Wood v Insurance Australia Group Limited trading as NRMA Insurance

[2025] NSWSC 320

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wood v Insurance Australia Group Limited trading as NRMA Insurance [2025] NSWSC 320

Hearing dates:

21 March 2025

Date of orders:

04 April 2025

Decision date:

04 April 2025

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

(1) Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 59.10(2), the time in which the plaintiff may commence these proceedings is extended up to and including 13 September 2024.

(2) The proceedings be dismissed.

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

Catchwords:

ADMINISTRATIVE LAW – judicial review – referral of separate and distinct medical assessment matters under s 58 Motor Accidents Compensation Act 1999 (NSW) – s 58(1)(a) and (b) certificate confined to whether treatment relates to injury caused by motor vehicle accident and whether the treatment was reasonable and necessary in the circumstances – referral under s 58(1)(b) is not a determination of causation of injury generally – assessment of whole person impairment is a different medical assessment matter under s 58(1)(d) and includes separate determination of causation – no jurisdictional error – no legal unreasonableness – no practical injustice – proceedings dismissed

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AAI Ltd t/as AAMI v Chan [2021] NSWCA 19

AAI Limited trading as GIO v Amos [2024] NSWCA 65

Alliance Australia Insurance Ltd v Salucci [2023] NSWSC 1593

Browne v Dunn (1893) 6 R 67

Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104

McKee v Allianz (2008) 71 NSWLR 609; [2008] NSWCA 163

Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82

Rodger v De Gelder [2015] NSWCA 211

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Wood v Insurance Australia Group Limited trading as NRMA Insurance [2022] NSWSC 1290

Category:

Principal judgment

Parties:

Joshua Wood (Plaintiff)
Insurance Australia Limited trading as NRMA Insurance (First Defendant)
Alexander Bolton, Sophia Lahz, and Christopher Oates as a Review Panel constituted under s 63 of the Motor Accidents Compensation Act 1999 (Second Defendant)
The President of the Personal Injury Commission (Third Defendant)

Representation:

Counsel:
C Hart (Plaintiff)
J Gumbert (First Defendant)
Submitting appearances (Second and Third Defendants)

Solicitors:
Evers & Co (Plaintiff)
Sparke Helmore (First Defendant)
Crown Solicitor’s Office NSW (Second and Third Defendants)

File Number(s):

2024/00338254

Publication restriction:

Nil

JUDGMENT

1. On 15 June 2015, the plaintiff, Joshua Wood, was involved in a motor vehicle accident when his car was rear-ended whilst stationary on a street in Kotara, NSW. The vehicle at fault was insured by the first defendant insurer, “NRMA”. Mr Wood made a claim for damages against NRMA in respect of injuries and loss he claims to have suffered in the motor accident. Of particular relevance is his claim that he suffered, amongst other things, a lower back injury. His claim is governed by the Motor Accidents Compensation Act 1999 (NSW) (the “MAC Act”).

2. In these proceedings Mr Wood seeks judicial review of the certificate regarding whole person impairment issued by the Review Panel on 21 May 2024. The Review Panel concluded that he had 0% whole person impairment in respect of his lower back injury. The third defendant, the President of the Personal Injury Commission (“PIC”) and the Review Panel have filed submitting appearances.

3. To pursue his claim for judicial review of the Review Panel’s certificate, Mr Wood needs an extension of time under Uniform Civil Procedure Rules 2005 (NSW) r 59.10. His delay in commencing proceedings is explained adequately in the affidavit of Michael Karl Evers sworn 13 September 2024. The delay was approximately one month in length. I was not made aware of any prejudice to NRMA. In the circumstances I exercise my power under subrule 2 to extend the time for filing the application for review. However, for the reasons that follow, Mr Wood’s proceedings will be dismissed.

Statutory framework and principles relevant to medical assessments under the MAC Act

4. It is necessary to outline the statutory framework that underpins this application for judicial review, not the least because the approach taken by counsel for Mr Wood blurs the statutory basis and effect of provisions relevant to the referral and review of medical assessment matters under the MAC Act, and misconstrues the effect of binding decisions that interpret those provisions.

5. Part 3.4 of the MAC Act makes provision for medical assessment and provide the scheme for the resolution of disagreements between claimants and insurers.

6. Section 58 of the MAC Act sets out the disagreements to which Part 3.4 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,

(c) (Repealed)

(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%.

(e) (Repealed)

(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.

7. As can be seen from the text of s 58, the question of causation is an intrinsic part of the medical assessment matter described in s 58(1)(b) as well the matter in s 58(1)(d). This is an important observation in the context of complaint made by Mr Wood arising from the separate referrals of medical assessment matters that were made. The first referral was in early 2020 to Dr Frank Machart asking him to address questions under s 58(1)(a) and (b) regarding the spinal surgery performed in April 2018. The second referral was to Dr Christopher Harrington, asking him to assess the question of whole person impairment under s 58(1)(d).

8. The question of causation to be decided under s 58(1)(b) (and, separately, s 58(1)(d)) are matters for the medical assessor and, upon review, the review panel: Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 (“Mills”) at [61]-[63] (Giles JA, with whom Tobias JA & Handley AJA agreed); AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [6] (Leeming JA, with whom Gleeson JA agreed).

9. The significance of an assessment under s 58(1)(d) is that s 131 of the MAC Act provides that 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 vehicle accident exceeds 10%.

10. Disagreements, or “medical disputes”, may be referred to the Motor Accident Authority (and, under later legislation, to the President of the PIC) by a party, court or claims assessor: s 60(1). The Motor Accident Authority or PIC will then refer the dispute to one or more medical assessor(s): s 60(2). The medical assessor undertakes an assessment and gives a certificate as to the matters referred: ss 61(1). That certificate 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: s 61(2), although a court may reject a certificate in certain limited circumstances s 61(4). (Emphasis added). The certificate must set out the reasons for any finding by the medical assessor as to any matter certified in the certificate: s 61(9).

11. For obvious reasons, a medical assessment does not bind a later assessor or review panel and so is not, and cannot be, “conclusive evidence” that binds other medical assessors. Each assessor (and review panel) must provide their own fresh assessment, which in the case of a review panel, will either confirm the earlier certificate or revoke the certificate and issue a new one: s 63(4). As stated by Adamson J in Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104 (“Lithgow”) at [44]:

“[44] As can be seen from the provisions extracted above, following the assessment by an assessor of a medical dispute, the assessor is to “give a certificate as to the matters referred for assessment” (s 61(1)). The certificate as to a “medical assessment matter” is conclusive evidence in any court proceedings or in any assessment by a claims assessor (s 61(2)). It does not, however, bind other medical assessors, although it would generally be taken into account. Accordingly, when Dr Ryan assessed the medical dispute that had been referred to him, he was not obliged to accept Dr Kenna’s findings of causation but was obliged to make his own assessment, based on the material before him, which included Dr Kenna’s certificate and reasons.”

12. Section 63 provides for review of a medical assessment by a review panel:

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.

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

(a) 2 medical assessors,

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

(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.

(3B) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.

(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.

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

(6) Section 61 applies to any new certificate or new combined certificate issued under this section.

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

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

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

13. Of particular note here is the provision that a review panel must conduct a fresh assessment of all the matters with which the medical assessment is concerned; the review is not limited to the aspect of the certificate that is alleged to be incorrect: s 63(3A).

14. The function of a review panel was explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 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.”

15. There is no obligation for a review panel to consider or refer to every piece of evidence presented. As Giles JA stated in McKee v Allianz (2008) 71 NSWLR 609; [2008] NSWCA 163 at [38]:

“The members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment.”

16. Section 44 of the MAC Act authorises the Motor Accident Authority to issue guidelines. Relevantly, the Permanent Impairment Guidelines in place at the time discuss the concept of “causation of injury” at 1.5 to 1.7:

“1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.6   Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

‘Causation means that a physical, chemical or biologic factor contributes 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:

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

2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

This, therefore, involves a medical decision and a non-medical informed judgement.

1.7   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 in not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

Background facts and procedural history

17. Mr Wood forwarded a personal injury claim form to NRMA on 5 February 2016 identifying injuries to his lower back and left side. In April 2018 he underwent neurosurgery performed by Dr Sears, involving a L5/S1 microdiscectomy and right S1 rhizolysis.

18. A disagreement arose between the claimant and NRMA about whether the operative treatment provided to the claimant by Dr Sears in April 2018 was reasonable and necessary in the circumstances, and whether such treatment related to the injury caused by the motor accident. This disagreement comprised two separate “medical assessment matters” as set out in s 58(1)(a) and (b) of the MAC Act. These matters were referred to Medical Assessor Dr Frank Machart, under s 60 of the MAC Act.

19. On 13 February 2020 Dr Machart assessed Mr Wood. On 6 May 2020, Dr Machart issued a certificate addressing the two medical assessment matters referred to him. He concluded that “the pathology for which the L5 S1 microdiscectomy was conducted was as a result of the MVA” and that the surgery was “appropriate treatment, reasonable and necessary in the circumstances”.

20. His determinations regarding those two matters confined to “Treatment” were set out at the end of the certificate as follows:

“Treatment – Causation

It is evident that something did happen to the lumbar spine, probably fairly minor injury at the time of the MVA. The initial photographs of the motor vehicle suggest minor damage, which if true representation of the physical damage to the car, cannot be consistent with substantial injury to the lumbar spine, particularly mechanism of injury at the time, car rear-ended. I was not persuaded by the pictures of the vehicle alone indicated the full extent of the car damage. The patient's narrative was indicative of the vehicle written off and of substantial damage.

I obtained information on damage to vehicles, see paragraph 7 and my comments.

Pathology in the lumbar spine was evident at the time of the initial imaging.

The injury to the lumbar spine disc was not static, and was consistent with change of symptoms and advancement in the pathology over time, initial disruption of disc capsule, which over time caused a disc protrusion. I do not have before me evidence that the change in the disc morphology was due to any other event.

I am of the opinion that the pathology for which the L5/S1 microdiscectomy was conducted was as a result of the MVA.

Treatment – Reasonable and Necessary

The disc protrusion caused pressure on the nerve root, progression of pathology from the MVA to the extent where surgery to relieve the pressure on the nerve root, microdiscectomy, was the appropriate treatment, reasonable and necessary in the circumstances.”

21. In June 2020, NRMA applied for Dr Machart’s assessment to be referred to a review panel. In August 2020, the application was dismissed under s 63(3). Dr Machart’s certificate therefore remained “… conclusive evidence as to the matters certified in any court proceedings or in any assessment by the Commission in respect of the claim concerned”. (Emphasis added).

21. After the dismissal of NRMA’s application, the claimant then proceeded to the claims assessment stage under the MAC Act.

22. On 9 September 2020, a telephone conference was held by Claims Assessor Foggo with the parties' representatives. The claims assessor's report of that preliminary conference included the following comments:

“MATTER SUMMARY

1. The solicitor for the insurer advised that no challenge would be made to the MAS determination dismissing the application for Review (of Dr Machart's certificates).

…

DIRECTIONS MADE UNDER SECTION 100

…

1. The claimant's solicitor is to lodge an application for assessment of whole person impairment with MAS on or before 16 October 2020.

…”

24. Counsel for Mr Wood, Mr Hart, placed great emphasis on what is recorded in that file note about the decision by NRMA not to pursue review of Dr Machart’s certificate any further. Mr Hart submitted that this position comprised an “admission” by NRMA that causation has been established generally in respect of Mr Wood’s back pathology, and that as a result there is an estoppel that prevents NRMA from arguing causation more generally has not been established. He argued that this is because of Dr Machart’s conclusion that the surgery was caused by the injuries sustained in the motor accident. Mr Hart submitted that the effect of the note made and the direction given by Mr Foggo was that the parties agreed that the only remaining medical dispute was “assessment of whole person impairment”.

25. This interpretation of events betrays wishful thinking on the part of Mr Wood’s legal representatives, but it is a position not available at law. In any event, in its submissions to both the medical assessor dated 1 February 2021 and later in submissions to the PIC delegate in July 2021, NRMA made it clear via its solicitor that causation remained seriously in issue in regard to the s 58(1)(d) question of whole person impairment.

26. In its February 2021 submissions, the solicitor for the NRMA denied liability on the basis that the claimant did not sustain any bodily injury in the subject accident. Under the heading “Dispute”, these submissions were made:

“5.1   The insurer submits that the treating records and qualified evidence outlined below, show a delay in the claimant making any back related complaint post-accident for a significant amount of time.

5.2   Additionally, the insurer disputes that the pain reportedly experienced by the claimant in his buttocks is casually(sic) related to the subject accident, and instead, is attributable to a Thai massage received by the claimant in October 2017.

5.3   The insurer therefore submits that the claimant did not sustain any injury as a result of the subject accident. In the alternative, the insurer submits that the claimant's alleged injuries arising from the subject accident are only minor soft tissue injuries and do not exceed the 10% Whole Person Impairment (WPI) threshold.

….

6.18   The insurer submits that the above treating records highlighting a delay and lack of treatment in regard to the claimant's alleged injuries arising from the subject accident, is significant as it confirms the claimant's injuries were only minor in nature as immediate or ongoing treatment was not sought.

6.19   The insurer notes that on a number of occasions, the claimant's lumbar spine condition was diagnosed as degenerative change with the absence of fracture, compression or displacement.

6.20   The insurer also submits that the above treating records also highlight the claimant's first complaint of buttock pain was over two years post-accident and appears to be following a Thai massage. Therefore, the insurer submits that the claimant's buttock pain is not causally related to the subject accident.”

27. The s 58(1)(d) dispute was referred to Dr Christopher Harrington for assessment to determine “the degree of permanent impairment under s 58(1)(d) of the Act”. Of necessity, this must include an assessment of the statutory question as posed namely: “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.

28. On 11 June 2021, Dr Harrington issued a certificate under s 61(1) of the MAC Act:

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

● Lumbar Spine - soft tissue injury

● Right hip - soft tissue injury

An assessment of degree of permanent impairment of these injuries is therefore not required.”

29. On 7 July 2021, the claimant applied to the President of the PIC to refer Dr Harrington’s medical assessment to a Review Panel for review.

30. In written reply submissions provided by the solicitor for NRMA dated 28 July 2021, any suggestion of an “estoppel” applying to the determination of whole person impairment because the treatment dispute had been earlier determined, was strongly denied. It was argued that there was no requirement to refer to Dr Machart’s certificate in its submissions, noting that the causation findings of a treatment dispute do not bind any subsequent MAS assessment, citing Adamson J in Lithgow at [44].

31. On 20 September 2021 a delegate of the President of the PIC determined that she was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and so dismissed the application.

32. In 2022 Mr Wood sought judicial review of the delegate’s decision in this Court. Following two days of hearing, Wright J decided that the delegate’s conclusion was incorrect as it had proceeded on at least two misconceptions, namely that Dr Harrington was required to form an opinion as to causation as well as degree of impairment when the only medical dispute referred to Dr Harrington was the degree of impairment as a result of the injuries accepted by the parties as having been caused by the motor accident; and that Dr Machart’s certificate in that regard, which had been accepted by the parties and was not challenged, was irrelevant. [1]

    1. Wood v Insurance Australia Group Limited trading as NRMA Insurance [2022] NSWSC 1290 at [64].

33. His Honour held that as a result of these misconceptions, the delegate fundamentally misunderstood the task required to be performed when considering whether to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect. The question which the delegate addressed was whether it was open on the material before Dr Harrington to conclude that the injuries which gave rise to the treatment in April 2018 were not caused by the motor accident. Wright J held that this was incorrect, since the issue of causation was not in dispute, and that that issue had not been referred to Dr Harrington. Wright J decided that as a result of the misconceptions and in addressing the wrong question, the delegate failed to address the correct question, which was whether to be satisfied that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect in a material respect because he had based his certificate on his view that the relevant injury was not caused by the motor accident when that issue had not been referred to him for assessment.

34. His Honour upheld the application for judicial review, and the matter was remitted to the PIC to arrange for Dr Harrington’s certificate to be referred to a review panel.

35. Whilst there are strong reasons to doubt the correctness of Wright J’s conclusion on the basis set out by Schmidt J in Alliance Australia Insurance Ltd v Salucci [2023] NSWSC 1593 (“Salucci”), whether his decision was wrong or not does not change the fact that I must review the decision of the Review Panel. Although one of the grounds for review before me relates to Wright J’s judgment, it is a complaint that the Review Panel did not have sufficient regard to this decision when deciding they were required to assess causation afresh. Wright J’s decision cannot change what the statute provides, and was unfortunately based on a mistaken view of the prevailing situation where his Honour was not assisted with a contradictor or submissions that assisted him with binding Court of Appeal authority such as Mills which settled that issue with clarity to the effect that “a medical assessment of degree of permanent impairment without regard to causation from the motor accident has no statutory basis or function”. [2]

    2. Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [59].

36. On 21 May 2024 the Review Panel issued a Certificate with 38 pages of reasons on 21 May 2024, revoking the Certificate of Dr Harrington and certifying that Mr Wood’s whole person impairment as a result of the motor vehicle accident was 0%. The Review Panel concluded its reasons this way:

“165.   As a result of the accident on 10 June 2015, the claimant has suffered soft tissue injuries to his lumbar spine.

166.    The claimant developed a right-sided disc L5/S1 lesion two years after that accident however this was not as a result of the accident, noting the claimant had a motor bike accident in 2016 with a direct injury to his right leg and abrasions to his right buttock. The claimant also had a notable event around 2017 when having a Thai massage with the therapist placing their knee firmly into his right buttock. This caused the claimant to seek medical assistance two days later, complaining of severe right buttock pain.

167.    Medical Assessor Harrington found that the injuries to the claimant's back and right hip had resolved. He assessed WPI at 0%. The Panel has also found that the lumbar spine soft tissue injury claimed by the claimant as arising out of the accident has resolved. There is no current impairment to assess.”

37. The Review Panel also explained, by reference to the history of complaint and available spinal imaging, why it reached the conclusion that it did:

“151.    As the Medical Assessors commented in their examination findings, treating specialist correspondence at the time such as that of Dr Sears refers to an eight-month history of right buttock/leg pain which is indicative of onset of intense symptoms from mid-2017, approximately two years after the motor accident.

152.    Whilst the lack of complaint by the claimant of lumbar spine and right hip pain is not determinative that there was no injury to those areas, the Panel is satisfied that the claimant did have limited treatment as a result of the accident. If he had a notable back pain, he would have sought treatment. Instead, he was able to ride a motorbike and in the course of that activity, suffered physical injuries including a fractured ankle and considerable abrasions to his right hip and side which initially prevented surgical treatment for his physical injuries.

153.    The Panel is satisfied that the right hip disability is not related to the subject accident. It is not referred to on the claim form, the claimant stated he had low back pain radiating to left side, and this is consistent with contemporaneous medical evidence including CT scan showing a left paracentral L5/S1 disc displacement. The first mention of right sided symptoms does not occur until after the subsequent motorcycle accident. The accident the subject of this claim did not materially contribute to the development of sciatica.   

154.    The Panel is satisfied that the latter mentioned right-sided L5/S1 disc lesion causing S1 compression was not present on lumbar spine scans performed during 2015, shortly after the subject motor accident.

155.   For the reasons discussed, the Panel has determined that on the balance of probabilities, a right-sided disc L5-S1 lesion developing two years after the subject motor accident is not causally related to the accident. Following on from this, the subsequent surgery L5/S1 microdiscectomy was not reasonable and necessary due to the subject motor accident although it might have been reasonable and necessary because of subsequent events.

156.    The Panel concludes that the subject motor vehicle accident resulted in a persisting soft tissue injury of the lumbar spine resulting in DRE category I with 0% WPI and that the right S1 nerve root compression secondary to disc prolapse was not caused by the subject accident but had developed subsequently following an over vigorous Thai massage when the knee was inserted into the right gluteal area which had been the site of persisting pain since a motorcycle accident, which had probably resulted in an incipient right-sided disc injury, and which was extended following the massage to produce actual pressure on the right S1 nerve root manifesting as sciatica and li1ecessitating discectomy.

157.    The Panel revokes Medical Assessor Harrington's certificate. It agrees that the subject accident resulted in a lumbar spine soft tissue injury, associated only with left sided local mechanical symptoms but no radiation to the left lower extremity. The Panel does not find a right hip soft tissue injury was related to the accident for reasons outlined elsewhere in the certificate - pictogram shaded central and left sided lumbar area, no reference to right hip in contemporaneous medical evidence prior to the subsequent motorbike accident , which in effect broke the chain of causation from the index motor vehicle accident and caused the onset of new symptoms affecting the right side of lumbar spine/gluteal region. The Panel agrees that Medical Assessor Harrington’s clinical examination findings are consistent with DRE Lumbosacral category I giving 0% WPI, and the finding of full range of movement at the right hip does not give rise to any permanent impairment.”

Mr Wood’s grounds for judicial review

38. Mr Wood set out six argumentatively expressed grounds for review in his amended summons as follows:

(1) The second defendant acknowledged that the Medical Assessment of Dr Machart was “not within the remit” (para 120, last paragraph page 26), yet proceeded to determine that the right sided L5/S1 disc lesion and subsequent surgery was not caused by the MVA at [155]. This is “jurisdictional error” and/or ultra vires.

(2)   The second defendant, in its reasoning, invalidly assumed a jurisdictional entitlement set aside the certificate of Dr Machart, which was unchallenged by the first defendant. The record demonstrates the second defendant acted in a manner that was legally unreasonable and ultra vires: Meeuwissen v Boden (2010) 78 NSWLR 143 (per Basten J at [148]).

(3)   The second defendant failed in its statutory duty to observe the content and effect of the decision of Wright J in Wood v Insurance Australia Group Limited trading as NRMA Insurance [2022] NSWSC 1290. This failure by the Second Defendant is therefore “manifestly deficient and (does) not constitute compliance with the minimum obligation” of its delegated statutory power: Campbelltown City Council v Vegan [2004] NSWSC 1129 at [129]; Cole v Wenaline Pty Ltd [2010] NSWSC 78 at [131] and is ultra vires.

(4)   The second defendant in its reasoning, misunderstood and misapplied its delegated power. It should have, in the proper exercise of its delegated power, found, in accordance with Dr Machart, the L5/S1 surgery was caused by the MVA. The decision made contrary to this unchallenged MAC is legally unreasonable and should be set aside: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”).

(5) The plaintiff relies on grounds 1-4 above, to assert the second defendant in its decision, failed to apply itself to the real question to be decided in carrying out its statutory function under s 63, leading to jurisdictional error. This can be properly characterised “as a purported and not real exercise of (its) statutory function in s 58(1)(d), leaving that statutory function unexercised”: Rodger v De Gelder (2015) MVR 514, Gleeson JA (in majority) at [109]; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ).

(6)   The reasons of the second defendant include opinions and findings as to the cause of his sciatica that were “credit” or “non-medical determinations”. The minimum requirement, as set out in the relevant guidelines, would have been for the it to bring the report of Dr Machart to the plaintiff’s attention and seek an explanation as to why Dr Machart’s determination should not be set aside and a contrary decision made in its place. This, necessarily, should have included the second defendant (through or with the third defendant) granting an opportunity for the plaintiff to engage legal advisers in order to advocate the continuing legal effect of Dr Machart’s unchallenged MAC. The second defendant, in determining the entitlements of the plaintiff, without providing such opportunity, created “practical injustice” and material prejudice, such that the decision demonstrates constructive failure to exercise jurisdiction, and should be quashed: Roger v De Gelder (2015) 71 MVR 514.

39. Unfortunately each one of them stems from a misunderstanding of the operation of the MAC Act and the fundamental requirement that a referral under s 58(1)(d) must always, inevitably, include an assessment of causation and that the previous treatment determinations were confined to the particular questions that were referred at that time.

Ground 1: Making a determination that the disc lesion and surgery were not caused by the motor accident - jurisdictional error

40. Mr Hart submitted that in assuming it was entitled to ignore or displace the “no challenge” concession made by NRMA on 9 September 2020, the Review Panel misunderstood its remit and so made a determination that was ultra vires and that constituted jurisdictional error.

41. Ms Gumbert submitted that the Review Panel was not deciding a dispute order s 58(1)(a) or (b) of the MAC Act, but the question of causation of the surgery was an integral part of the medical assessment matter the Review Panel was deciding under s 58(1)(d). For the reasons set out in Mills (amongst other authorities), the Review Panel needed to consider and assess causation as part of the completion of its statutory task. There was no error in assessing causation of the surgery in that context.

42. I accept Ms Gumbert’s submissions. To properly evaluate causation as required under s 58(1)(d), it was necessary to consider the treatment course. The Review Panel were carrying out their statutory task properly and there was no error.

Ground 2: Invalidly assuming an entitlement to “set aside” the Certificate of Dr Machart - legally unreasonable and ultra vires

43. As submitted by Ms Gumbert, this ground is based on a misconception of the effect of the Review Panel’s certificate. It did not “set aside” the certificate of Dr Machart. It formed its own view as to the separate medical assessment matter that had been referred to it in avoidance with its statutory duty.

44. The Review Panel was not bound by Dr Machart’s decision on a different statutory question, but it was appropriate to, in carrying out its analysis of that question, refer to and explain its reasons as to why it formed the view it did, and that included explaining the reasons for its disagreement with Dr Machart’s conclusions about the causal link between the back surgery and the motor accident.

45. I accept in full Ms Gumbert’s submission that any “concession” of causation by a party to proceedings, even if one was made, (and I do not accept any such concession was made), was irrelevant. Just as a finding on causation by a District Court Judge in Mills could not curtail the statutory task that the Review Panel in that case had to perform, neither could any purported concession by a party in this case curtail or change or limit the Review Panel’s task here. The Review Panel was required to complete its statutory function of determining the entire s 58(1)(d) question. Ground 2 fails.

Ground 3: Failing to observe the content and effect of the decision of Wright J - decision manifestly deficient and ultra vires

46. Mr Hart alleged that the Review Panel failed in its statutory duty by not making reference to the decision of Wright J in Wood v Insurance Australia Group Limited trading as NRMA Insurance [2022] NSWSC 1290.

47. Ms Gumbert disagreed, emphasising the observations of Schmidt J in Salucci at [74] that the hearing before Wright J was without a contradictor and his Honour was not provided with relevant binding authority which guides the approach that must be taken by a review panel: Mills, in which the Court of Appeal (Giles JA, Tobias JA and Handley AJA agreeing) held:

“[59] The statement of the threshold in s 131 contained the composite phrase, the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, with the two elements of degree of permanent impairment and of causation of the degree of permanent impairment. The same phrase with its two elements was found in ss 131, 133(1) and 58(1)(d).

[60] Other provisions in Pt 3.4 used the shorter phrase, the degree of permanent impairment (s 61(2)(a), s 61(2)(b); s 132(1), s 132(2), s 132(3); s 133(2)). Sometimes the phrase was related to the requisite percentage (s 61(2)(a); s 61(6)), without express reference to the element of causation.

[61] That element must, however, be read into the use of the shorter phrase. Assessment of degree of permanent impairment without regard to causation from the motor accident was not relevant to determining whether the threshold in s 131 was reached, and would depart from the description of the matter in 135 s 58(1)(d). A medical assessment of degree of permanent impairment without regard to causation from the motor accident had no statutory basis or function. That the shorter phrase included the element of causation is clear from its use in s 132, because the point of the degree of permanent impairment was sufficiency for an award of damages for non-economic loss. It is also clear from s 133(2), because the shorter phrase related back to the composite phrase in s 133(1).” (Emphasis added)

48. As Schmidt J held in Salucci at [76] and [79]:

“[76] … in Mills it had already been decided that “Assessment of degree of permanent impairment without regard to causation from the motor accident was not relevant to determining whether the threshold in s 131 was reached, and would depart from the description of the matter in s 58(1)(d). A medical assessment of degree of permanent impairment without regard to causation from the motor accident had no statutory basis or function.”: at [61].

….

[79] Section s 58(1)(d) being concerned as it is with not only the question of the degree of permanent impairment which resulted from Mr Salucci’s injuries, but also whether they were caused by the accident, even in a case where the parties are not in dispute about causation, it has to be considered in the assessment, as was actually also explained in Brown.”

49. Ms Gumbert submitted that Mr Hart’s reliance on the decision of Wright J must be rejected as it incorrectly placed restrictions on the scope of the fresh assessment to be conducted by the Review Panel, when no such restriction could ever be applied.

50. I accept Ms Gumbert’s submissions. The Review Panel was required to carry out its own fresh assessment under s 58(1)(d) and did so. Ground 3 fails.

Ground 4: Failing to conclude consistently with Dr Machart that the L5/S1 surgery was caused by the motor accident, in circumstances where that certificate is final - legal unreasonableness

51. Mr Hart argued that the Review Panel misunderstood and misapplied its delegated power by not coming to the same conclusion as Dr Machart that the L5/S1 surgery was “caused by” the motor vehicle accident. He submitted that the Review Panel decision was made contrary to an “unchallenged” medical assessment certificate, and is therefore legally unreasonable.

52. As submitted by Ms Gumbert, this submission is misconceived. The Review Panel was required to form its own opinion on the medical assessment matter, which it did. The Review Panel had regard to Dr Machart’s decision and explained why it considered it was incorrect, and why it was not bound by it. This ground of review also fails.

Ground 5: Given the matters set out in Grounds 1-4, failing to apply itself to the real question to be decided - there was a failure to exercise statutory function under s 63 and so jurisdictional error

53. Given the failure of grounds 1 to 4, I am not persuaded that there was any failure by the Review Panel to exercise its statutory function. On the contrary, I am satisfied it did so in a manner that was consistent with proper exercise of its statutory power and obligations. Ground 5 is without substance.

Ground 6: Given that the Review Panel’s findings as to the cause of the sciatica were based on credit, and so a non-medical determination, the Guidelines required that the Review Panel bring the report of Dr Machart to the attention of Mr Wood (and his lawyers) and seek explanation as to why that determination should be set aside and a contrary decision made, and the failure to do so created practical injustice and material prejudice and was procedurally unfair.

54. Mr Hart submitted that Dr Harrington gave Mr Wood no reasonable opportunity to respond to Dr Harrington’s intention to “reject or ignore” the NRMA’s “no challenge to causation concession”, and that he planned to “ignore” Dr Machart’s “previous conclusions favourable” to Mr Wood on causation. Mr Hart submitted that Dr Harrington breached a “directive of clause 15(a) of the Code of Conduct” relating to procedural fairness.

55. Mr Hart submitted that the Review Panel should have seen that the approach taken by Dr Harrington involved a practical injustice and acted accordingly to remedy this. Mr Hart submitted that the way to do this would have been for the Review Panel to find error on the part of Dr Harrington in his path of reasoning, (or absence of reasoning), when deciding an issue of “non-medical determination”, citing Rodger v De Gelder [2015] NSWCA 211 at [109].

56. This ground of review is misconceived, and reliance on Rodger v De Gelder misplaced.

57. As submitted by Ms Gumbert, in AAI Limited trading as GIO v Amos [2024] NSWCA 65, Adamson JA observed that the requirements of procedural fairness are quite different in the context of a review panel assessment when compared to a contested hearing. The rule in Browne v Dunn (1893) 6 R 67 cannot apply to the conduct of a medical examination by a medical assessor. Adamson JA also stated relevantly:

“[61] In these circumstances, it is difficult to accept that the claimant was taken by surprise by the Review Panel’s adverse conclusion, since this was the conclusion for which the insurer contended, as supported by its submissions and documents, and in particular, the clinical notes which recorded the claimant’s presenting histories and contemporaneous symptoms. The Review Panel was not obliged to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J). Further, the Review Panel was entitled to apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision.”

58. The duty to afford procedural fairness did not impose an obligation on the Review Panel to put to Mr Wood that it was going to make a finding on causation adverse to him, or a finding that was different to the assessor Dr Machart. The argument made by Mr Hart misconceives the role of the Review Panel. It was not reviewing Dr Harrington’s decision in that sense. It was making its own fresh medical assessment, as s 63(3A) of the MAC Act required. The Review Panel exercised that function.

Materiality and discretionary refusal

59. Given the Review Panel determined that Mr Wood’s current whole person impairment is 0%, any decision by it about the question of causation is immaterial. I accept the submission of Ms Gumbert that even if causation findings were made in Mr Wood’s favour, no useful result could ensue if the decision was quashed and the matter remitted. This is because the result of the examination of Mr Wood’s lumbar spine made by assessor Dr Harrington, and accepted by the Review Panel, was that there were no findings consistent with anything higher than DRE Category 1 impairment under the relevant guidelines, resulting in an assessment that Mr Wood’s whole person impairment was 0%.

60. This would provide a basis to exercise my discretion to refuse the relief sought in the summons on the basis of futility, but there is no need to make such a finding given that I have rejected all the grounds for review.

Orders

61. I make the following orders:

1. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) r 59.10(2), the time in which the plaintiff may commence these proceedings is extended up to and including 13 September 2024.

2. The proceedings be dismissed.

3. The plaintiff is to pay the costs of the first defendant.

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Endnotes

Amendments

20 May 2025 - Par 45, line 3: replaced the word "charge" with "change".

Decision last updated: 20 May 2025