AAI Limited t/as GIO v Luk [2022] NSWSC 1007 | Case summary

Supreme Court of NSW|2022-07-29|Before: Lonergan J

Judgment

AAI Limited, the insurer, seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside or declaring invalid determinations made by a Delegate of the second defendant on 21 December 2021 and 30 March 2022. These determinations arise from the insurer's application for a further medical assessment of injuries sustained by Ka Wai Luk, the first defendant.
The Summons filed on behalf of the insurer on 26 April 2022, supported by the affidavit of Mr Julian Kenda affirmed 17 May 2022, sets out the bases for the relief sought. In short, it is asserted, correctly, that the decision(s) of the Delegate contained both jurisdictional error and error on the face of the record.
The issues can be dealt with in short form as the defendants filed submitting appearances.
Given that I am exercising this Court's jurisdiction pursuant to of s 69 of the Supreme Court Act, it is appropriate that I provide a judgment setting out my reasons for making the orders sought despite the submitting appearances.

Background, Evidence and Determinations of the Delegate, Ratula Gupta, on 21 December 2021 and 30 March 2022

Mr Luk claimed damages for injuries he sustained in a motor vehicle accident on 30 July 2018. AAI is the CTP insurer of the vehicle at fault.
There was a dispute between Mr Luk and AAI as to whether his injuries were minor under s 1.6 of the Motor Accident Injuries Act 2017 (NSW) ("the Act").
On 11 June 2019, Dr Perla, certified under s 7.23(1) of the Act that Mr Luk's low back injury was not a minor injury. The report does not state whether he personally reviewed the MRI and CT films that were provided rather than just relying upon the reports that came with the films. He concluded that the low back injury was a "disc extrusion with radiculopathy".
Dr Keller, Occupational Physician, reviewed Mr Luk on 17 October 2019 and in a report dated 25 October 2019 to the insurer, raised a question mark over Mr Luk's allegation that he was unable to return to work as a chartered accountant and referred to some inconsistent restriction of movement in the lower back, unexplained altered sensation in the left foot and unexplained weakness in the left ankle.
On 5 March 2020 Dr Michael Coroneos, Neurosurgeon, reviewed Mr Luk for the insurer. In his report he outlined a detailed physical examination and referred to the MRI films and his interpretation of them. He commented that on review of Mr Luk's GP's records, there is reference by that GP in August 2018 of a complaint of problems with Mr Luk's right lower limb in the nature of "funny feelings" and weakness. He said that this suggested to him that the findings on MRI regarding the lower back were actually related to spondylosis, not injury. He too raised a question mark over why Mr Luk had not returned to work. He concluded that Mr Luk may have experienced a cervical and lumbar soft tissue strain in the motor vehicle accident, but from a neurosurgical perspective, the effects of that had ceased.
In May and September 2020, pursuant to instructions from the insurer, surveillance was conducted of Mr Luk. The surveillance suggests that there is inconsistency between the way Mr Luk behaves when he is engaging in medical assessments as opposed to his normal activities.
On 14 May 2021 the insurer lodged an application for further assessment of the dispute regarding the medical assessment matter pursuant to s 7.24(2) of the Act and Regulation 13 of the Motor Accident Injuries Regulation 2017 (NSW).
The bases cited for this request for further assessment were first, the report of Dr Coroneos that suggested that the imaging of the lumbar spine indicated that the changes seen were degenerative rather than traumatic, and second, that surveillance footage showed Mr Luk had greater capacity than that demonstrated to the Medical Assessor Dr Perla.
On 22 December 2021 the Delegate made a decision dismissing the insurer's application. I have without hesitation reached the view that the decision is patently wrong because it applied the wrong test at law.
For reasons that are unexplained, that decision, although dated December 2021, was not provided to the insurer until February 2022.
On 23 February 2022 the insurer made an application to the Delegate to withdraw and remake the decision in accordance with the principles set out in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11.
On 30 March 2022 the Delegate issued a further decision refusing to review the earlier decision.
An extension of time is sought to lodge the judicial review proceedings in respect of the first decision. The reasons for delay are clear. It is necessary to first exhaust existing remedies - (Rodger v Dr Gelder (2015) 71 MVR 514; [2015] NSWCA 211 - which included requesting the Delegate to revisit the decision made in December 2021. Further, that initial decision was provided very late to the insurer - a delay of about six weeks. No position was taken in opposition to the extension of time sought and I grant the necessary extension.

The basis for seeking judicial review

The insurer contended that the errors it has identified in the grounds in the Summons constitute errors of law on the face of the record and/or jurisdictional errors. They are articulated as follows: (i) The December 2021 Decision: 1. The insurer's application was made on the basis of "additional relevant information" pursuant to Regulation 13(1). 2. The Delegate was required to consider and form an opinion, in accordance with s 7.24(5) of the Act, as to whether she reached the state of satisfaction that the material relied upon by the insurer was additional relevant information that was capable of having a material effect on the outcome of the previous assessment, pursuant to Regulation 13(2). 3. In doing so, the Delegate was required to approach her task in the way set out by the Court of Appeal in Jubb v Insurance Australia Limited [2016] NSWCA 153 ("Jubb"). 4. Pursuant to Jubb, the material relied upon by the insurer was not prevented from being ''additional relevant information" merely by reason of the fact that it was substantially based upon material that was before the original Medical Assessor or that related to issues that had already been considered by the original Medical Assessor. 5. The Delegate expressly relied upon the decisions of Singh v Motor Accidents Authority of NSW (No. 2) [2010] NSWSC 1443 ("Singh (No. 2") and McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434 ("McCosker"), which had espoused a narrower test of what may constitute "additional relevant information" than the test that was later expounded by the Court of Appeal in Jubb. 6. The Delegate applied an incorrect test of what constitutes "additional relevant information" in that she found that expert opinion that was based on the same material that was before the original Medical Assessor was prohibited from constituting additional relevant information, instead of applying the correct legal test that the material may in the exercise of her discretion constitute additional relevant information depending on the cogency of the reasons for the opinion expressed (per Jubb). This was an error of law on the face of the record. 7. In asking herself the wrong question, failing to apply the correct legal test and falling to perform her task according to law, the Delegate has also constructively failed to exercise her Jurisdiction, and committed Jurisdictional error. 8. As a result of the above errors, the first decision is void and should be quashed. (ii) The March 2022 Decision: 1. The second decision is invalid because it relies for its validity on the first decision having been made according to law. On the basis that the first decision is void for legal error, the second decision should also be quashed.

Decision

The Delegate was required to consider and form an opinion in accordance with s 7.24(5) of the Act as to whether she reached the state of satisfaction that the material relied upon by the insurer was additional relevant information that was capable of having a material effect on the outcome of the previous assessment pursuant to Regulation 13(2).
The Delegate did not do so. She failed to take into account properly or at all the test to be applied as set out in the decision of the NSW Court of Appeal in Jubb. As a result of this failure, there is both jurisdictional error and error on the face of the record.
Jubb revisited the more narrow construction of the relevant test applied by Rothman J in Singh v Motor Accidents Authority of NSW (No. 2) [2010] NSWSC 1443 and Button J in McCosker v Motor Accidents Authority of New South Wales [2015] NSWSC 434. As stated by Gleeson JA (with whom Meagher JA and Payne JA agreed) at [80] in Jubb: "[80] … the premise of the second proposition in Singh (No 2) seems to be that a further medical opinion cannot constitute "additional information" unless it is based on a change in the claimant's underlying symptoms and circumstances. The correctness of that premise may be doubted. It would seem to conflate the separate grounds referred to in s 62(1)(a) of "deterioration of the injury" and "additional relevant information". For the latter ground, it is the character of the information as additional and relevant which is to be evaluated by the proper officer when forming the opinion or state of satisfaction required by s 62(1A). A further medical opinion based on the same material as was available at the time of the earlier assessment may, depending on the cogency of reasons for the opinion expressed, constitute additional information. So much seems to have been accepted by Meagher JA in Henderson v QBE Insurance at [106]." (emphasis added)
Jubb is the proper approach and although Gleeson JA refrained from overruling the McCosker decision and other like decisions, it amounts to a correction of the approach taken and is the test to be applied.
The Delegate applied the wrong test. The Delegate stated that expert opinion based on the same material that was before the Medical Assessor was prohibited from constituting additional relevant information. The correct test is that it may constitute additional information, depending on the cogency of reasons provided.
The orders sought in the Summons are appropriate. Given the submitting appearances, the insurer does not seek costs.

Orders

I make the following orders: 1. The decision of the Delegate of the President of the Personal Injury Commission of New South Wales, (the second defendant), dated 21 December 2021, is invalid and is set aside. 2. The decision of the Delegate of the second defendant dated 30 March 2022 is invalid and is set aside. 3. The time to commence proceedings is extended to 26 April 2022 pursuant to Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW). 4. The subject matter of the first decision is remitted to the second defendant for determination by a different Delegate according to law.

Amendments 02 August 2022 - Paragraph 18 numbering corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2022

AAI Limited t/as GIO v Luk

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