M10528587/22.

4. Further to order 3 above, an order that the application for review of a medical assessment in Personal Injury Commission matter number M10528587/22 be remitted to the second defendant to be dealt with according to law.

20. The plaintiff’s grounds of review are as follows:

1. The third defendant erred in law in finding that the plaintiff’s right shoulder condition likely developed after the relevant motor accident, during the course of his work performing car radio installations. There was no evidence that the plaintiff had injured his right shoulder at work.

2. The third defendant did not afford the plaintiff procedural fairness before finding that the plaintiff’s right shoulder condition developed after the relevant motor vehicle accident, during the course of his work performing car radio installations.

3. The third defendant erred in finding that the plaintiff recollected first noticing right shoulder pain while installing car radios in early 2020. This was not the evidence before the third defendant.

4. The reasons given by the third defendant, in respect of his assessment of whole person impairment for the right knee injury, were inadequate.

5. The decision of the delegate that he was not satisfied that there was reasonable cause to suspect that the third defendant’s medical assessment was incorrect in a material respect was so unreasonable that no reasonable decision maker could have made that decision.

21. The fourth ground of review was not pressed at the hearing.

22. Review grounds 1, 2, 3 each deal with injury to the plaintiff’s right shoulder and the arguments raised in each review ground overlap. Review 5 deals with the plaintiff’s injury to his right knee. Review ground 6 deals with the decision of the delegate.

23. Review grounds 1, 2, 3 can be conveniently dealt with together, followed by review grounds 5 and then 6.

The relevant statutory framework

24. I shall briefly set out the relevant statutory framework of the provisions of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) at the time of the decisions under review.

25. Part 3.4 of the MAC Act provides for the medical assessment of claimants injured in a motor vehicle accident, and Part 5.3 provides for damages for economic loss. Sections 57 to 58, 60, 61, 63, 131 and 133 are relevant here. They read:

Part 3.4 Medical assessment

57 Definitions

In this Part:

medical assessment matters means any of the matters referred to in section 58.

medical assessor means a person appointed under this Part to make an assessment under this Part.

medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part.

medical dispute means a disagreement or issue to which this Part applies.

58 Application

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

(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

(b) whether any such treatment relates to the injury caused by the motor accident,

…

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

…

(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by the Commission.

…

60 Medical assessment procedures

(1) A medical dispute may be referred to the President for assessment under this Part by either party to the dispute or by a court or the Commission.

(2) The President is to arrange for the dispute to be referred to one or more medical assessors.

…

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.

(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by the Commission in respect of the claim concerned.

…

(4) 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 in the proceeding 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.

…

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter.

…

(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.

…

63 Review of medical assessment by review panel

(1) A party to a medical dispute may apply to the President to refer a medical assessment under this Part 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 only be made on the grounds that the assessment was incorrect in a material respect.

(2A) If a medical assessment under this Part (a combined certificate assessment) 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), 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.

(2B) The President is to arrange for any such application 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.

…

Part 5.3 Damages for non-economic loss

131 Impairment thresholds for award of damages for non-economic loss

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

…

133 Method of assessing degree of impairment

(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2) The assessment of the degree of permanent impairment is to be made in accordance with-

(a) Motor Accidents Medical Guidelines issued for that purpose, or

(b) if there are no such guidelines in force--the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

The relevant guidelines

26. The SIRA Motor Accident Permanent Impairment Guidelines (the Permanent Impairment Guidelines), as at 1 June 2018, made pursuant to s 44 of the MAC Act, apply to the assessment of permanent impairment disputes by virtue of s 133 of the MAC Act. The Court of Appeal has held that a failure to comply with these guidelines may constitute a constructive failure to perform a statutory duty: see Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356 (2018) 83 MVR 403 [2018] NSWCA 22 at [9], [16-22], [44], [49], [51], [56], [108].

27. The SIRA Medical Assessment Guidelines (the Medical Assessment Guidelines), as at 1 October 2008, made pursuant to s 44, apply to medical assessments conducted pursuant to the MAC Act. I shall refer to this in more detail later in this judgment.

Review Ground 1:

Did the Assessor err in his finding that the plaintiff injured his right shoulder at work?

28. In his decision dated 1 September 2023, the Assessor found that an injury to the plaintiff’s right shoulder was unrelated to the vehicle accident. In his reasons, he relevantly said:

“It is not apparent the claimant suffered injury to the right shoulder in the subject accident. There is no record of right shoulder injury in the medical file.

The claimant recalls that he first noticed right shoulder pain whilst installing car radios in early 2020, approximately 12 months post-accident.

I do not find it plausible that the claimant could injure his right shoulder and be unaware of this for 12 months.

Almost all patients with shoulder pain experience discomfort when lying on the affected side – as Mr Puga currently reports.

Therefore, I find that the right shoulder condition likely developed subsequently, during the course of his work performing car radio installation.

It is not apparent that the shoulder motion arises from his cervical spine injury as the cervical spine injury is of mild severity.

The degree of restriction of shoulder motion is consistent with local pathology at the shoulder and is not consistent with injury to the cervical spine which

would only limit shoulder motion at the extremes.

That is, I find that there is unrelated local shoulder pathology.” (CB 337).

29. In the plaintiff’s affidavit dated 27 May 2024 (the plaintiff’s affidavit) filed after the Assessor had delivered his determination (CB 395), he deposed:

1. The first time he learned that the Assessor thought that his right shoulder injury occurred in the course of his work was on 19 March 2024, when he was informed by Mia Robinson of CMC Lawyers of this fact by telephone;

2. At no time during the assessment on 29 August 2023 did the Assessor put to the plaintiff that he thought the plaintiff had injured his right shoulder at work; and

3. The plaintiff did not injure his right shoulder in the course of his work.

The plaintiff’s submissions

30. From the plaintiff’s affidavit, it follows that there was no evidence before the Assessor that the plaintiff had injured his right shoulder at work.

31. The Assessor determined, in his reasons for determination dated 1 September 2023,

“that the right shoulder condition likely developed subsequently [of the accident], during the course of his work performing car radio installation” (CB 337).

32. Properly construed, this was a finding that the plaintiff’s right shoulder condition was caused by his work performing car radio installations. However, the plaintiff did not inform the Assessor during the assessment that his right shoulder condition developed during the course of his work and therefore the finding that it did was one for which there was no evidence. A finding of fact for which there is no evidence amounts to a jurisdictional error. There can be no dispute that the finding was material to the outcome, which is necessary in order for a decision to be quashed on the basis of a no evidence finding: Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788 at [50] (Basten AJ).

The Insurer’s submissions

33. The plaintiff contends that the Assessor erred in finding the plaintiff’s right shoulder condition likely developed after the motor accident, during the course of his work performing car radio installations.

34. The Assessor’s function was as described by the Hight Court in Wingfoot Partners Pty Ltd v Kocak [2013] 252 CLR 480 (Wingfoot), to which I will refer to later in this judgment, was to form and give his own opinion on the medical question referred to him by applying his own medical experience and his own expertise.

35. The relevant question before the Assessor was whether the right shoulder injury was caused by the accident.

36. There was plenty of evidence before the Assessor to support the opinion he formed, namely that the right shoulder injury was not caused by the accident. That evidence included the absence of contemporaneous right shoulder complaints in the medical material or in the plaintiff’s Application for Personal Injury Benefits as well as the lack of radiological studies. The Assessor was also persuaded by the plaintiff’s history of developing symptoms in 2020, around a year after the accident. This was temporally connected to the commencement of his work installing car radios.

37. The plaintiff has not denied informing the Assessor that his right shoulder condition developed during the course of his work, nor has he denied informing the Assessor that his right shoulder pain developed in early to mid-2020 when he returned to car installation work.

38. Having found the right shoulder injury was not caused by the accident, it was open to the Assessor, in applying his own medical expertise and experience to go further and find that the plaintiff’s right shoulder condition likely developed subsequently, during the course of his work performing car radio installation.

39. The plaintiff further contends that the Assessor erred in finding that the plaintiff recollected first noticing right shoulder pain while installing car radios in early 2020. It is alleged that this was not the evidence before the Assessor.

40. The evidence before the Assessor was to the effect that the plaintiff first noticed right shoulder pain in 2020. This was based on the history provided by the plaintiff during his clinical examination which was consistent with the available documentation.

41. The Assessor was entitled to apply his medical expertise and experience to find that the right shoulder symptoms were not caused by the accident.

Resolution

42. At the time of the accident and in the period immediately following it, the plaintiff never complained about pain in, or injury to, his right shoulder. This was despite him receiving extensive medical treatment. I accept that the plaintiff’s right shoulder injury may not have been painful at first. However:

1. There were no complaints of right shoulder recorded in the notes of the ambulance officers who treated the plaintiff at the time of the accident (CB 324).

2. In an application for personal injury benefits dated 27 May 2019, the plaintiff listed his injuries only as including to his “…head, right wrist, right knee and right ankle…” (CB 119).

3. In a medical certificate dated 23 October 2019 the plaintiff’s injuries are listed as “Head injury, right wrist, right knee and right ankle injury” (CB 126).

4. In a medical certificate dated 16 January 2020 the plaintiff’s injuries are, once again, listed as “Head injury, right wrist, right knee and right ankle injury” (CB 132).

5. The medical notes and records of the plaintiff’s treating orthopaedic surgeon, Dr Christoper Reitz, contain no reference to any right shoulder injury (CB 257-276).

43. The only evidence placed before the Assessor of any injury to the plaintiff’s right shoulder was the medicolegal report dated 1 April 2022 that was issued by Dr Todd Gothelf, a medicolegal expert engaged by the insurer. Dr Gothelf’s report that the plaintiff’s right shoulder pain was not caused by the motor vehicle accident. In reaching this conclusion, he noted the absence of any reference to the shoulder injury in the documents outlined above, and because,

“[t]here were no investigations of the right shoulder performed, and [t]he reported pain was in the posterior region and not in the shoulder joint, suggesting a posterior muscle pain rather than shoulder pathology” (CB 316).

44. The Assessor had regard to a range of radiological and medical imaging and other investigations when assessing the plaintiff’s claim. This included various CT scans, x-rays, MRIs and ultrasounds (CB 64). The Assessor considered all the documents provided in the plaintiff’s application and reply (CB 58). At no time was any medical imaging of the plaintiff’s right shoulder placed before the Assessor to consider.

45. The plaintiff does not deny telling the Assessor that his symptoms in relation to his right shoulder developed in mid-2020, nor does he deny telling him that this coincided with his return to car installation work.

46. In these circumstances, there was sufficient evidence before the Assessor to make a finding that injury to the plaintiff’s right shoulder was not caused by the accident. That was all that the Assessor was required to find. He exercised his statutory duty as set out in s 58 of the MAC Act.

47. There was no error in the Assessor’s finding that the plaintiff did not injure his shoulder in the accident. Review Ground 1 fails.

Review Ground 2:

Was the plaintiff denied procedural fairness?

Plaintiff’s submissions

48. The Assessor did not afford the plaintiff procedural fairness before finding that the plaintiff’s right shoulder condition developed after the relevant motor accident, during the course of his work performing car radio installations.

49. The plaintiff referred to AAI Limited t/a GIO v Amos [2024] NSWCA 65 (Amos), where the Court of Appeal considered an argument by a claimant that a Review Panel constituted under the Motor Accidents Injuries Act had denied the claimant procedural fairness. The primary judge quashed the Review Panel’s decision on the basis that the claimant had been denied procedural fairness. Amos concerned a plaintiff who had suffered a fall and fractured his right orbit about a month after the motor vehicle accident. His allegation was that the fall was caused by the accident because he felt dizzy. There was an issue as to whether he suffered this particular type of vertigo and that was what caused the fall. It was suggested that the medical assessor, who was on the Review Panel, who made the decision and examined the claimant, came to the view that for various reasons the plaintiff did not have the precise symptoms of this particular form of vertigo. At first instance, Rothman J was of the view that if that was the case it was important and it required the affordance of procedural fairness. This, Rothman J held, required those particular symptoms be put to the plaintiff and he be given an opportunity to say whether or not he had suffered those symptoms.

50. On appeal in Amos, the New South Wales Court of Appeal overturned this judgment, finding that procedural fairness did not require the medical assessor to put the questions to the plaintiff in that way. It was held by Adamson JA (Kirk JA agreeing) that

“procedural fairness [in the context of a medical assessment conducted by a medical assessor or a review panel,] requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it:”

51. In Amos at [55]; applying Frost v Kouroche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985)159 CLR 550 at 587; [1985] HCA 81.

52. In Amos, Basten JA agreed with the reasons and proposed orders of Adamson JA and made observations which he said were not intended to qualify any aspect of her Honour’s reasoning at [74]. In summary, his Honour essentially observed that the statutory scheme under which a decision-maker operates determines the content of the obligation to afford the parties procedural fairness.

53. In these current proceedings, the critical issue was whether the plaintiff’s right shoulder condition was caused by the motor accident.

54. The issue of causation of the right shoulder condition was to be determined by the application of clauses 6.6 and 6.7 of the Motor Accident Guidelines (the Guidelines).

55. Clause 6.6 of the Guidelines provides:

Causation is defined in the Glossary at page 316 of the AMA4 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:

The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

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.

56. Clause 6.7 of the Guidelines provides:

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.

57. The plaintiff was aware of the insurer’s argument that his right shoulder condition was not caused by the motor accident for the reasons explained by Dr Gothelf in his report at page 8. Had the issue of causation been decided against the plaintiff by the Assessor adopting the reasoning of Dr Gothelf, there could be no complaint. However, in determining that the motor accident did not cause the plaintiff’s right shoulder condition, the Assessor made a positive finding that it was caused by the plaintiff’s work installing car radios.

58. The theory that the plaintiff had injured his right shoulder during the course of his work should have been squarely put to him for comment. The theory went to the heart of the issue.

59. Had the theory been put to the plaintiff, he would have informed the Assessor that he did not injure his right shoulder in the course of his work. The Assessor, having found that there was right shoulder pathology, the plaintiff’s answer to the suggestion that his right shoulder pathology was caused by his work would have given the Assessor serious cause to reflect upon his intended conclusion that the pathology was not caused by the motor accident. This is especially so in the context of an objectively serious motor accident which involved the plaintiff being hospitalised and diagnosed as suffering from, inter alia, a closed head injury.

60. The Assessor’s references to the “right shoulder condition” and “local shoulder pathology” (emphasis added) were references to a disease affecting the right shoulder causing a restricted range of motion.

61. There was certainly a practical injustice to the plaintiff in not being informed by the Assessor of the theory that the right shoulder condition had been caused by the plaintiff’s work. The concern of the law in relation to procedural fairness is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ); cited in Frost v Kouroche at [41].

62. The Assessor, having found that there was right shoulder pathology, would have been given serious cause to reflect upon his intended conclusion that the pathology was not caused by the accident if that conclusion had been put to the plaintiff and he had been given the opportunity to respond to it.

The insurer’s submissions

63. The plaintiff contends that the Assessor did not afford the plaintiff procedural fairness.

64. It is submitted by the plaintiff that the Assessor had a theory that the plaintiff “injured” his right shoulder during the course of his work, and procedural fairness required such a theory to be put to the plaintiff for comment.

65. The plaintiff’s submission is based on a misinterpretation of the Assessor’s reasons.

66. The Assessor did not make a positive finding that the plaintiff “injured” his right shoulder in the course of his work. The relevant finding was as follows:

“Therefore, I find that the right shoulder condition likely developed subsequently, during the course of his work performing car radio installation.” (CB 337)

67. The Assessor’s conclusion on the medical question referred to him for assessment was that the right shoulder injury was not caused by the motor accident.

68. Procedural fairness did not require the Assessor to put such a theory, if it did exist, to the plaintiff for comment. The Assessor “was not obliged to provide a running commentary of [his] thought processes or of the effect of particular answers given by the claimant in the course of questioning him”: Amos at [61] per Adamson JA.

69. In Amos, Adamson JA said, at [53], the following about the scope of procedural fairness:

“Procedural fairness depends, in part, on context. For example, in a judicial or arbitral setting, procedural fairness generally requires a hearing, whereby parties have an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent arbiter or judge. However, in the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing.”

70. Her Honour went on to cite the High Court, which said in Wingfoot at [47]:

“The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.”

[Emphasis added and footnotes omitted].

71. Basten JA held, at [91],

“the opportunity to be accorded (which was accorded) was for each party to supply material and make submissions on the basis of that material…”

72. In the present case, the plaintiff was not denied procedural fairness given that, like Mr Amos, he had the opportunity to be heard as required by law.

Resolution

73. As the plaintiff correctly noted, the words of the Assessor must be read in the context in which they were said. The Assessor found “that there [was] unrelated [to the accident] local shoulder pathology” (CB 65). Reference to shoulder pathology necessarily implied a finding of injury to the plaintiff’s shoulder. The Assessor found that the plaintiff did not injure his right shoulder in the accident. This view is reinforced by the plaintiff’s medical documentation. As set out under Review Ground 1, the medical reports obtained by the parties had put the cause of the plaintiff’s shoulder injury in issue. In other words, the plaintiff was on notice that it was going to be argued by the insurer that the injury to his shoulder was not caused by the accident. The plaintiff had the opportunity to prepare his initial statement to expressly state that his injury did not result from his work assembling car radios and his reasoning why this alternate view was incorrect, but he did not do so.

74. As I have said before, the salient issue before the Assessor was not whether the injury occurred at the plaintiff’s work or not. Rather, it was whether the injury was caused by the accident.

75. As addressed above, there was considerable evidence before the Assessor that the injury did not occur as a result of the accident. Over a period of years following the accident, the plaintiff failed to complain about any shoulder complaint.

76. It is my view that in these circumstances, the plaintiff was not denied procedural fairness. Review Ground 2 fails.

Review Ground 3:

Did the Assessor err in finding that the plaintiff recommended first noticing pain to his right shoulder while installing car radios in early 2020?

77. The earlier submissions have already covered this ground of review.

78. The Assessor’s finding that “the right shoulder condition likely developed subsequently, during the course of his work performing car radio installation”, has to be read with regard to the earlier sentences before it. The Assessor noted that there was “no record of right shoulder injury in [the plaintiff’s] medical file” and that the claimant recalled “first [noticing] right shoulder pain whilst installing car radios in early 2020, approximately 12 months post-accident.” He ultimately concluded that he did “not find it plausible that the claimant could injure his right shoulder and be unaware of this for 12 months.”

79. In these circumstances, Review Ground 3 fails.

Review Ground 5:

Was the Assessor’s reasoning in respect of the plaintiff’s WPI for the right knee injury inadequate?

80. In his reasons of 1 September 2023, the Assessor determined that the alleged injury to the plaintiff’s right knee gave rise to no WPI. The Assessor stated:

“I have used the methodology set out in AMA4, Chapter 3 and SIRA Guidelines, Section 6.68 to 6.110. There is a zero (0%) whole person impairment rating.” (CB 338).

Plaintiff’s submissions

81. In relation to the plaintiff’s right knee injury, the Assessor’s clinical testing revealed:

1. Active motion from 0 degrees extension to 140 degrees flexion;

2. Stable ligaments in the AP and lateral planes;

3. Anteromedial joint line tenderness elicited to palpation;

4. No abnormal joint crepitus;

5. No pain with Clark’s manoeuvre; that is compression of the patella against the femur did not reproduce anterior knee pain.

82. The Assessor’s reasons for assessing 0% WPI in respect of the right knee injury were terse:

“l have used the methodology set out in AMA4, Chapter 3 and SIRA Guidelines, Section 6.68 to 6.110. There is zero (0) percent whole person impairment rating.”

83. The adequacy of the Assessor’s reasons in respect of his decision concerning the plaintiff’s right knee injury depends on the statutory context and factual circumstances in which the decision is made: Wingfoot at [45]. Section 7.23(7) of the Motor Accident Injuries Act provides that a certificate is to set out the reasons for any finding as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. In the present matter, the Assessor determined the issues of causation and WPI in respect of the right knee injury. The WPI assessment affected the Assessor’s ultimate determination that the plaintiff’s total WPI did not exceed the 10% threshold.

83. The Assessor was obliged to set out in his statement of reasons the actual path of reasoning by which he arrived at the conclusion that the right knee injury was to be allocated a 0% WPI: Wingfoot at [48]. The Assessor simply says that he has used the methodology set out at AMA4, Chapter 3 and Sections 6.68 to 6.110 of the Guidelines to come up with a 0% WPI rating. The Assessor’s actual path of reasoning has not been disclosed. The Assessor should have, firstly, explained what clinical tests were administered leading to the apparent conclusion that the plaintiff’s right knee ligaments were stable in the AP and lateral planes. Secondly, the Assessor should have referred to the particular parts of Chapter 3.2 of AMA4 which were applied to come up with a 0% WPI rating.

84. In relation to the latter of the above points, it is to be noted that Chapter 3.2 contains several ways in which WPI in respect of a knee injury can be measured. It is not sufficient for the Assessor to merely say that he has used the methodology set out in Chapter 3 of AMA4 and applied the relevant part of the Guidelines. Clause 1.68 of the Guidelines notes that Chapter 3 of AMA4 is a complex section requiring an organised approach.

85. The plaintiff is entitled to know which forms of evaluation of WPI were used in his case, rather than simply being told that Chapter 3 of AMA4 was applied. Page 106 of the AMA4 (Ex B) demonstrates the inadequacy of the Assessor’s general reference to Chapter 3 of the AMA4. That page discusses the thoracolumbar spine and is totally unrelated to the plaintiff’s shoulder injury. Chapter 3 of the AMA4 is 122 pages long, dealing with the musculoskeletal assessment generally, rather than the knee specifically.

86. The reference to the SIRA guidelines was overly broad, with ss 6.68 to 6.110 spanning six pages and providing “a number of alternative methods of assessing permanent impairment involving the lower extremity” (first defendant’s list of authorities, pages 3-4). It was insufficient to merely refer to all of the causes affecting the assessment of permanent impairment in respect of the lower extremity because the actual pathway of reasoning to zero percent was not discernible to the plaintiff.

87. The reasons given by the Assessor, in respect of his assessment of whole person impairment for the right knee injury, were inadequate.

The insurer’s submissions

89. The plaintiff contends that the Assessor’s reasons concerning his assessment of the right knee were inadequate.

90. The standard of reasons is that set out in Wingfoot at [55], that is the statement of reasons must explain the actual path of reasoning by which the Assessor formed the on the medical question referred to him.

91. However, the reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Liang [1996] 185 CLR 259 at [29].

92. The Assessor’s findings of fact concerning the right knee are set out at page six of his statement of reasons. The Assessor explained that his assessment was carried out using the methodology in Chapter 3 of the AMA4 Guides and section 6.68 to 6.110 of the Guidelines. There is no error in this.

93. The reasons did not need to provide a detailed explanation of the criteria applied by the Assessor, who was a medical specialist, in reaching his professional judgment: Campbelltown City Council v Vegan [2006] NSWCA 284 at [121]-[122] per Basten JA.

94. As Basten AJ said in the context of a psychiatric assessment in Rahman v Insurance Australia Ltd t/a NRMA Insurance [2022] NSWSC 1079 (Rahman) at [49]:

“As explained in Wingfoot, the purpose of the assessor’s reasons was to identify the path by which he reached his conclusions. He did not have to provide textbook references to justify the matters he took into account, nor, for example, explain how he applied the principles set out in DSM-5. The reasons were not deficient.”

95. In this case, the Assessor’s reasons were set out with sufficient clarity for the plaintiff to determine how he reached his conclusion.

96. The Assessor recorded his observations of the plaintiff’s right knee as:

“Active motion is measured zero degrees extension to 140 degrees flexion. Ligaments are stable in AP and lateral planes. There is no anteromedial joint line tenderness elicited to palpitation. There is no abnormal joint crepitus. There is no pain with Clark’s manoeuvre, that is compression of the patella against the femur does not reproduce anterior knee pain.” (CB 62).

97. That is, the Assessor made no objective findings of disability in his examination of the plaintiff’s right knee. The Assessor concluded, in relation to the right knee, that “[t]here is a zero (0%) whole person impairment rating” based on “the methodology set out in AMA4, Chapter 3 and SIRA Guidelines, Section[s] 6.68 to 6.110” (CB 66).

98. Sections 6.68 to 6.110 deal with the assessment of permanent impairment of the lower extremity, a body area that includes the right knee. Many of these sections refer to different bases upon which to assess impairment, such as leg length discrepancy, which plainly did not apply in the plaintiff’s case when reviewing the Assessor’s reasons. Section 6.85, which directs the reader to page 78 of the AMA4 Guides, refer to “range of motion in the lower extremities,” something the Assessor explicitly tested. That page provides that the lowest form of whole person impairment – mild – involves “motion, flexion less than 110 degrees”. In this case, the Assessor recorded the plaintiff’s right knee as having 140 degrees of flexion, which means that he was well below the threshold of having even a minor impairment.

99. Thus, as can be observed, when stepping through the guidelines to which the Assessor referred, it was not hard to find how he reached his conclusion of 0% permanent impairment to the plaintiff’s right knee.

100. In this case, the reasons provided by the Assessor were not deficient. The Assessor’s reasons were set out with sufficient clarity for the plaintiff to determine how he reached his conclusion.

Resolution

101. In referring to sections 6.68 to 6.110 of the SIRA Guidelines, the Assessor was, to a degree, broad in his reasoning about how he reached the finding of 0% whole person impairment in relation to the plaintiff’s right knee. Some of those sections refer to tests for assessment of impairment that the Assessor did not use.

102. However, the sections of the SIRA Guidelines to which the Assessor referred spanned only fewer than three pages. As counsel for the insurer demonstrated, it was not difficult to follow the Assessor’s reasoning when cross-referencing those pages with the Assessor’s decision itself, which referred to the plaintiff’s range of motion.

103. While the Assessor could have been more precise in his reasoning, he did not need to be so precise. To borrow the language of Basten AJ in Rahman at [49], the Assessor “did not have to provide textbook references to justify” his decision. All that was required for the plaintiff was that his reasoning could logically be deduced.

104. In this case, the Assessor’s reasoning in relation to the right knee, and indeed generally, was not inadequate. Review Ground 5 fails.

Review Ground 6:

Was the decision of the delegate so unreasonable that no reasonable decision maker could have made it?

105. Section 7.15(3) of the Motor Accident Injuries Act provides that the President (in this case, the President’s delegate) is to arrange for the medical assessment to be referred to a Review Panel

…

(3) only if the President is satisfied that there is reasonable cause to suspect the decision determining the review was incorrect in a material respect having regard to the particulars set out in the application.

106. The test in s 7.15(3) is relevantly the same as the test in s 63 of the MAC Act. Section 63 was considered by the Court of Appeal in Meeuwissen v Boden (2010) 78 NSWLR 143; 56 MVR 453; [2010] NSWCA 253. In that case, Basten JA (Beazley JA and Sackville AJA agreeing) observed at [19]:

“First, what must be incorrect in a material respect is “the medical assessment” and not the certificate which results from the assessment. The subject matter of a medical assessment is a “medical dispute”: s 63(1). A “medical dispute” is defined to mean “a disagreement or issue to which this Part applies”: s 57. The Part applies to a disagreement about one of the matters (referred to as “medical assessment matters”) set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error.”

107. There is no complaint that the delegate did not apply the correct test.

108. On 25 January 2024, the delegate declined to refer the plaintiff’s application for review of the Assessor’s decision to the Review Panel. The delegate in his decision stated:

“I am not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. Accordingly, the review application will not be referred to a Review Panel.” (CB 391).

Plaintiff’s submissions

109. The plaintiff submitted that the decision of the delegate that he was not satisfied that there was reasonable cause to suspect that the Assessor’s medical assessment was incorrect in a material respect was so unreasonable that no reasonable decision-maker could have made that decision. This ground is raised in respect of the delegate’s decision concerning the right knee injury. The delegate decided that the Assessor was not required to explain the type of testing that was undertaken in making a finding that the right knee ligaments were stable in the AP and lateral planes. However, there was such a requirement given that there are several ligaments in a knee, as disclosed in table 64 in AMA4.

The insurer’s submissions

110. Ground 6 applies to alleged failings of the delegate. It is contended that the second defendant’s reasons were so unreasonable that no reasonable decision maker could have made that decision.

111. This ground deals only with the delegate’s decision concerning the right knee.

112. For the reasons outlined previously, it is submitted that there was no error in the Assessor’s assessment of the right knee. The plaintiff has failed to establish that the opinion of the delegate was not formed according to law.

Resolution

113. In Review Ground 5, I have already discussed why the Assessor’s reasons were not inadequate.

114. The delegate stated:

“There is no requirement that the Assessor explain the type of testing that was undertaken in making a finding that the right knee ‘Ligaments are stable in AP and lateral planes’.” (CB 320).

115. The delegate’s reasons were not so unreasonable that no reasonable decision maker could have made that decision.

116. Paragraph 97 of this judgment sets out what the Assessor specifically referred to from the Guidelines in relation to the plaintiff’s right knee injury.

117. Review Ground 6 fails.

The result

118. The judicial review fails. The plaintiff is granted an extension of time until and including 24 March 2024. The decision of the Assessor dated 1 September 2023 is affirmed. The decision of the delegate dated 25 January 2024 is affirmed. The amended summons dated 17 April 2024 is dismissed.

Costs

119. Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the first defendant’s cost of the proceedings.

120. THE COURT ORDERS THAT:

1. The plaintiff is granted an extension of time until and including 24 March 2024.

2. The decision of Medical Assessor Alan Home dated 1 September 2023 is affirmed.

3. The decision of the Delegate of the President of the Personal Injury Commission of New South Wales dated 25 January 2024 is affirmed.

4. The amended summons dated 17 April 2024 is dismissed.

5. The plaintiff is to pay the first defendant’s cost of the proceedings.

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Decision last updated: 02 October 2024