Wood v Insurance Australia Group Limited trading as NRMA Insurance

[2022] NSWSC 1290

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

4 and 24 August 2022

Date of orders:

06 October 2022

Decision date:

06 October 2022

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1)   The decision of the delegate of the second defendant made on 20 September 2021 dismissing the plaintiff’s application for the medical assessment set out in the certificate of Dr Harrington dated 11 June 2021 to be referred to a review panel for review is set aside.

(2) The matter is remitted to the Personal Injuries Commission for the second defendant to arrange for the plaintiff’s application for the medical assessment set out in the certificate of Dr Harrington dated 11 June 2021 to be referred to a review panel for review, under s 63 of the Motor Accidents Compensation Act 1999 (NSW).

(3)   The first defendant is to pay the plaintiff’s costs of the proceedings up to and including 22 August 2022 and otherwise there is no order as to costs.

(4) Any application by a party to vary order (3) in relation to costs is to be made in accordance with r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords:

ADMINISTRATIVE LAW – Particular administrative bodies – Personal Injury Commission of New South Wales – Application to President to refer a medical assessment to a review panel for review under s 63 of the Motor Accidents Compensation Act 1999 (NSW) – Decision of delegate of the President to dismiss application – Whether jurisdictional error in deciding to dismiss – Submitting appearances by all defendants – Jurisdictional error found

ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Unreasonableness – Whether delegate of the President of the Personal Injury Commission could reasonably have been satisfied that there was no reasonable cause to suspect that the medical assessment was incorrect in a material respect – Whether President’s delegate fundamentally misunderstood the task required to be performed – Submitting appearances by all defendants – Decision legally unreasonable – Misunderstanding of statutory task to be performed.

Legislation Cited:

Motor AccidentsCompensation Act 1999 (NSW), ss 57, 58, 60, 61, 63

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), r 36.16

Cases Cited:

AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166

Insurance Australia Ltd v Marsh [2022] NSWCA 31; 99 MVR 1

Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992

Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308

QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322

The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42

Category:

Principal judgment

Parties:

Joshua Wood (Plaintiff)
Insurance Australia Limited t/as NRMA Insurance (First Defendant)
The President of the Personal Injury Commission (Second Defendant)

Representation:

Counsel:
C Hart (Plaintiff)
Submitting appearance (First Defendant)
Submitting appearance (Second Defendant)

Solicitors:
Evers & Co (Plaintiff)
Sparke Helmore (First Defendant)
Crown Solicitor of New South Wales (Second Defendant)

File Number(s):

2021/353256

Judgment

1. By a summons filed on 13 December 2021, the plaintiff, Joshua Wood, sought judicial review of the decision made on 20 September 2021 by the delegate of the President of the Personal Injury Commission of New South Wales (PIC), the second defendant, under s 63(2B) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act).

2. The decision of which Mr Wood sought judicial review related to his claim arising out of injuries he allegedly suffered as a result of a motor vehicle accident that occurred on 10 June 2015 at Kotara in New South Wales. The first defendant, Insurance Australia Group Limited trading as NRMA Insurance, was the compulsory third party insurer in respect of the vehicle at fault in that accident.

3. It is significant to note at this point that, by the time of the final hearing in this matter on 24 August 2022, both defendants had filed submitting appearances, except as to costs. Accordingly, there was no opposition to the making of the orders sought by the plaintiff. The procedural history of how this came about is as follows.

Relevant procedural history

4. On 9 March 2022, the plaintiff filed an amended summons adding further grounds of review and identifying the second defendant as the President of the PIC, not his delegate.

5. On 10 March 2022, the second defendant filed a submitting appearance, save as to costs.

6. On 19 April 2022, NRMA filed a response to the amended summons setting out the basis on which it opposed the plaintiff’s application for judicial review.

7. On 6 June 2022, the plaintiff filed a second amended summons in which the grounds of review were further refined.

8. On 29 July 2022, NRMA filed its response to the second amended summons opposing the granting of the relief sought by the plaintiff.

9. On 4 August 2022, the matter came on for final hearing before me after the parties had taken appropriate preparatory steps . On that occasion, Mr Hart of counsel appeared for the plaintiff and Ms Dinka of counsel appeared for NRMA. During that hearing, it became apparent that it would be helpful to understand with more clarity the content of the material that was before the delegate of the second defendant when she made the decision which is challenged in the present case. To permit the parties to reach agreement, if possible, on what was relevantly before the delegate or to put on further evidence, if necessary, the hearing of the matter was adjourned. The orders made on 4 August 2022 were:

“1.   Matter is listed for directions at 9:30am on 24 August 2022.

2.   Matter is listed for continuation of hearing on 9 September 2022 at 10:00am.

3.   Parties have liberty to apply on two days’ notice.”

10. On 22 August 2022, despite its prior opposition to the plaintiff’s application for judicial review, NRMA filed a submitting appearance which stated:

“The Insurance Australia Group Limited trading as NRMA Insurance Limited, the first defendant, appears and submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made save as to costs.”

11. On 24 August 2022, at the directions hearing, Mr Hart again appeared for the plaintiff and Mr Cass, solicitor, appeared for NRMA as a courtesy to the Court and noted that his client had recently filed a submitting appearance except as to costs. Thus, although initially there was a contradictor, by 24 August 2022, there was no opposition to the orders sought being made.

12. In the circumstances, it appeared to me that the proper approach was to consider the plaintiff’s application, in light of the evidence adduced and the submissions made orally and in writing, and to take into account the absence of any opposition when determining whether or not to grant any relief.

Background

The motor vehicle accident and injuries

13. On 10 June 2015, Mr Wood was involved in a motor accident as a result of which he claimed that he suffered injuries to his lumbar spine and right hip as well as psychiatric or psychological injury.

14. On 5 February 2016, the plaintiff served his Personal Injury Claim Form.

15. On 5 April 2018, Mr Wood underwent spinal surgery by Dr Sears involving a L5/S1 microdiscectomy and right S1 rhizolysis.

Dispute as to a medical assessment matter

16. A disagreement arose between Mr Wood and NRMA about whether the treatment provided to Mr Wood by Dr Sears was reasonable and necessary in the circumstances and whether such treatment related to the injury caused by the motor accident. By virtue of ss 57 and 58 of the MAC Act, these were thus “medical disputes” to which Pt 3.4 of the MAC Act applied. Those disputes were eventually referred to Medical Assessor Dr Frank Machart, under s 60 of the MAC Act.

17. On 13 February 2020, Dr Machart assessed Mr Wood.

Dr Machart’s Medical Assessment Certificates

18. On 6 May 2020, Dr Machart issued two certificates under s 61(1) of the MAC Act as follows:

“The following treatments, namely:

● Whether the surgery – right L5/S1 microdiscectomy and right S1 rhizolysis undertaken on 5 April 2018 is causally related to the injury sustained in the subject accident.

RELATE TO THE INJURIES caused by the motor accident.”

and

“The following treatments, namely:

● Whether the surgery – right L5/S1 microdiscectomy and right S1 rhizolysis undertaken on 5 April 2018 is causally related to the injury sustained in the subject accident.

are REASONABLE AND NECESSARY in the circumstances.”

19. It appeared from all the circumstances, and I accepted, that although the wording of each of those certificates was infelicitous, it was undoubtedly intended to convey Dr Machart’s assessments that the right L5/S1 microdiscectomy and right S1 rhizolysis related to the injuries caused by the motor accident and were reasonable and necessary in the circumstances.

20. By virtue of s 61(2) of the MAC Act, Dr Machart’s certificates are “conclusive evidence as to the matters certified … in any assessment by the [PIC] in respect of the claim concerned”. Furthermore, as required by s 61(9) of the MAC Act, Dr Machart set out in his certificates the reasons for his findings “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence”.

21. Dr Machart’s reasons included the following:

“History of the Motor Accident

Mr Wood was a poor historian. He had poor recollection of dates or symptoms. He said that his head was ‘scrambled’ on account of the MVA. 10/06/2015 MVA. He was the driver of a utility. He was waiting at traffic lights. His car was rear ended, front car in a line of three. The car was driveable. He managed to complete the trip home.

His Ford ute was apparently assessed as $9,500 worth of damage, was written off by the insurance company, and not repaired.

History of Symptoms and Treatment Following the Motor Accident

Mr Wood experienced lower back pain. Ambulance attended. He was not hospitalised. The lower back pain increased over the following week. He saw a GP about three weeks after the MVA. He saw several doctors. Leg pain developed about 3 ½ years later, right buttock radiating into the foot. There was no additional injury. The pain started to radiate into the left buttock in the middle of 2019.

He had a spinal operation on 05/04/2018, L5/S1 microdiscectomy and right S1 rhizolysis. His mother apparently paid the cost, not paid for by insurance or medical fund. His leg pain was better but not fully resolved.

Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident

None.

Current Symptoms

Pain in the lower back and both buttocks. Pain aggravated by standing and sitting, better when lying down.

He lives on his own. No one apparently does the housework. He is unable to drive comfortably. He is unable to ride a motorbike. He is unable to go to the gym or run.

The severity of the symptoms was not improving.”

22. As to his findings on clinical examination, Dr Machart said:

“LUMBAR SPINE (Lumbosacral)

Diminished movement by half from expected is normal, flexion, extension, lateral flexion, and rotation symmetrical. Straight leg raising was asymmetrical, right Ltd at 50°, and left and 60°, both positive. No abnormal neurological signs. Reflexes were intact at knees and ankles. No sensory loss in the lower limbs. Strength examination demonstrated no asymmetry and was adequate.

Consistency of Presentation

There were no inconsistencies, although the recollection by Mr Wood was self-determined, and not necessarily accurate because of poor memory of events.”

23. Dr Machart then set out a review of the documentation submitted to him. The documentation referred to in his review was not, however, dealt with in date order in Dr Machart’s reasons. In date order, the document review included the following:

“● Ambulance record at the time of the MVA [10 June 2015]. … No record of treatment administered to Mr Wood.

● Attended GP, Dr George, 24/07/2015, six weeks post MVA. No MVA-related complaints, was referred for CT of the lumbar spine.

● 02/10/2015, Document from Dr George, general practitioner. After the MVA there was pain in the back for a short period of time, and back pain on and off. Certified unfit for work on 02/10/2015 to 11/11/2015 for anxiety.

● Report, CT lumbar spine, 29/10/2015. Disc pathology at L4/L5, left L5/S1 paracentral disc protrusion close to the left S1 nerve root. No displacement.

● 29/10/2015, Report CT lumbar spine. Non-compressive disc pathology at L4/L5, left paracentral disc protrusion at L5/S1 impacting on nerve roots.

● Referred to see Dr Ferch for backache, 20/11/2015.

● MRI of lumbar spine report, 25/11/2015. Disc degenerative changes, maximal at L4/L5 and L5/S1, without neurological compression, central disc herniation at L4/L5.

…

● CTP Medical Certificate, Dr George, 29/01/2016. Diagnostic features of back pain for two minutes after the MVA, now constant back pain.

● Dr Kuru, orthopaedic surgeon, Assessment 08/03/2016. Referred from Dr George MVA. Pain in the back for few minutes, then settled, then pain four days later, settled, then progressively more evident. Diagnosed degenerative disc disease.

● 08/03/2016, Dr Kuru. Assessment MVA 6 months before. Back pain. No symptoms in the legs. Diagnosed non-specific back pain, related to underlying degenerative disc disease.

● 16/06/2016, Dr Roath, Centrelink Medical Certificate. Lower back pain due to bulging disc, cannot bend or stand long hours. To see surgeon.

● Assessment, Dr Ghabrial, orthopaedic surgeon, 01/11/2017. Injury to lower back on 10/06/2015 in an MVA. Diagnosed disc herniation.

● Dr Kleinman, 22/11/2017, IME. Injury to the lower lumbar spine on 10/06/2015. Did not diagnose right hip injury as a result of the MVA.

● Dr Dunkley, orthopaedic surgeon, Assessment 14/12/2017. Right buttock pain. MVA. Saw Dr Kuru for back problems. More recently different and more acute. MRI showed large L5/S1 disc. Buttock pain related to this pathology.

● 05/03/2018, Dr Sears. MVA 2-1/2 years before. Lower back fluctuating in severity, pain in right buttock 8 months ago, more severe 3 months, right leg pain.

● Assessment, Dr Sears, 05/03/2018. Back pain. Right leg pain. MVA 2-1/2 years earlier. Fluctuating pain. Recommended microdiscectomy, conducted on 05/04/2018 at the Sydney Adventist Hospital.

● MRI lumbar spine, 12/03/2018. Small right paracentral disc extrusion at L5/S1, causing moderate to marked right lateral stenosis, compromising the right S1 nerve root.

● 12/03/2018, Dr Sears Assessment Disc bulge compressing S1 nerve root, noting that ‘this pain has now been present for some eight months….’, suggested operative management.

● Operation report, 05/04/2018. L5/S1 microdiscectomy on the right and rhizolysis at S1 by Dr Sears at Sydney Adventist Hospital.”

24. After reviewing that documentation, Dr Machart included in his reasons for his certificates the following under the heading “Comment”:

“– There was no evidence of back pain or injury to the back prior to the MVA.

– There is documentation of back ailment following the MVA, 24/7/15, referred for CT lumbar spine.

– Mr Wood did not seek medical attention for several weeks after the MVA.

– GP, Dr George, organised imaging two months after the MVA.

– There was progression of the back symptoms subsequently over 3 years to right-sided sciatica, diagnosed as L5/S1 disc protrusion on the right, not evident on the initial MRI.

● Additional information on vehicle damage as per my request

– Quote repair 3/4/20 was $10,489. Insured vehicle right off. Middle vehicle picture is not very clear. Not a lot of damage evident.

– Comment: $10,000 repair quote I consider consistent with causing trauma to occupant.”

25. In section 6 of his reasons under the heading “Determinations”, Dr Machart said:

“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 accident 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 that 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 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.”

NRMA application for review

26. In June 2020, NRMA applied under s 63(1) of the MAC Act for Dr Machart’s medical assessment to be referred to a review panel for review. At this time, s 63(3) provided that such a referral should be made “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”.

27. On 6 August 2020, the proper officer dismissed NRMA’s review application under s 63(3). Accordingly, Dr Machart’s certificates remained “conclusive evidence as to the matters certified … in any assessment … in respect of the claim concerned”.

Claims assessment

28. After 6 August 2020, Mr Wood’s claim proceeded to claims assessment under the MAC Act.

29. On 9 September 2020 the sixth preliminary conference in the General Assessment stream was conducted by way of telephone conference with the parties’ representatives by Claims Assessor Foggo. The claims assessor’s report of that preliminary conference included:

“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.

…”.

30. The plaintiff contended and NRMA did not dispute, and I accepted, that by the time of the sixth preliminary conference and thereafter:

1. there was no disagreement between the plaintiff and NRMA that as a result of the motor accident Mr Wood suffered a spinal injury by way of initial disruption of the disc capsule, which was not static and over time caused a disc protrusion on the right at L5/S1 leading to various symptoms;

2. there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis undertaken on 5 April 2018 were causally related to the spinal injury sustained in the subject motor accident;

3. there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis were reasonable and necessary treatment; and

4. the only remaining medical dispute was whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%.

31. Thus, the only medical dispute that was required to be referred to a medical assessor for the purposes of the assessment of Mr Wood’s claim by the PIC was whether the degree of permanent impairment as a result of Mr Wood’s injury caused by the motor accident was greater than 10%. Furthermore, since there was no disagreement between Mr Wood and NRMA, by this time, as to causation of his spinal injury in the motor vehicle accident, the issue of causation of that injury was not referred to Medical Assessor Dr Christopher Harrington for assessment. In relation to the spinal injury, therefore, Dr Harrington was only required to assess the degree of permanent impairment as a result of that injury and to determine whether it was greater than 10%. This was recognised by Medical Assessor Harrington in his certificate dated 11 June 2021 where the dispute which had been referred to him for assessment was acknowledged in numbered paragraph 1 of his reasons to be only “the degree of permanent impairment under section 58(1)(d) of the Act”.

Dr Harrington’s Medical Assessment Certificate

32. On 11 June 2021, Dr Harrington issued a certificate under s 61(1) of the MAC Act which certified as followed:

“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.”

33. Dr Harrington’s reasons, which were incorporated into the certificate, included the following:

“

Background

1. There is a dispute between Joshua Wood and the Insurer about:

● the degree of permanent impairment under section 58(1)(d) of the Act.

…

10. History of symptoms and treatment following the motor accident

He complained of back pain, left leg pain and left sided loin pain although he didn’t mention anything to his GP for about 9 months, even though he claims that he couldn’t get back to work as a labourer because of his ongoing symptoms.

He eventually reported his complaints in the accident to Dr Joshua George, some six weeks later. He eventually had a scan of his back however records indicate that Mr Wood was not incapacitated for work as a result of injuries sustained in the subject motor accident.

He eventually reported right leg pain which sounds pretty classical of sciatica. Dr George referred him to Dr Rob Kuru for opinion and management of ongoing back pain.

He has been treated with physiotherapy.

He presented to the John Hunter Hospital with significant pain in the right hip and pelvis on 22 November 2017. The triage notes suggest a history of symptoms for 4 months, which is attributed to his motor accident over 2 years earlier.

He underwent a CT guided injection into the right S1 foramen on 7 December 2017. He was referred to Dr Sears in Sydney who performed an L5/S1 discectomy and right S1 rhizolysis (self-funded) at Sydney Adventist Hospital on 5 April 2018. He says this helped is leg pain but didn’t really change his back pain.

He has had a myriad of treatment since 2016, none of which has made much difference.”

…

12. Current symptoms

He complains of ongoing back pain and left leg pain. He also has some abdominal problems.

He lives by himself. He has trouble with everyday activities. He used to enjoy cooking although he has lost interested in this since the accident. He tells me that he has been suicidal for the last 6 years. He says that he doesn’t have any mates. He doesn’t play a sport or have any hobbies.

…

13. Current and proposed treatment

He has apparently been on Oxycondone for 12 months but has recently ceased this medication.

He has apparently been investigated for bowel pain and secondary causes from long-term narcotics.

…

Clinical Examination

…

15. Lumbar spine (lumbosacral)

There is a small well-healed scar from his discectomy by Dr Sears. He stands with a straight spine and a level pelvis. He walks without a limp. Movements of his back is restricted in all directions. I couldn’t detect any objective neurology in the lower limbs. His power, reflexes and sensation were normal and symmetrical.

He describes left sided loin pain, which is aggravated by lateral bending to the right i.e. stretching that left side. He is not locally tender. There are no lumps or swelling. He doesn’t really describe abdominal pain.

…

17. Summary of the documentation

Mr Wood has been extensively treated and investigated for injuries he claims are related to a minor rear-end accident on 10 June 2015. There is no explanation as to why he delayed seeking treatment some 9 months after the accident.

He may well have developed sciatica which he has associated to a minor car accident in June 2015 however it is not consistent with a pathological process.

He certainly blames everything on the accident including his mental health psyche and his musculoskeletal conditions.

I have read the reports from Dr Sears however I do not believe a pathological process for his symptoms can be attributed to the accident in June 2015.

Based on the information provided, I do not believe the treatment by Dr Sears or his current presentation complaints is attributed to the subject motor vehicle accident in June 2015.

…

If Mr Wood suffered a soft tissue injury of the lumbar spine, ample time has certainly passed for this to resolve. I do not believe the development of possible sciatica some 9 months later is associated to the subject motor vehicle accident.

…

18. Summary of relevant radiological and medical imaging and other investigations

Mr Wood did not bring any films to the assessment.

The CT report dated 29 October 2015 shows pathology at L4/5 however the reported symptoms pertain to right leg pain sometime later, so I’m not sure whether the changes are consistent with a minor soft injury.

…

Permanency of Impairment

…

Given the history, I believe any injury caused by the subject motor vehicle accident has resolved and he has reached maximum medical improvement.

Determinations

Permanent impairment

19. Causation and reasons

Mr Wood was involved in a motor vehicle accident on 10 June 2015 when his vehicle was rear-ended at low velocity.

I do not believe the subsequent diagnosis, investigations and treatment for back pain or right leg sciatica is causally related to the subject accident.

20. Diagnosis and reasons

Mr Wood was diagnosed with sciatica and underwent a right L1/S1 [sic] discectomy by Dr Sears in April 2018.

I do not believe there is a causal link between the diagnosis/treatment and the previous minor motor vehicle accident.

Summary of injuries referred for assessment

21. The following injuries caused by the motor accident have resolved:

● Lumbar spine

● Right leg

Conclusion

Degree of permanent impairment caused by the motor accident

22. 0%”.

Application for review of Dr Harrington’s certificate

34. On 7 July 2021, Mr Wood applied under s 63(1) of the MAC Act to the President to refer Dr Harrington’s medical assessment to a review panel for review.

35. Mr Wood’s grounds for contending that there was reasonable cause to suspect that the medical assessment of Dr Harrington was incorrect in a material respect can be summarised as follows:

1. The certified findings of Dr Machart were of continuing effect and there was, in effect, no issue or an issue estoppel in relation to whether the subject injuries had been caused by the subject motor accident;

2. Dr Harrington failed to consider relevant evidence and provide adequate reasons, and

3. Dr Harrington fell into jurisdictional error because he “impermissibly treated the absence of contemporaneous medical records as determinative” and in that regard there was an error in the history.

36. In accordance with s 63(2B) of the MAC Act, the President was required to arrange for the 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”.

The decision under review

37. On 20 September 2021, Ms Tami O’Carroll, the delegate of the President of the PIC, determined that she was:

“not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect. Accordingly, the review application is dismissed.”

38. More specifically, the President’s delegate considered each of the grounds in some detail. As to the first ground that there was reasonable cause to suspect that the medical assessment was incorrect because Dr Machart’s certified findings were of continuing effect or any issue estoppel arose, the President’s delegate’s reasoning included the following:

“9. The medical assessment matter referred to Assessor Harrington for determination was whether the degree of permanent impairment of the claimant as a result of the injury caused by the motor accident is greater than 10%. This task necessarily required a determination as to what injuries were caused by the accident. In the circumstances, where Assessor Harrington found injury to the lumbar spine and right leg were caused by the accident, consideration of whether the claimant’s diagnosed sciatica and subsequent treatment in the form of a discectomy performed in April 2018 were causally related to was also required in order for the Assessor to determine the degree of impairment arising from those injuries.

10. Whilst Assessor Machart’s certification in relation to the treatment dispute is conclusive evidence as to these matters, his findings were not binding on Assessor Harrington when determining the issue of permanent impairment. Rather, Assessor Harrington was required to form an opinion as to the medical matters referred based on his own clinical findings, views of the history and medical evidence and utilising his own experience and expertise as a qualified medical Assessor, which I consider the Certificate supports that he did. I consider this approach consistent with the requirements of the Guidelines and the Act.

11. I am not satisfied that any issue estoppel arose in the circumstances which would prevent the Assessor from carrying out his statutory task, which as noted above, required Assessor Harrington to make a determination as to what injuries were caused by the subject accident, in order to ultimately determine whether permeant impairment is greater than 10%. I am not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect on the basis that the ‘Certified findings of [Assessor Machart] are thus of continuing effect’ or because any issue estoppel arose.”

39. As to the second ground that there was reasonable cause to suspect that the medical assessment was incorrect because Dr Harrington failed to consider relevant evidence and provide adequate reasons, the President’s delegate said:

“15. Assessor Harrington notes at page 2 of the Certificate that he ‘considered the documents provided in the application and the reply. It is common ground between the parties that the Certificate of Assessor Machart was annexed to the Application. On this basis, it appears that the Certificate was therefore considered as part of the Application.

…

20. Noting the above [quotations from the reasons of Assessor Harrington], I consider that the Assessor provides a path the reasoning which led him to conclude that the diagnosis of sciatica and treatment for back pain and sciatica is causally related to the accident. Further, I consider that that he provides adequate reasoning to expose the reasoning that led him to the opinions formed on the matters referred for assessment – including opinions as to the injuries caused by the accident and the assessment of impairment arising from those injuries.

21. Whilst I note that the claimant submits that Assessor Harrington failed to refer specifically to contrary findings of Assessor Machart, I do not consider that he was obliged to do so. The Assessor was required to determine and provide adequate reasoning regarding the issues to be determined in the matter, I consider that a reading of the above and the remainder of the Certificate supports that he discharged that duty. In doing so, he was not required to comment on the correctness of other medical opinions; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

…

23. I am not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect on the basis that Assessor Harrington failed to consider relevant evidence and provide adequate reasons.”

40. As to the third ground that there was reasonable cause to suspect that the medical assessment was incorrect because Dr Harrington impermissibly treated the absence of contemporaneous medical records as determinative and there was an error in the history, the President’s delegate’s reasons included the following:

“28. Further, whilst I note that the claimant asserts that Assessor Harrington determine causation based solely on a lack of contemporaneous evidence, I consider a reading of the certificate as a whole, and in particular the extracts from the Certificate above, indicate that the fact the assessor found that the collision was ‘minor’ was also a factor which was germane to his decision.

29. I am not satisfied that that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect on the basis that jurisdictional error arises as the Assessor ‘impermissibly treated the absence of contemporaneous medical records as determinative or that there was a factual error in relation to the history’.”

Judicial review application

41. As noted above, the plaintiff has sought judicial review of the decision made on 20 September 2021 by the delegate of the President. The prayers for relief in the second amended summons included:

“1. A declaration that the decision of the Second Defendant dated 20 September 2021 (‘the gateway decision’), including reasons, are affected by error of law on the face of the record and by jurisdictional error and ultra vires, together with an order in the nature of certiorari, quashing that decision;

2. An order that the Second Defendant deal with the application for review of the MAC in accordance with law;

3. Alternatively, an order in the nature of mandamus that the court remit the matter to the Second Defendant for referral to the Review Panel constituted under 62(1)(b) Motor Accidents Compensation Act 1999 (NSW) … For determination according to law;

4. Such further or other order, as the Court deem fit; and,

5. The First Defendant pay the Plaintiff’s costs.”

42. As was also noted above, the granting of such relief, except as to costs, was not opposed by any defendant. In these circumstances, consideration of the application can be dealt with more shortly than might otherwise have been the case.

Grounds

43. The grounds relied on by the plaintiff were somewhat discursive but included, inter alia:

“3. The Second Defendant in her reasoning, misunderstood and misapplied the delegated ‘gate-keeper’ power. She should have, in the proper exercise of her delegated power, found ‘reasonable cause to suspect’ error by Dr Harrington. The decision is legally unreasonable and should be set aside: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

…

10. The Second Defendant, in so far she decided, inter alia, that the Medical Assessment required ‘consideration [by Dr Harrington] of whether the claimant’s diagnosed sciatica and subsequent treatment in the form of a discectomy in April 2018 were causally related to [the accident] was also required… failed to observe that no substantive dispute inter partes was before Dr Harrington. […] Dr Harrington’s finding, adverse to the Plaintiff in the MAC on that issue of causation, should have alerted the Second Defendant to the jurisdictional error by Dr Harrington and should have, if acting within her authority, caused her to form an opinion that there was reasonable cause to suspect error. Failing to observe the legal nature of the error by Dr Harrington and then not acting on that error, demonstrates she misunderstood the limits of Dr Harrington’s authority and failed to exercise the powers conferred on her under section 63. This is ‘jurisdictional error’, ultra vires and entitles the Plaintiff to have the respective MAC and decision of the Second Defendant quashed and remitted for determination according to law.”

44. These grounds are to be considered in light of the relevant statutory provisions at the relevant times concerning medical assessments under Pt 3.4 of the MAC Act, which comprises ss 57 to 64.

Relevant statutory provisions

45. Section 58(1) provided that Pt 3.4 applies to “a disagreement between a claimant and an insurer” about the following “medical assessment matters”:

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

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

…

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

46. By virtue of s 58(2), Pt 3.4 also relevantly applied to “any issue arising about such a [medical assessment] matter … in connection with the assessment of a claim by the [PIC]”, as in the present case.

47. “Medical dispute” is defined in s 57 as meaning “a disagreement or issue to which this Part applies”. The word “issue” in s 57, given the relevant text of that section and its use in s 58 and the context of Pt 3.4 as a whole, naturally refers to some aspect of a medical assessment matter that is in dispute or in issue, in the sense that there is no agreement about that aspect and it is something that remains to be determined.

48. If, therefore, a claimant and an insurer agreed about the whole or part of a medical assessment matter, there is in that regard no matter or no issue to which Pt 3.4 would apply. This is confirmed by the terms of ss 60, 61 and 63 of the MAC Act. Section 60 established that it was not the medical assessment matter which was referred for medical assessment but the “medical dispute”. Section 60 relevantly contained the following:

“60 Medical assessment procedures

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

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

49. Section 61 deals with the status of medical assessments and includes the following provisions:

" 61 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

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

…

(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.

…”. (Emphasis added.)

50. The wording of s 61(1) is a little confusing as it describes, consistently with s 60(1), the thing which is referred for assessment as a “medical dispute” but it also states that a certificate is to be given “as to the matters [rather than the medical dispute] referred for assessment”. The expression “medical dispute” is defined in s 57 as meaning “a disagreement or issue to which this Part applies” and s 58(1) describes the relevant types of “disagreement” and s 58(2) describes the relevant types of “issue”. Taking into account this context, the expression “the matters referred for assessment” in s 61(1) should be construed as referring to the particular disagreement about, or issue arising about, one of the matters set out in s 58(1)(a), (b) or (d), which constitutes the relevant medical dispute referred for assessment under s 60(1). In other words, what is referred for assessment and what is required under s 61(1) to be the subject of a certificate is not the general matter of the type referred to in s 58(1)(a), (b) or (d) but rather is the specific disagreement or issue concerning such a matter in the particular case. Accordingly, if there is no dispute between the parties as to whether certain injuries were caused by a motor accident but there is a dispute as to whether the degree of impairment as a result of those injuries is greater than 10%, the medical assessor is only required to give a certificate as to whether the degree of impairment is greater than 10% and not as to causation.

51. Although there is no right of appeal from a medical assessment certificate given under s 61(1), s 63 establishes that a party to a medical dispute may seek a review of a medical assessment certificate in the following terms:

“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.

…

(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.

…

(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.

…”. (Emphasis added.)

52. The fact that the right to seek a review of a medical assessment is conferred by s 63(1) on a “party to a medical dispute” also serves to confirm that the subject matter of any medical assessment certificate is the “medical dispute”, that is that aspect of the matter of the type referred to in s 58(1)(a),(b) or (c) about which there is a disagreement or issue, not the whole matter as described in those paragraphs. This approach is consistent with that adopted by the Court of Appeal in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 (Meeuwissen) at [24] (Basten JA, Beazley JA and Sackville AJA agreeing) where the expression “all the matters with which the medical assessment is concerned” in s 63(3A) was construed as referring to “all of the matters in dispute” and “the whole of the matters in dispute”.

53. By virtue of s 63(2), the only permitted ground of review is that the medical assessment was “incorrect in a material respect” but, if the President refers the assessment to a review panel under s 63(2B), s 63(3A) requires the review panel to make a new assessment of all the matters in dispute, not just to reassess that aspect of the medical assessment alleged to be incorrect.

54. Section 63(2B) confers on the President a “gate keeper” function so that an application for review of a medical assessment is only to be referred to a review panel, to be dealt with in accordance with s 63(3A), “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”.

55. Although it was President’s delegate who actually made the decision in this case, in considering this application for judicial review nothing turns on whether the decision was made by the President or his delegate. As a result, it is not necessary to differentiate between the President of the PIC and his delegate in these reasons and I shall generally only refer to the President or the decision maker and not to the President’s delegate in what follows.

Consideration

56. A number of general principles concerning the application of s 63(2B) have been established in Meeuwissen.

1. What must be “incorrect in a material respect” is “the medical assessment” not the certificate and, in addition, the subject matter of the medical assessment is the “medical dispute”: at [19].

2. To describe a medical assessment as “incorrect in a material respect” does not necessarily require that the certificate would, or might, have been different, absent the error: at [19].

3. The power conferred on the President is not discretionary, once the requisite state of satisfaction is achieved, the President “is to” arrange for the application to be referred: at [21].

4. The matter of which the President must be satisfied is not that the medical assessment was incorrect in a material respect, but only that “there is reasonable cause to suspect” that it was; such language is inconsistent with the President being expected, let alone required, to carry out an assessment or calculation, as opposed to identifying possible error: at [22].

57. Relevantly for the present case, the parties to a “medical dispute” under the MAC Act are entitled to an assessment in respect of that dispute reached in accordance with a proper understanding of the statutory scheme and the facts: Meeuwissen at [23]. Where an important fact has been ignored, the medical assessment has not been properly undertaken and the statutory right subverted. Consequently, where there is reasonable cause to suspect that a significant or material error has been made, fairness suggests that the review should be allowed to proceed: Meeuwissen at [23].

58. The condition in s 63(2B) which must be satisfied before a medical dispute can be referred to a review panel turns on the opinion or state of satisfaction of the President. Such an opinion is amenable to judicial review on conventional administrative law grounds: Insurance Australia Ltd v Marsh [2022] NSWCA 31; 99 MVR 1 at [14] (Basten JA) citing Leeming JA in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166 (Chan) and QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (Miller).

59. Since it is a matter for the President whether the required state of satisfaction has been reached and not one to be determined by this Court afresh, judicial review proceedings such as the present may be somewhat confined: Miller at [36]. It is sufficient for present purposes to observe that the available grounds of review in this type of case include:

1. that the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Miller at [36] citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 (SGLB) at [38] (Gummow and Hayne JJ);

2. the opinion of the President was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation and, consequently, the required opinion was not actually formed: Miller at [36] citing The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432; [1944] HCA 42; (Latham CJ); and

3. other forms of jurisdictional error.

60. Leeming JA held, in a similar context, in Chan at [28]:

“Despite that being common ground between the parties, and despite its being reproduced by the primary judge in his reasons for judgment, it is desirable to observe that the task for the court on review is confined to whether the opinion has been properly formed according to law. The issue is not whether the proper officer was right or wrong to hold the opinion, as it might be if an appeal lay by way of rehearing. The issue is whether the opinion has been shown to be vitiated on administrative law grounds. That might be because it is based on a misconstruction of the legislation, or because it paid regard to something to which a statute prohibited regard being had, or because it failed to pay regard to something to which statute insisted regard must be had, or because it was ‘irrational, illogical and not based on findings or inferences of fact supported by logical grounds’. But it is not sufficient merely to establish ‘error on the face of the record’.”

61. Turning to the grounds of review relied upon by the plaintiff, the third ground raised, in substance, the issue of whether the decision to refuse to refer the medical assessment to a review panel was the result of the decision maker misunderstanding the gatekeeper function conferred by s 63(2B) and making a decision which was legally unreasonable. The tenth ground of review raised a related issue of whether the decision maker, insofar as she decided that Dr Harrington’s medical assessment required him to consider whether the claimant’s diagnosed sciatica and subsequent treatment in April 2018 were caused by the accident, failed to observe that no substantive dispute inter partes as to causation was before Dr Harrington and thus misconceived the task she was required to perform and addressed the wrong question.

62. At the sixth preliminary conference before Claims Assessor Foggo, both Mr Wood and NRMA proceeded on the basis that Dr Machart’s certificate would not be challenged and the conclusions reached by Dr Machart were no longer in dispute. Consequently, after that conference and as noted above:

1. there was no disagreement between the plaintiff and NRMA that as a result of the motor accident Mr Wood suffered a spinal injury by way of initial disruption of the disc capsule, which was not static and over time caused a disc protrusion on the right at L5/S1 leading to various symptoms including sciatica and back pain;

2. there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis undertaken on 5 April 2018 were causally related to the spinal injury sustained in the subject motor accident;

3. there was no disagreement that the microdiscectomy at L5/S1 and right S1 rhizolysis were reasonable and necessary treatment; and

4. the only remaining relevant medical dispute was whether the degree of permanent impairment as a result of that spinal injury was greater than 10%.

63. It followed that the “medical dispute” referred to Dr Harrington was only whether the degree of permanent impairment, as a result of the spinal injury which was accepted as having been caused by the motor accident and which required treatment by way of the microdiscectomy at L5/S1 and right S1 rhizolysis, was greater than 10%. Dr Harrington’s certificate did not, however, deal with that injury but only other soft tissue injury to the lumbar spine and right hip. The certificate did not deal with the correct injury because Dr Harrington formed the view that the injury which required treatment by way of the microdiscectomy at L5/S1 and right S1 rhizolysis was not caused by the motor accident, even though there was no dispute or issue between the parties as to that fact, as previously certified by Dr Machart.

64. These causes to suspect that Dr Harrington’s medical assessment was incorrect in a material respect were, in substance and effect, raised in the grounds relied on by Mr Wood in his application for review. The decision maker who considered the application for review rejected these grounds. However, her conclusion that these grounds provided no basis for being satisfied that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect proceeded on at least two misconceptions, namely:

1. 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

2. that Dr Machart’s certificate in that regard, which had been accepted by the parties and was not challenged, was irrelevant.

65. As a result of these misconceptions, the decision maker fundamentally misunderstood the task required to be performed, in this case, when considering whether to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect. The question which she addressed, in effect, 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. This was incorrect since Dr Harrington was not required to form any view as to causation because that issue was not in dispute between the parties and had not been referred to Dr Harrington. As a result of the misconceptions and addressing the wrong question, the decision maker 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 was not referred to him for assessment.

66. Alternatively, the conclusion that the decision maker was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect can properly be characterised as being so unreasonable, in the circumstances outlined above, that no reasonable decision maker performing the required statutory task having regard to the provisions of Pt 3.4 of the MAC Act could have come to it.

67. Accordingly, I uphold the application for judicial review on the third and tenth grounds of review.

68. It is thus not necessary to deal with any other grounds of review. Nonetheless, it can be observed that it is difficult to perceive how a decision maker, acting reasonably, could not have been satisfied that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect in a material respect in light of:

1. Dr Harrington’s failure to refer to and explain why the evidence of the cost of repairing the damage to Mr Wood’s vehicle as a result of the motor accident and the other relevant circumstances did not establish, as Dr Machart found, that the accident caused trauma and “initial disruption of disc capsule, which over time caused a disc protrusion” which was treated by way of the L5/S1 microdiscectomy and right S1 rhizolysis, if the issue of causation had been referred to Dr Harrington for assessment;

2. Dr Harrington’s erroneous finding that Mr Wood “did not mention anything [in relation to complaints of back pain, left leg pain and left sided loin pain] to his GP for about 9 months” when: (a) the documentation summarised by Dr Machart (quoted at [23] above); (b) Dr Harrington’s own comment that Mr Wood “eventually reported his complaints in the accident to Dr Joshua George, some six weeks later”; and, (c) his being referred for a CT scan and MRI well before 9 months after the motor accident, demonstrated that mention had been made of back pain earlier than 9 months after the motor accident.

Discretion and orders

69. Although the conclusion that the decision of the President’s delegate was affected by jurisdictional error has been reached, the Court still has a discretion whether to grant relief by way of an order in the nature of certiorari under s 69 of the Supreme Court Act 1970 (NSW): Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] (Sackville AJA, Leeming JA and Adamson J agreeing).

70. As has been noted above, however, there was no opposition to the making of any of the orders sought by the plaintiff, except as to costs, and there does not appear to me to be any reason why the discretion should not be exercised to make an order in the nature of certiorari as sought by the plaintiff. Furthermore, in the absence of any opposition and since it would have been unreasonable to reach any view other than that there was reasonable cause to suspect that Dr Harrington’s medical assessment was incorrect in a material respect, the appropriate consequential order to make is an order of the type sought in prayer 3 in the second amended summons.

71. Finally, given that the President, the second defendant, filed a submitting appearance at the outset, it is not appropriate to make any costs order against him. The first defendant, NRMA, did not, however, file a submitting appearance until 22 August 2022. Prior to that date, NRMA had actively defended the proceedings. Since the plaintiff has been successful, it appears to me that costs should follow the event up to and including 22 August, but NRMA should have the benefit of ceasing their opposition to the relief sought being granted after 22 August 2022. It is noted that in the plaintiff’s written submissions an application for a special costs order is foreshadowed. If any such order is to be sought that can be done in accordance with r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

72. For all these reasons, the orders of the Court are:

1. The decision of the delegate of the second defendant made on 20 September 2021 dismissing the plaintiff’s application for the medical assessment set out in the certificate of Dr Harrington dated 11 June 2021 to be referred to a review panel for review is set aside.

2. The matter is remitted to the Personal Injuries Commission for the second defendant to arrange for the plaintiff’s application for the medical assessment set out in the certificate of Dr Harrington dated 11 June 2021 to be referred to a review panel for review, under s 63 of the Motor Accidents Compensation Act 1999 (NSW).

3. The first defendant is to pay the plaintiff’s costs of the proceedings up to and including 22 August 2022 and otherwise there is no order as to costs.

4. Any application by a party to vary order (3) in relation to costs is to be made in accordance with r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

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Decision last updated: 06 October 2022