(1) The decision and certificate issued by the Review Panel in matter number 2013/02/2532 issued on 10 April 2014 is vitiated by jurisdictional error.
The Court makes an order that:
(2) An order in the nature of certiorari removing into the Court the Certificate and decision of the Review Panel dated 10 April 2014 in matter number 2013/02/2532 and quashing that decision.
The Court further orders that:
(3) Matter number 2013/02/2532 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.
(4) AAI is to pay the Mr Haris’ costs as agreed or assessed.
Catchwords:
ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 (NSW) - decision of delegate of the Proper Officer – whether there was reasonable cause to suspect that a medical assessment was incorrect in a material respect - decision of Medical Review Panel - whether incorrect test of causation applied - whether procedural fairness denied - whether futile to remit decision – whether possible to set aside only the part of the assessment affected by error
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Samir Haris v AAI Limited
Sign in free to access the full text
Details
AGLC
Samir Haris v AAI Limited [2015] NSWSC 270
Case
[2015] NSWSC 270
Decision Date
CaseChat Overview and Summary
Samir Haris has brought an action for judicial review against AAI Limited, seeking to overturn a decision of the Motor Accidents Authority (MAA) and a subsequent review by a delegate of the Proper Officer. The dispute centres on the determination of the extent of Mr Haris’ whole person impairment (WPI) following a motor vehicle accident, and the causation of his injuries. The case was heard in the Land and Environment Court of New South Wales.
The key legal issues were whether the Medical Review Panel applied the correct test of causation and whether Mr Haris was denied procedural fairness. The court also needed to determine whether it was futile to remit the decision to the Panel and whether it was possible to set aside only the part of the assessment affected by error. The Panel had concluded that there was no evidence to support an injury to the gastrointestinal system related to the accident, and as such, the WPI was assessed as 0%. However, the Panel made an alternate determination that if causation had been established, the WPI would have been 5%. The Panel found that the original Medical Assessment Service (MAS) Assessor had erred in diagnosing radiculopathy, and thus reduced the WPI to 5%.
The court held that the Review Panel did not err in its approach to causation, as the Panel correctly applied the relevant criteria and found no evidence to support the existence of radiculopathy. The court also found that Mr Haris was not denied procedural fairness, as the Panel had adequately considered the evidence and provided reasons for its decision. The court held that it was not futile to remit the decision, and that it was possible to set aside only the part of the assessment affected by error. The court remitted the matter to the Panel to reassess the WPI, taking into account the correct diagnosis of radiculopathy.
The court ordered that the decision of the Review Panel be set aside and the matter be remitted to the Panel to reassess the WPI. The court also ordered that the costs of the proceeding be paid by AAI Limited.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
So far as the abdominal injuries were concerned, the Review Panel concluded that:“There was no evidence to support an injury to the gastrointestinal system either directly or indirectly related to the motor accident.” (My emphasis added) Based on its review of the contemporaneous medical documents, the Review Panel concluded that “Nil injuries related to the motor accident”. Since causation was not established, the Review Panel assessed Mr Haris’ WPI in relation to the accident as being 0%. Under s 63(4) of the Act it revoked the certificate issued by the MAS Assessor. A new certificate was issued on 10 April 2014 declaring that Mr Haris’ WPI was not greater than 10%. The Review Panel made an alternate determination. That is, contrary to its first determination, that if causation had been established, Mr Haris’ WPI would have been 5%. It found that the MAS Assessor had erred in concluding that the symptoms Mr Haris complained of in his lower limbs amounted to radiculopathy arising from his lumbar spine injury. The Review Panel stated (at pp 6 and 7):“The second issue concerning the diagnosis of radiculopathy was examined by the panel even though it would not alter the outcome. The criteria required for a diagnosis of radiculopathy (for assessment purposes) are set out in paragraph 4.28 of the MAA Permanent Impairment Guidelines (1 October 2007). They are:To conclude that a radiculopathy is present two or more of the following signs should be found:1. Loss or asymmetry of reflexes2. Positive sciatic nerve root tension signs3. Muscle atrophy and/or decreased limb circumference4. Muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution5. Reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distributionFrom Assessor Long’s examination findings the panel noted the following:• There was no recorded loss or asymmetry of reflexes• Straight leg rising was only possible to 10 degrees bilaterally with discomfort in the posterior left and right thighs. The panel agreed that posterior thigh discomfort did not fulfil the definition of a positive nerve root tension sign.• No muscle atrophy was noted.• Muscle weakness was difficult to assess due to variable response (inconsistency).• Diminished sensation over the posterior aspect of both thighs which the panel agreed was not consistent with either an L5 or an S1 nerve root distribution.The panel concluded that even if the lumbar spine injury had been accepted that the injury would not have been assessed at greater than DRE II.” On the alternative basis, the Review Panel was of the opinion that the absence of radiculopathy put Mr Haris’ lumbar spine injury, regardless of causation, in Category DRE II, assessing it at 5% WPI rather than the 10% WPI assessed by the MAS Assessor. Mr Haris’ seeks judicial review of the Review Panel’s decision on two grounds. Firstly, that the Review Panel erred in its approach to causation under s 58(1)(d) of the Act, and secondly, that the Review Panel denied Mr Haris procedural fairness by failing to make any inquiry of him as to why there was a temporal gap in between the motor accident and when he sought medical treatment for the injuries that were allegedly caused by it.
Decision
Reasons for decision
The MAS Assessor assessed Mr Haris as having severe lumbar back pain with radiculopathy, as defined in the Guidelines. He assessed Mr Haris’ WPI as being 11%, with 10% WPI arising from the lumbar spine injury, 1% from the gastrointestinal injuries and 0% from the lower limb injuries. The MAS Assessor determined that Mr Haris physical injuries were caused by the motor accident. He set out his reasoning as follows:“6 ConclusionsDiagnosis and Causation… In spite of the congenital pars intra-articularis defects and the degenerative changes of his intervertebral discs and facet joints, there was no previous history of injury or symptoms related to his back prior to the motor accident of 27 March 2009.Following the motor accident, the claimant indicates he had low back pain, which was tolerable and he was able to work. As it increased in severity he sought help from a physiotherapist and there was a delay of months (3 August 2009) before he notified his general practitioner and then, at that stage, failed to mention the motor vehicle accident.He indicated that this delay and claim through MAA was because of his ignorance of the process (possibly because of similar ignorance he did not receive compensation and/or claim for compensation following the blinding of his left eye at a football match when a firework injured his left eye).However, based on the clear history, causation of his back pain and subsequent and increasing events affecting both legs is determined as fully attributable to the motor vehicle accident of 27 March 2009.” On 4 November 2013, the MAS Assessor issued a certificate certifying that Mr Haris’ injuries gave rise to a WPI which was greater than 10%. On 19 December 2013, AAI lodged an application for a review of the MAS Assessor’s decision which was considered by the Proper Officer’s Delegate. Pursuant to s 63(3) of the Act the Proper Officer’s Delegate was required to determine whether there was “reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application”. Mr Haris did not agree that a review was warranted and addressed the issues raised by AAI. The Proper Officer’s Delegate in her reasons for decision summarised those submissions as follows at [6] to [8]:“6 The applicant submits Assessor Long incorrectly determined that the claimant’s back problems were caused by the subject accident. The applicant refers to the fact that the claimant failed to tell his GP about the alleged cause of his back problems until 5 months after the subject accident.7 The applicant submits that the claimant did not seek further treatment for his back until June 2011 and notes that Dr Diwan records a major episode with his back in early July 2011 and there is also a report to Centrelink of a recent onset of back problems in August 2011.8 The respondent submits that the applicant’s submissions as to the alleged error in respect to causation are not correct. It is further submitted by the respondent that on the basis of the history obtained by Assessor Long, there was material and evidence from which it was open to the Assessor to reach his determination that the injuries were sustained in the subject accident.”