Transport Accident Commission of Victoria v Motor Accidents Authority of NSW

[2009] NSWSC 940

CITATION:	Transport Accident Commission of Victoria v Motor Accidents Authority of NSW & Ors [2009] NSWSC 940
HEARING DATE(S):	5/08/09
JUDGMENT DATE :	11 September 2009
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 38
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Supreme Court Act 1970
CASES CITED:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Public Service Board v Osmond (1985-1986) 159 CLR 656 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 Allianz Australia Insurance v Crazzi [2006] 68 NSWLR 266 Craig v South Australia (1995) 184 CLR 163
PARTIES:	Transport Accident Commission of Victoria - Plaintiff Motor Accidents Authority of NSW - First Defendant The Proper Officer of the Motor Accidents Authority of NSW - Second Defendant Vladimir Karanfilovski - Third Defendant
FILE NUMBER(S):	SC 30015 of 2009
COUNSEL:	Mr J Turnbull- Plaintiff Mr C Jackson - Third Defendant
SOLICITORS:	Carroll & O'Dea - Plaintiff Crown Solicitor's Office - First Defendant and Second Defendants Martin Bell & Co - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Administrative Law List

Patten AJ

11 September 2009

No: 30015 of 2009

Transport Accident Commission of Victoria
v
Motor Accidents Authority of NSW & Ors

JUDGMENT

1 The Second Amended Summons herein seeks to invoke the jurisdiction of the court provided for by s69 of the Supreme Court Act in respect of a decision of the Motor Accidents Authority of NSW (the Authority) taken by the Second Defendant (the Proper Officer).

2 Both the Authority and the Proper Officer entered submitting appearances save as to costs. The third Defendant (Mr Karanfilovski) appeared by counsel Mr C Jackson. The Plaintiff was represented by Mr J Turnbull.

3 The Plaintiff seeks an order setting aside the dismissal by the Proper Officer on 14 January 2009 of its application for a further medical assessment, and consequential relief. It is contended that the dismissal revealed an error of law within s69 (3) of the Supreme Court Act, namely that the Proper Officer ignored relevant material or identified a wrong issue. It is submitted that the case falls within the principles stated in Craig v South Australia (1995) 184 CLR 163 where the High Court at page 179 said:

“If such an administrative 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.”

4 Having regard to the nature of the jurisdictional error asserted it will be necessary to make some reference to the facts of the case. Before doing so, however, it is appropriate to say something about the relevant legislative framework which is contained in the Motor Accidents Compensation Act (the Act).

5 A person (the claimant) wishing to claim damages for death or injury caused by the fault of the owner or driver of a motor vehicle must proceed in accordance with the Act. In particular, the claimant is required to give early notification of the accident to police and the relevant insurer. There is provision in the Act for acceptance of provisional liability by the insurer, and there is provision for preliminary payment of medical and treatment expenses. Part 3.4 of Chapter 3 provides for the establishment of a Motor Accidents Medical Assessment Service (MAS) and applies to a disagreement about “medical assessment matters”, namely any of the following:

“(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%. “

6 Section 58 provides for the appointment of medical assessors and s 60 for the reference by the Authority to a medical assessor or assessors of a medical dispute.

7 Section 61 relevantly to this case provides for the status of medical assessments:

“61
(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 a claims assessor 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 to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party .
(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.
(11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error. “

8 Section 62 provides for further medical assessments:

“62

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

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

(b) by a court or claims assessor .

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

(1B) Referral of a matter under this section is to be by referral to the officer of the Authority designated by the Authority for the purpose (in this Part referred to as the "proper officer of the Authority").

(2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. “

9 A party to a medical dispute may apply to the Proper Officer of the Authority to refer a medical assessment to a review panel under s63 which relevantly provides:

“63

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors 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.
………………………..
(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors , but only if the proper officer 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.

(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.
(4) The review panel may confirm the certificate of assessment of the single medical assessor , or revoke that certificate and issue a new certificate as to the matters concerned.
……………………………….
(6) Section 61 applies to any new certificate or new combined certificate issued under this section. “

10 In the context of these reasons, it is necessary to refer only to three other provisions of the Act, namely s 65(1) which stipulates that medical assessments are subject to guidelines known as MAA Medical Guidelines, section 131 which provides that no damages may be awarded for non economic loss unless the degree of permanent impairment caused by the accident is greater than 10% and section 132 which, in effect, requires that disputes as to the degree of permanent impairment must be resolved by a medical assessment under the Act.

11 In light of this statutory framework, I turn to consider the non controversial factual matrix which gave rise to the dispute between the parties. Mr Karanfilovski was injured in a motor vehicle accident on 21 December 2004 (the MVA). On 22 November 2006 he applied to the Authority for the medical assessment of a stabilisation and/or permanent impairment dispute, liability having been admitted by the Plaintiff as the relevant insurer. He accompanied his application with reports of Dr Max Ellis dated 3 October 2006 and 17 October 2006, and the results of a MRI scan and other diagnostic procedures, all of which post dated the accident. Dr Ellis, in the history he recorded, had noted:

“He had a previous neck injury requiring an operation on a cervical disc in 1994 from which he made a complete recovery, and he had no persisting pain or disability in his neck prior to the motor vehicle accident on the 21 ^st December 2004.”

12 Dr Ellis took the previous injury into account in his findings on 3 October 2006:

(1) there is cervical spine injury DRE category III with radiculopathy and impairment of activities of daily living, WPI 18%. Deducting 10% for pre-existing cervical disc injury, there is a residual of 16% WPI consequent on the accident of the 21 ^st December 2004.
Radiculopathy is in evidence with impaired light touch sensibility, weakness, positive nerve tension signs.
(2) there is lumbosacral spinal injury DRE category III, WPI 10%. Radiculopathy is in evidence with impaired light touch sensibility, weakness, and positive nerve tension signs affecting the left leg.
There is an overall combined whole person impairment of 24%.
If his impairments are assessed according to the Motor Accident Authority Guidelines and the AMA Guidelines 4 ^th edition, his whole person impairment is assessed as follows.
There is a cervical spine injury DRE category III, WPI 15% and a lumbosacral spinal injury DRE category III, WPI 10%.
There is a combined overall whole person impairment of 24%.”

13 Two weeks later, following MRI of Mr Karanfilovski’s lumbar spine, Dr Ellis reported:

“My assessment of his impairment following the motor vehicle accident at work on 21 ^st December 2004 you have in my report to you of the 3 ^rd October 2006.
There was an overall whole person impairment of 24% compromising (sic) 16% for the cervical spine and 10% for the lumbar spine. Radiculopathy was found in the examination for the lumbar spine injury with impaired light touch sensibility, weakness and positive nerve tensions signs affecting the left leg, and now there is a fourth confirming factor, radiological evidence of significant injury to his lumbar spin. The CT scan revealed at L5/S1 a mild to moderate disc prolapse indenting the thecal sac and the proximal portion of the right S1 spinal nerve. Endplate osteophytes and the intervertebral disc compromise both L5 spinal nerves in the neural exit canals, the changes are more marked on the left side consistent with the clinical findings of neological deficit in the left leg.”

14 The Plaintiff lodged a formal reply with the Authority, which included a medical certificate dated 23 August 2005 and a report of a Dr Donaldson which does not appear to be in evidence.

15 The matter was referred by the Authority to Assessor, Dr Margaret Gibson, who issued an assessment certificate dated 8 February 2007. She certified:

“The following injuries caused by the motor accident give rise to a whole person impairment which, in total is greater than 10%:
Back – musculo-ligamentous contusion with disc prolapse at L5/S1.
Neck – musculo-ligamentous contusion with disc bulging at C4/5 and protrusion at C6/7”

16 In the reasons which accompanied her certificate, Dr Gibson, recording the history given by Mr Karanfilovski, said:

“About 15 years ago he injured his neck at work whilst lifting heavy rolls of cables. About six months after this injury he had undergone surgery to his cervical spin, the procedure was performed at St. Vincent’s Private Hospital by neurosurgeon, Dr Sheehan (sic Sheehy). Mr Karanfilovski said that by six months after the surgery he was totally asymptomatic and had returned to work and all normal activities.”

17 In her reasons, Dr Gibson reviewed the medical reports and other material available to her, none of which predated 21 December 2004. She assessed whole person impairment (WPI) in the lumbosacral spine arising from the MVA at 5% and WPI arising from it in respect of the cervical spine at 15%. In each case, she assessed at 0% pre existing impairment as to which she observed:

“Dr Donaldson had reduced the impairment rating by subtracting pre-existing impairment but had not used the method required by the MAA Guides. There was no evidence of there being any pre-existing symptomatic impairment of the lumbar spine however there was pre-existing impairment of the cervical spine. Nevertheless Mr Karanfilovski maintains his neck problem had been rendered asymptomatic by surgery and there is no medical documentation to contradict his assertion. There was in fact no primary evidence as to the exact nature of the cervical surgery. The issue of pre-existing impairments is addressed in clause 1.30 and 1.31 of the MAA Guides the latter states “The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10, “For example, in apportioning a spine impairment ,first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments”.”

18 In the result, Dr Gibson assessed Mr Karanfilovski’s WPI caused by the MVA at 19%.

19 The Plaintiff on 27 March 2007 applied for a review of Dr Gibson’s assessment under s 63(1) of the Act, proffering in substance the following reasons as bringing the application within s 63(2)

“Having identified previous spinal surgery and injury to the cervico-thoracic region, there does not appear to have been adequate gathering and consideration of thorough and complete historical information (as required by AMA Guides 4 ^th Edition p.8 and MAA Permanent Impairment Guides 1 September 2005 paragraph 1.2) on the medical condition to determine: (1) Clinical status of the cervical spine following surgery performed by Mr Sheehy; and, (2) whether radiculopathy was present post operatively and pre-motor vehicle accident.

The assessment could be incorrect on the basis that pre-existing impairment has not been taken into account for the purposes of determining that an impairment exists in relation to the motor vehicle accident on 21 December 2004.

……………………………

The Assessor should have paid greater heed to the claimant’s pre-existing medical condition and should have obtained and used multiple sources of objective information before determining impairment, in accordance with p.3 AMA Guides which state:
“In practice, the first key to effecting an accurate impairment evaluation is a review of office and hospital records maintained by the physicians who have cared for the patient since the onset of the medical condition. Such records include clinical notes, medical consultation reports, hospital records, admission and discharge summaries, notes on operations, pathology and laboratory test reports, and reports on special tests and diagnostic procedures.
………………………………………..

The assessment could be incorrect on the basis that pre-existing impairment has not been taken into account for the purposes of determining that an impairment exists in relation to the motor vehicle accident on 21 December 2004.

…………………………………..

Table 4.1 of the MAA Guides appears not to have been applied appropriately in that neither the last two categories in T4.1 describing the claimant’s condition, i.e. “previous spine operation without radiculopathy” or “previous spine operation with radiculopathy” have been taken into account in accordance with paragraphs 1.30 and 1.31 of the MAA Guides.”

20 The application for review was dismissed by the Authority for reasons which are not in evidence.

21 On 22 November 2007, the Plaintiff applied to the Authority under s 62 (1) of the Act for a further medical assessment. That application was accompanied by medical notes, relating to Mr Karanfilovski, of general practitioners, Dr Romeo and Dr Nguyen, which predated the MVA and reports of a medico legal nature from Professor Richard Jones and Dr J Cummine. The application was also accompanied by a detailed submission, presumably prepared by the Plaintiff’s lawyers. The submission included these comments on the records of Drs Romeo and Nguyen:

“The medical records of Dr Romeo include (as marked) a number of entires before the motor vehicle accident where the Claimant complains of inter alia pain in the neck and referred pain into the left arm and headaches.
The medical records of Dr Nguyen contained (as marked) a history of numerous attendances on that doctor’s surgery before the motor vehicle accident, complaints of neck pain and referred pain to the left arm. The records note consistent and constant complaints of neck pain and left arm soreness throughout 2003 being the year preceding the accident. A notation on 18 July 2003 indicates that the Claimant had gone overseas for 5 weeks and he had stopped working and decided to take a break from work because he was not making any profit and given a final certificate.”

22 The submission summarised the basis of the Plaintiff’s application for a further assessment thus:

“The medical records and report from treating surgeon now available provide substantial new evidence and would justify a referral of this matter for further medical assessment. In the Respondent’s submission, the new evidence clearly establishes:
(a) The nature of the Claimant’s initial surgery;
(b) That the Claimant has had persisting and virtually identical symptoms from 1993 up until the motor vehicle accident in 2004;
(c) That the Claimant has had substantial time off work and substantial restriction on his ability to work throughout that period;
(d) That the Claimant’s contention to the CARS assessor that he had remained asymptomatic since the 1993 surgery is untrue;
(e) That the Claimant’s contention to the CARS Assessor that he had returned to work and all normal activities since the 1993 surgery and up until the time of the motor vehicle accident is untrue;
(f) That the clinical findings of the CARS Assessor are relevantly similar to the clinical findings identified by Dr Sheehy in the pre-motor vehicle accident period.”

23 Mr Karanfilovski replied to the application for a further medical assessment with a submission, which I infer was prepared by his lawyers and which concluded with the following paragraphs:

“The insurer also seeks to rely on the clinical notes of Dr Romeo and Nguyen as providing additional relevant information about the injuries. The notes of Dr Romeo marked by the insurer reveal treatments in 1996, 1997, 2001 and 2002. This is not additional relevant informant about the injury nor is it objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident.
Likewise the notes of Dr Nguyen indicate consultations following the 2003 incident. The last consultation was apparently on 18 July 2003 some 1½ years prior to the subject accident. Again, this is not additional relevant information about the injuries sustained in the accident nor objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident.
The insurer also seeks to rely upon the reports of Professor Jones and Dr Cummine. These reports are not additional information but rather simply the insurer’s medico-legal evidence. The fact that these doctors have a different opinion to the MAS Assessor is beside the point.
The Medical Assessment guidelines at 8.2 require the Proper Officer to be satisfied that any additional relevant information is capable of altering the outcome of the dispute from that certified in the previous assessment from “Not Greater than 10% Whole Person Impairment” to “Greater than 10% Whole Person Impairment” or vice versa. The insurer had not indicated how the so-called additional relevant information is capable of altering the outcome of the dispute.
In conclusion, the medical records and reports from the treating surgeon now provided by the insurer do not provide substantial new evidence and do not justify a referral of this matter for further medical assessment. The insurer makes a number of sweeping and self serving statements in the final paragraphs of their submissions. These supposed conclusions and assumption of what the so called new evidence clearly establishes are incorrect and offensive to the Claimant and should be ignored when considering the Application for Further Assessment.”

24 The Proper Officer of the Authority, Mr Sebastian Joeffry, dismissed the application for a further medical assessment on 16 January 2008. In doing so he was exercising the power conferred by s 62 (1B) of the Act. That power was required to be exercised in accordance with MAA Guidelines, clause 14 of which is relevantly in the following terms:

“14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to:
14.5.1 the application and any reply
14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and
14.5.3 the objects of the Act and the objects of MAS.
14.6 For the purposes of section 62(1A) the word ’material’ includes that it is relevant and capable of altering the outcome of a dispute about:
14.6.1 reasonable and necessary treatment, from ‘not reasonable and necessary’ to ‘reasonable and necessary’ or vice versa;
14.6.2 related treatment, from ‘not related’ to ‘related’ or vice versa;
14.6.3 permanent impairment, from ‘not greater than 10% whole person impairment’ to greater than 10% whole person impairment’ or vice versa.
14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application.
14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2.”

25 Mr Joeffry provided reasons for his decision to dismiss the application:

“You have argued that the outcome is capable of being changed by the evidence you have submitted. Your argument does not convince me that this would be the case. Specifically:
The application notes that no deductions were made for pre-existing impairments in the previous MAS assessment, and asserts that additional information is now available which would allow the assessor to do so. The application refers to the report of Dr Sheehy dated 17 April 2004 and notes that the claimant sustained initial injury to the cervical spine on 18 August 1993, an exacerbation of injury on 28 November 1997 and a subsequent injury on January 2003. The application also asserts that the claimant’s cervical spine injury was symptomatic at the time of the motor accident and refers to the records of Dr Nguyen and the report of Dr Sheehy dated 17 April 2007 to support this contention.
I note the degree of permanent impairment to the lumbar spine was previously assessed at 5%. With this in mind, the application does not argue what deductions should be made for the alleged pre-existing impairment to the cervical spine and how this deduction would result in a material difference to the outcome of the previous assessment. On the information available, I am not satisfied that the outcome of the previous assessment is capable of being materially altered.
In accordance with clause 8.3 of the Guidelines the application is dismissed.”

26 On 16 June 2008, Mr Karanfilovski underwent a further operative procedure in relation to his cervical spine under Dr Sheehy and on 21 November 2008, the Plaintiff made another application to the Authority for a medical assessment. This application was accompanied by most, if not all, of the material previously placed before the Authority together with further medical reports, some of which predated the motor vehicle accident. For instance, in a report dated 23 January 1997, Dr P Abeywickrema expressed this opinion:

“Mr Karanfilovski has degenerative disease of the cervical spine and as a result of the initial injury in 1994, had suffered disc prolapse and cervical nerve root compression. This had been treated by surgical decompression and apparently he made a good recovery. As a result of the recent injury in September, 1996 he appears to have aggravated the pre-existing injury.
His symptoms of pain in his left arm radiating to the 4 ^th and 5 ^th fingers suggest that there is a possible recurrence of pressure on the nerve roots at the C5 level. It is possible that he may require further surgery for the relief of these symptoms.
At present he is not fit for any duties.”

27 Dr Ronald McGlynn said on 10 March 1997:

“In regard to assessment:
1. I consider that this patient has suffered a permanent loss of function. I would assess this permanent loss of function of the cervical region as being equivalent to a 25% loss as compared to that of a worst case.
2. The patient has suffered a permanent impairment of his neck but I do not believe that there is any impairment of either his back or pelvis. I would assess again the permanent impairment of his cervical region as stated above.
Finally, I would consider that the prognosis at the present time is poor. I do not believe that occupational rehabilitation is warranted. I cannot exclude the possibility that this patient may at some future time require further investigation and surgery in regard to involvement in his C4/5 intervertebral space.
In this regard, it would appear advisable for this man to attend for further re-examination and assessment in a six month period.”

28 Although necessarily post-dating the MVA, Dr Michael Ryan reviewed Dr Gibson’s assessment in light of all the material then available to him and subsequently made available to the Authority. He said:

“I have read Dr Gibson’s assessment of Mr Karanfilovski dated the 8 February 2007. The history documented by Dr Gibson of Mr Karanfilovski’s previous illnesses and treatments appear extremely limited and most likely reflect the paucity of information available to her at the time.

In her discussion after assessing permanent impairment (page 11) she criticizes Dr Donaldson for using a method of subtracting pre-existing impairment not in accordance with the AMA guides. I agree with this, however, Dr Gibbons (sic Dr Gibson) has made no attempt by enquiry to determine what Mr Karanfilovski’s pre-existing impairment was, given that he underwent a surgical procedure on his cervical spine.
When Mr Karanfilovski’s cervical symptoms are assessed objectively, the symptoms that he had prior to his initial surgery the 19 August 2003 (sic 1993) are virtually identical to those he had before his second procedure. At the initial operation, Dr Sheehy performed a decompression of the C6 and C7 nerve roots.
From a clinical point of view, Mr Karanfilovski had clear evidence of cervical radiculopathy before that operation, recorded by Dr Sheehy as “quite marked weakness in the left arm, especially elbow extension, wrist extension, metacarpophalangeal extension and finger abduction. The left triceps reflex was absent.” This qualifies as radiculopathy (paragraph 4.28, page 27, AMA Guides 4). This equates to DRE Cervicothoracic Category III, Radiculopathy and represents a 15% whole person impairment.
Before the second procedure, Mr Karanfilovski’s recorded symptoms were identical to those he had previously. He had mild weakness of left triceps function, metacarpophalangeal joint extensors and finger extensors. The left triceps reflex was depressed in comparison to the right (an apparent improvement on his condition before the first procedure).
It is likely that Mr Karanfilovski has a genetically determined narrow cervical canal with genetically determined degenerative change.
Over the twelve years between his first operation and the motor vehicle accident, these changes have progressed.
Mr Karanfilovski’s cervical impairment now, based on his history, symptoms, and imaging, is precisely the same as it was before his first procedure. Expressed in terms of whole person impairment, Mr Karanfilovski’s whole person impairment prior to the motor vehicle accident was DRE Cervical Category III, a 15 % whole person impairment.
As this is unchanged, there is no measurable impairment of his cervical spine attributable to the motor vehicle accident of 21 December 2004.
Based on his examination there was no evidence of guarding, muscle spasm, or non-verifiable radicular symptoms in Mr Karanfilovski’s lumbar spin. The condition of his lumbar spine is therefore characterised as DRE Lumbosacral Category I, which represents 0% whole person impairment.”

29 Mr Karanfilovski’s advisers again lodged a reply asserting in effect that the application of 21 November 2008 contained nothing new. That application, in the result, was dismissed by the Proper Officer, Ms Kay Montague, on 14 January 2009. She provided these reasons:

“The application notes that no deductions were made for pre-existing impairments in the previous MAS assessment, and asserts that additional information is now available which would allow the assessor to do so.
You have argued that the outcome is capable of being changed by the evidence you have submitted. Your argument does not convince me that this would be the case.
Specifically:
The application and supporting documents do not argue what deductions should be made for the pre-existing impairment of the injuries and how this deduction would result in a material difference to the outcome of the previous assessment, as required for question 6 of the application form.
Furthermore, Assessor Gibson was made aware of the claimant’s pre-existing injuries evidenced in the reports submitted for the original assessment. Assessor Gibson states in her report dated 8 February 2007, “the accident had aggravated a pre-existing work injury to his neck and age related degenerative changes in both neck and back regions.
In accordance with clause 14.7 of the guidelines, the application is dismissed. You may submit another application with other or additional supporting material and detailed reasons at any time. The other party has been advised.”

30 In essence, it is the decision of Proper Officer, Ms Montague, which is brought into question in these proceedings. She had, as indicated above, an obligation to provide reasons and those reasons may be scrutinised for the purpose of determining whether an error appears on the face of the record within s 69 (3) of the Supreme Court Act. It was not argued before me that the Authority or its Proper Officer is not answerable to the jurisdiction of the Supreme Court in the circumstances which arise in this case. Indeed such a proposition would seem to be contrary to authority including the decision of Johnson J in Allianz Australia Insurance v Crazzi [2006] 68 NSWLR 266.

31 On behalf of the Plaintiff, it was submitted that the reasons of Ms Montague demonstrate that she ignored relevant material or identified the wrong issue. It was also submitted that her decision was unreasonable within Lord Greene’s dictum in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223, especially at pages 229-230.

32 Mr Jackson submitted correctly, I think, that the obligation upon Ms Montague was to give no more than brief reasons within the guidelines, as otherwise there may have been no obligation to give reasons at all, having regard to the decision of the High Court in Public Service Board v Osmond (1985-1986) 159 CLR 656. He also submitted, again correctly in my opinion, that the reasons should not be viewed with “an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Mr Jackson submitted that Dr Gibson evidenced in her reasons an awareness of Mr Karanfilovski’s previous injury and that, in any event, the lumbar spine having been assessed at 5% WPI even a substantial reduction in whole person impairment for the cervical spine would not be likely to result in Mr Karanfilovski failing to meet the threshold provided for by s 131.

33 Nonetheless, as it seems to me, Ms Montague’s decision cannot be allowed to stand. It is true that there was no material before her to the effect that Mr Karanfilovski’s condition has deteriorated. But there was a wealth of additional material, particularly focussed on Mr Karanfilovski’s pre MVA medical condition. This material, in my opinion, constituted “additional information” within s 62 (1A) as it plainly impacted upon the extent of the impairment suffered by Mr Karanfilovski as a result of the MVA. On the face of it, in my view, the additional information was capable of having a material effect on the outcome of Dr Gibson’s assessment. That it would, was, of course, the opinion of Dr Ryan but is not something which I need to determine.

34 Making all due allowances, Ms Montague, as it seems to me, failed to consider appropriately the material properly before her. She asserts that “the application does not argue what deductions should be made for the pre-existing impairment”. In fact, Dr Ryan does precisely that in the passage of his report quoted above. Moreover, the submission attached to the application concluded:

“Further review by MAS Assessor of the Claimant’s injuries in the 21 December 2004 motor vehicle accident is likely to result in assessment of whole person impairment not greater than 10%.”

35 The discretion conferred on a Proper Officer by s 62 (1B) is, in my opinion, limited by the terms of the section. In other words, the task of the Proper Officer considering an application by a party of the kind here under consideration is to determine whether there is relevant additional information and if so whether it is capable of having a material effect on the outcome of the previous assessment. In considering those matters, the Proper officer is required to have regard to the MAA Guidelines.

36 In this case, in my view, the additional information was overwhelmingly one way. It was no answer to say, as the Proper Officer did, that Dr Gibson was aware of the previous injury. The material before Dr Gibson, including the statement of Mr Karanfilovski, gave no hint of what the additional information contained as to the serious and continuing consequences of his previous injury. The decision not to refer the matter for a further medical assessment verged, in my opinion, on what Lord Greene in Wednesbury described as “unreasonable”. However, it is unnecessary for me to make that finding. Suffice to say that, in my view, it was established that the Proper Officer ignored relevant material of significant weight which flawed the decision making process. Her decision, which became the decision of the Authority, should be quashed.

37 Although the summons sought an order that the matter be referred for a further medical assessment, I do not think I should make that order even if, which I doubt, I have the power. The discretion conferred by s 62 (1B) should be exercised by a Proper Officer according to law.

38 I make these orders:

1. I quash the determination of the Proper Officer and the Authority dated 14 January 2009 dismissing the application dated 21 November 2008 for a further medical assessment in this matter,

2. I direct that the matter be returned to the Authority in order that the application for a further medical assessment might be dealt with according to law.

3. I order Mr Karanfilovski to pay the Plaintiff’s costs.

4. I make no order as to the costs of the Authority and its Proper Officer.

5. Exhibits may be returned.