AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen

Court of Appeal (NSW)|2016-05-25|Before: Meagher JA, Simpson JA, Payne JA, Rothman J

Background

It was ultimately not in issue that Mr McGiffen was, on 2 September 2008, thrown from his motorcycle in circumstances that entitled him to make a claim against the Nominal Defendant for compensation under the MAC Act (see Pt 2.4 of Ch 2). He was taken by ambulance to the Westmead Hospital. A medical examination showed that his left tibia and fibula were fractured. A "Triage Form" notes, as "Triage Presenting Information": "MBA [sic - ? MVA], motorcycle rider involved in collision at 40kph with stationary car. Thrown from bike over car. Nil LOC, helmet worn. Open # [fracture] L tib/fib." Another note of the same date, on a "Trauma Admission Secondary Survey" of the Emergency Department of the hospital, records the injuries observed, including: "BACK tenderness over lumbar-thoracic spine"
Mr McGiffen was treated by an orthopaedic surgeon (Dr Edward Graham) and remained an inpatient in the hospital for five days. He was discharged in a wheelchair and was subsequently partly wheelchair bound, partly ambulating with crutches. He suffered considerable pain, for which he was prescribed strong medication. Because of the pain, he avoided weight bearing on his leg.
On 11 December 2009 Mr McGiffen experienced an acute onset of low back pain, and collapsed while walking. He was taken to the Liverpool Hospital. He has continued to experience pain in the thoracic and lower back. In May 2010 his general practitioner, Dr Jane Wong, referred him to a Dr Herman Lau "for an opinion and management of his back". Radiological investigation on 9 December 2011 disclosed no significant degenerative change in either the thoracic or lumbar spine, but a "suspicion of transverse process non-united fractures on either side" of the L1 vertebral body.

On 12 November 2013 the appellant lodged a Reply. Under the "Injuries Information" column it recorded: Bodily location of injury Injury type What aspects of this injury are in dispute? Causation, degree of impairment. The insurer refers to its submissions below in relation to the lumbar spine. The insurer disputes that the claimant sustained injury to his thoracic spine in the subject accident. Thoracolumbar spine Fracture and soft tissue injury The insurer submits that radiological findings relating to the thoracic region reveal degenerative and constitutional findings, as opposed to frank pathology attributable to the subject accident. Further, the insurer submits that the x-ray of 9 December 2011 does not evidence the presence of any fracture in the thoracic spine. Lumbar spine Non-united fractures at L1, foraminal narrowing at L5-S1, irritation of L5 nerve root, facet joint arthrosis at L5-S1, disc protrusion at L4-5, and soft tissue injury Causation, degree of impairment. The insurer disputes that the claimant sustained any injury to the lumbar spine in the subject accident. The insurer refers to the history of the claimant suffering an acute onset of low back pain in December 2009 ie. some 15 months post MVA. The insurer disputes such condition could be causally related to the subject accident. Further, the insurer disputes that the findings on the MRI scan of 13 March 2012 reflect pathology caused by the subject accident. It is submitted that there is no evidence of a fracture of L1 and that the remaining findings on the radiological investigation reflect degenerative changes consistent with the claimant's age group.

In a report dated 8 November 2013 directed to the appellant's solicitors, Dr Lew Pierides (a specialist in occupational medicine) disputed the existence of any fracture to the lumbar spine, and wrote: "There was no specific report of low back pain related to the subject accident based on the information I reviewed and Assessor Edward Schutz … did not consider there were any findings in the lumbar spine that would suggest Mr McGiffen would belong in any higher group than DRE Group 1. … Had there been sufficient forces to fracture both transverse processes at L1, I would have expected immediate symptoms in the low thoracic/upper lumbar area."
Mr McGiffen's claim was referred to Assessor Crane for assessment. Assessor Crane issued a certificate, with a statement of reasons, on 20 January 2014. He noted that the injuries referred for assessment were: "� Thoracic spine - soft tissue injury � Lumbar spine - non-united fractures at L1; foraminal narrowing at L5/S1; irritation of L5 nerve root; facet joint arthrosis at L5/S1; disc protrusion at L4/5; soft tissue injury � Digestive system - aggravation to digestive system caused by medication taken for pain relief" He recorded a brief history of Mr McGiffen's symptoms and treatment following the motor accident, including: "There was apparently delayed healing at the fracture site and he was non weight-bearing for about 18 months. Some months later, apparently slow healing was noted and he eventually returned to full weight-bearing. Mr McGiffen noted discomfort in the middle of his back about 18 months after the motor vehicle accident or when he started to weight-bear. He indicates the discomfort was noted between the lower thoracic spine and the lumbosacral area."
Assessor Crane examined Mr McGiffen and found no deformity or significant tenderness in the back. He reviewed the documentation with which he had been provided. He expressed his conclusions as: "There is no contemporaneous evidence of injury to the thoracic or lumbar spine with the first mention of any problem with the back not being until approximately nine months after the subject motor vehicle accident." (italics added) He determined that the spinal injuries were not caused by the motor accident.
Under the heading "Determinations" he wrote: "Degree of Permanent Impairment As indicated above, there is no contemporaneous evidence to indicate injury to the thoracic or lumbar spine which are therefore not assessable for whole person impairment as a result of the subject motor vehicle accident."
In the section of his Reasons headed "Review of Documents", Assessor Crane noted the reports of Dr Endrey-Walder, the medical records of Dr Wong, and the report of Dr Pierides. However, he did not address the medical issues that emerge from those documents.
On 14 March 2014 Mr McGiffen applied for review of the determination. His solicitors set out at some length and considerable detail what they alleged to be the manner in which Assessor Crane's assessment was "incorrect in a material respect". They identified the findings and observations with which they took issue as the finding that there was no contemporaneous evidence to indicate injury to the thoracic or lumbar spine and identified passages in the medical documentation to the contrary of that proposition. This included reference to clinical notes of the Westmead Hospital on the day of the motor accident, and the note of the same date of the Emergency Department Trauma Admission Secondary Survey in which Mr McGiffen was recorded on examination to have exhibited "tenderness over lumbar-thoracic spine". They wrote: "In addition to the contemporaneous evidence outlined above, we submit that Assessor Crane has not considered that the later evidence of spinal injury (such as the attendance at Liverpool Hospital on 11 December 2009) is consistent with a deterioration of the spine caused by the prolonged period the claimant was unable to properly weight bear on his left leg and ambulate …" They then referred to specific aspects of the medical documentation provided, including the report of Dr Endrey-Walder.
They concluded: "We respectfully submit the Assessor has not given due consideration to the contemporaneous evidence of spinal injury caused by the motor accident, nor to the later evidence being supportive of an injury to the spine which developed as a result of the prolonged period the claimant was unable to ambulate properly or weight bear on his left leg."
The application for review was supported by a similar volume of material, as well as the certificate of Assessor Schutz. The appellant filed a reply to that application which suggested that the appellant misunderstood Mr McGiffen's case. The appellant took issue with Mr McGiffen's claim that there was contemporaneous evidence indicating the existence of spinal injury which had been ignored by the assessor, and referred to statements of witnesses to the accident which, it said, did not support a version that Mr McGiffen was thrown from his motorcycle and landed on the road on his back. It also took issue with the provision of additional material for the purposes of the review (notwithstanding the provisions of s 63(3A) of the MAC Act). It made no attempt to deal with Mr McGiffen's claim, or the evidence, concerning the consequential development of back injury.
It is apparent that the proper officer was satisfied (s 63(3)) that there was reasonable cause to suspect that the medical assessment of Dr Crane was incorrect in a material respect. Mr McGiffen's claim was therefore referred to a review panel.
On 2 June 2014, as set out above, the review panel issued a certificate confirming the medical assessment giving, essentially, the same reasons as did Assessor Crane. The review panel wrote: "Of the injuries referred for assessment, none was related to the motor accident. An assessment of the degree of permanent impairment is, therefore, not required."
The review panel said that it had considered all of the available evidence and decided that, because of the extensive documentation provided and the clinical findings on examination of Mr McGiffen by Assessor Crane, it was unnecessary to have a further examination of Mr McGiffen. It then wrote: "Injuries: � Thoracic spine - soft tissue injury The panel agrees with the findings of Assessor Crane that there was no evidence of an injury to the thoracic spine at the time of the subject motor vehicle crash. The first symptoms related to the thoracic spine are recorded many months after the crash and this is not consistent with an injury to this spinal region being sustained in the crash. A description of a plausible mechanism of injury to a spinal region is not a reason to accept that an injury has actually occurred. There was significant force involved in the motorcycle crash. However, careful assessment of Mr McGiffen by hospital trauma services did not establish that a significant injury to this or the lumbar spinal region had occurred. � Lumbar spine … The panel also agrees with Assessor Crane in that the accident on 2 September 2008 did not result in Mr McGiffen sustaining these fractures or the other listed injuries to the lumbar spine. In the documentation provided the first mention of symptoms referable to the lumbar spine is a considerable time after the subject motor vehicle crash. The criteria for causation are not satisfied because of the substantial delay and the absence of other alternative explanatory factors." (italics added)
Like Assessor Crane, the review panel made no mention of any of the medical evidence concerning Mr McGiffen's back. It did not address the medical dispute, nor Mr McGiffen's claim that his back injury arose as a consequence of the effects of his leg injury.

The application for judicial review

The relief sought by Mr McGiffen under s 69 of the Supreme Court Act is available only where error of law on the face of the record or jurisdictional error is demonstrated. Mr McGiffen asserted both error of law on the face of the record and jurisdictional error.
Mr McGiffen sought orders setting aside the certificates of Assessor Crane and the review panel, declarations that each was void and of no effect, and an order that his claim be remitted to SIRA for determination by a different assessor or review panel.
The grounds on which the applications were based were stated in an Amended Summons. They were identical in each case and to the following effect:

that the medical assessor and the review panel found as a fact that the injuries to Mr McGiffen's lumbar spine and thoracic spine (and digestive system) were not suffered in the motor accident, and that that finding was not supported by any probative evidence and/or was irrational and illogical;
that the medical assessor and the review panel erred in law as to the "legal test of causation" to be applied, and manifested "an incorrect understanding and application as to the correct fact finding process to be applied";
that the medical assessor and the review panel did not comply with the "obligation or duty to enquire";
that the medical assessor and the review panel failed to provide procedural fairness.

The primary judgment

The primary judge found two "fundamental difficulties" in the approach taken by both Assessor Crane and the review panel. The first was the finding that there was no contemporaneous evidence to indicate injury to the thoracic or lumbar spine. This, he held, was factually incorrect because the note made on the day of the accident in the Trauma Admission Secondary Survey recorded: "… tenderness over lumbar-thoracic spine."
He considered the Assessor's conclusion to be a finding of fact for which there was no evidence. He recognised that it was possible that the assessors considered that "tenderness" was not evidence of an injury, but considered that if that were their conclusion, it was necessary that it be expressed.
The second "fundamental difficulty" the primary judge found was that, in limiting their consideration to evidence of immediate or contemporaneous complaint of back injury, both the medical assessor and the review panel did not address the correct question. The primary judge explained that the question of causation was not confined to the immediate effects of the accident. His Honour held the review panel did not correctly and sufficiently address causation because of their view that there was no contemporaneous evidence of complaint. In doing so they failed to address the case advanced by Mr McGiffen that his lumbar-thoracic injury was caused indirectly by the gait derangement suffered as a consequence of his other injuries resulting from the accident (J [58]-[59]).
On those two (apparently independent) bases, the primary judge made the orders set out above.

The issues on appeal

The appellant relies on six grounds of appeal. In the way the appeal was argued two questions arise. The first is directed to the first of the "fundamental difficulties" referred to by the primary judge and is the subject of Grounds 1 to 4 of the notice of appeal. That question is whether the primary judge erred in concluding that the decision of the review panel should be set aside on the basis of an error of law, the error being to conclude a crucial fact, determinative of the claim, on the basis of no evidence. In its written submissions addressing this question the appellant identified three "primary questions" which it submitted were involved in the appeal (see [72], [75] and [78] below).
The second question concerns the primary judge's finding of jurisdictional error, based on his conclusion with respect to the second of the "fundamental difficulties" that he identified. Grounds 5 and 6 are directed to this question. By Ground 5, the appellant maintained that the primary judge erred in holding that the medical assessor and the review panel only partly answered the relevant questions. By Ground 6, the appellant asserted that the primary judge erred in holding that the medical assessor and the review panel asked themselves the wrong question and applied the wrong test of causation on the basis of no evidence or no probative evidence.
The primary judge's finding of jurisdictional error, based on his conclusion with respect to this second question provided a separate and independent basis for setting aside the decision of the review panel. The appellant's written submissions did not address this second question. Nor was it addressed in oral submissions, except in reply and then only briefly.
By a Notice of Contention, Mr McGiffen also contended that the decision of the primary judge should be affirmed on the ground that the determinations of the medical assessor and the review panel were affected by jurisdictional error in that each failed to consider and deal with a substantial aspect of his case as put by Mr McGiffen. The substantial part of that case said not to have been addressed was that his spinal injury was the consequence of his "gait derangement" following the accident and initial leg injuries.
The question raised by this Notice of Contention is substantially the same as that raised by Grounds 5 and 6. We propose to address that question first, before returning to consider the grounds relating to the remaining question, which is directed to the first of the "fundamental difficulties" identified by the primary judge.

The conclusion as to jurisdictional error

The grounds for judicial review are jurisdictional error and error of law on the face of the record. As has been repeatedly emphasised, the distinction is important, as a claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose while a claim for relief based upon an error of law within jurisdiction must identify the error "on the face of the record".
The jurisdictional error identified by the primary judge lay in the review panel focussing on the immediate effects of the accident and whether they caused any lumbar-thoracic injury, with the result that it did not squarely address Mr McGiffen's case that his back injury arose as a consequence of the effects of his leg injuries (J [58]-[59], [61]).
Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81], after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, said: "However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'."
In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], Gummow and Callinan JJ stated: "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."
Failure to afford procedural fairness is a recognised form of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531.
However, as Basten JA pointed out in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [22] there are important limits to the principles described in Dranichnikov and Miah: "The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]."
In addressing whether or not there has been a failure to respond to a substantial argument it should steadily be borne in mind that the concern of the law in this area is to avoid practical injustice: Rodger v De Gelder [2015] at [93].
In the present case, to use language borrowed from Gaudron J in Miah, jurisdictional error would be established if the review panel misunderstood the statutory requirement governing the exercise of the assessment it was required to conduct so as to constitute a constructive failure to exercise jurisdiction. That draws attention to the statutory requirements governing the assessment. In addition, a statutory obligation to address the substance of an applicant's case when conducting such an assessment will be readily implied and a failure to satisfy that obligation may constitute a constructive failure to exercise jurisdiction: Ali v AAI Ltd [2016] NSWCA 110 at [66] per Basten JA, Leeming and Simpson JJA agreeing. Thus a failure to respond to a substantial argument may amount to a failure to accord procedural fairness, a constructive failure to exercise jurisdiction, or both.
Following the referral of the medical assessment to the review panel under s 63(1), the panel was required to conduct a new assessment. As we have already pointed out in [6] above, s 63(3A) expressly requires the review panel to undertake a new assessment of all the matters with which the medical assessment is concerned.
In conducting its new assessment, the review panel was required to address the matters in s 58. Section 58(1)(d) provides that the review panel must assess "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%" (italics added). This obligation necessarily directs attention to whether the motor accident was a contributing cause of the injury.
It is well established that a determination of the degree of permanent impairment as a result of the injury caused by a motor accident, includes the element of causation: Rodger v De Gelder [2015] at [17] per Gleeson JA; Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192 at [41] per Leeming JA.
The statutory context also includes that the medical assessment conducted under Part 3.4 of the MAC Act is a critical component of proceedings for the compensation of persons injured in motor vehicle accidents. A medical assessment certificate is conclusive evidence of the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim: s 61(2) of the MAC Act. That is, the certificate is conclusive evidence in compensation proceedings in a court of the degree of permanent impairment of a person as a result of the injury caused by the motor accident.
The requirement upon the review panel to address causation in the way we have described is underlined by clauses 1.7-1.9 of the Motor Accidents Medical Guidelines, dealing with permanent impairment ("the Permanent Impairment Guidelines"): ss 44(1)(c); 65 and 133(2)(a) of the MAC Act. In referring to these Guidelines in this context we do not intend to elevate their correct status in a judicial review context. That is a question for another day as explained by Leeming JA in Ali v AAI Ltd at [75]-[99]. On this subject the Guidelines are consistent with the conclusion we have reached as to the statutory requirement that the medical assessment correctly address issues of causation. These Guidelines provide, relevantly: "Causation of injury 1.7 An assessment of permanent impairment is as prescribed under section 58 (1)(d) of the Motor Accidents Compensation Act 1999. The assessment should 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 claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: 'Causation means that a physical, chemical, or biologic factor contributed 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. (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a nonmedical determination'. This therefore involves a medical decision and a non-medical informed judgement. 1.9 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 is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes." (italics in original)
The primary judge found that the review panel failed to address Mr McGiffen's case that his back injury arose as a consequence of the effects of his leg injuries. In doing so he held that it did not address his case that an aspect of his permanent impairment was caused by the motor accident, albeit indirectly.
The evidence before the primary judge about this issue, and his Honour's conclusions about that evidence, may be summarised as follows: 1. Mr McGiffen's claim, which the review panel was required to consider, was that the major symptoms in relation to the thoracic or lumbar spine injury did not manifest themselves for some period because of the treatment regime implemented for the injuries to other parts of his body. In particular, the plaintiff did not weight bear for a significant period, and it was only after the plaintiff did so that the injury to the back was manifest: J [53]; 2. The review panel did not address causation under clauses 1.8 and 1.9 of the permanent impairment guidelines, which stated that causation means that a physical, chemical or biological factor contributed to the occurrence of a medical condition and what was to be determined was whether the injury caused or contributed to the worsening of the impairment. The review panel did not address the issue that causation may be indirect: J [54]; 3. The test of causation was not confined to the immediate effects of the accident. The question that the review panel asked itself was confined to whether there was immediate or contemporaneous complaint of injury to the lumbar-thoracic spine area: J [58]; 4. In asking itself that question and deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of symptoms of injury, the review panel only partly asked the question that was necessary to be asked, and as a consequence addressed the wrong question and determined causation on the wrong basis: J [59].
The appellant addressed the primary judge's holding as to jurisdictional error in answer to questions put by the Court at the conclusion of oral submissions in chief, and again in oral submissions in reply. The submissions made were as follows: 1. The case that the respondent put to the assessor and the review panel about the gait derangement of the claimant being the cause of the back pain was not a "significant" or "substantial" case. It was not "articulated" other than by reference to "snips and bits and pieces of medical reports". As such it was not "identifiable as a substantial case"; 2. Assessor Crane was alive to the "weight-bearing" issue. So much is said to be clear from the following passage in the assessor's certificate: "There was apparently delayed healing at the fracture site and he was non weight-bearing for about 18 months ... Mr McGiffen noted discomfort in the middle of his back about 18 months after the motor vehicle accident or when he started to weight-bear"; 1. Although the review panel did not say anything about the "weight-bearing" issue, they did not need to because they read Assessor Crane's report and all of the documentation presented to him. Therefore "they can't be accused of missing it"; and 2. The review panel may have understood and addressed the case put by the respondent about the ambulatory state of the claimant being the cause of the back pain in the following sentence: "[a] description of a plausible mechanism of injury to a spinal region is not a reason to accept that an injury has actually occurred". However, the appellant accepted that what is meant by that sentence is not clear.
The submission that Mr McGiffen's "weight-bearing" case was not "identifiable as a substantial case" is rejected. As appears at [311]-[322] above, the review panel did not address Mr McGiffen's case that his back pain was a "consequence of his abnormal ambulation", which itself was a result of the accident. The case made by Mr McGiffen was not limited to an identifiable back injury diagnosed at the time of, or immediately after, the motor accident. Mr McGiffen's case with respect to his back was stated clearly in his initial claim form, where he listed as one of his injuries "secondary development of back injuries". Thereafter, this issue was never withdrawn and was repeated many times. The disagreement between the claimant and the insurer, which comprised the relevant "medical assessment matters" referred to the review panel, included an injury to his thoracolumbar spine "consequent upon gait derangement". This complaint was supported by the medical evidence, which is summarised at [15] above. This was an important part of his case that the appeal panel was required to consider in performing its statutory task of deciding if any permanent impairment suffered by the claimant was caused or materially contributed to by the motor accident, and if so, the percentage of that permanent impairment.
The appellant's second submission, that the review panel should be taken to have considered the "weight-bearing" case simply by its having read Assessor Crane's report and the documentation presented to him, also should be rejected. Section 63(3A) required the panel to undertake a new assessment of all the matters with which the medical assessment was concerned. That requirement was not satisfied by the panel's having read all of the documentation presented to Assessor Crane.
The appellant accepts, correctly, that the review panel did not say anything at all about the case presented that Mr McGiffen's back pain was a "consequence of his abnormal ambulation" which itself was a result of the accident. The appellant's tentative submission that the review panel addressed this issue by finding that "[a] description of a plausible mechanism of injury to a spinal region is not a reason to accept that an injury has actually occurred" is rejected. In context, this finding forms part of a consideration of the available contemporaneous evidence of the assessment of the respondent by hospital trauma services. The finding is preceded by a reference to the date upon which "the first symptoms" related to the thoracic spine were recorded and immediately followed by a reference to the assessment of Mr McGiffen by hospital trauma services after the accident. It does not address the "abnormal ambulation" issue.
The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the "gait derangement", itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident?
In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason the decision recorded in the panel's certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.
This was a case where a failure by the review panel to respond to a substantial argument led to a practical injustice. The primary judge was correct to hold that the review panel did not address the correct question put to it for determination.
Although unnecessary to do so, the primary judge also set aside the decision of Assessor Crane on the same basis. No ground of appeal was addressed to that order.

Error of law on the face of the record

The primary judge also concluded that the decision of the review panel should be set aside on the basis of an error of law, the error being to conclude a crucial fact determinative of the claim on the basis of no evidence, or to the extent necessary, no probative evidence: J [61]. This was the principal focus of the submissions made in writing and orally by the appellant in the appeal.
A claim for relief based upon an error of law within jurisdiction must identify the error "on the face of the record". It may have been open to the primary judge to conclude that the error of law based upon there being "no evidence" for a crucial finding of fact was so significant as to reveal jurisdictional error in a misconstruction of the nature of the function of the review panel or the extent of its powers in the particular case (Kirk at [72]-[76]). It is tolerably clear, however, that his Honour did not reason this way (J [61]).
In light of our conclusions as to jurisdictional error, it is strictly unnecessary to determine whether the primary judge was also correct to identify error of law on the face of the record in relation to his Honour's first "fundamental difficulty" (see [36] above). Having regard to the concentration by the appellant on this aspect of the decision, we will briefly address Grounds 1 to 4.
As we have noted above, the appellant's submissions in relation to this question preceded by identifying three "primary questions" (see [40] above).
The first "primary question" was based on the appellant's characterisation of the findings of the primary judge as being that the review panel had failed to take into account a relevant consideration. That consideration was said to be the content of the note recording a contemporaneous complaint about soreness in the lumbar-thoracic spine contained in the Trauma Admission Secondary Survey.
It was incorrect, the appellant submitted, to equate a failure to take into account a relevant item of evidence with a failure to take into account a relevant consideration as that term is understood in administrative law. That submission was clearly correct: see Allianz Australia Insurance Ltd v Cervantes at [15] (Basten JA, McColl and Macfarlan JJA agreeing); Rodger v De Gelder [2015] at [86] (Gleeson JA, Macfarlan and Leeming JJA agreeing).
However, to suggest that the primary judge proceeded on the basis of failure on the part of the review panel to take into account a relevant consideration is to mischaracterise what his Honour held. His holding, with respect to the Secondary Survey note, was not that it was a relevant consideration required by law to be taken into account. Rather, it was that the finding of both the medical assessor and review panel that there was "no evidence of any injury" to the lumbar-thoracic spine region, was one of fact for which there was no evidence: J [50]-[51]. To the extent that the first "primary question" - a "relevant considerations" complaint - is to be considered as within these grounds of appeal, it is rejected.
The second "primary question" identified in the appellant's written submissions was based on a submission that the review panel was not required to set out why it did not accept certain submissions or evidence as correct. That submission also correctly states the law: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323. It is clear that the review panel had no obligation to deal expressly with every aspect of the evidence or explain why certain evidence was not referred to.
It is true that at one point in the judgment the primary judge said that if the review panel took the view that the Secondary Survey note was not "evidence of an injury to the area" that conclusion would need to be expressed: J [49]. If the primary judge had set aside the decision of the review panel on this basis, his doing so would have been contrary to authority.
However, it is tolerably clear that one basis upon which the primary judge set aside the decision of the review panel was his conclusion that the relevant error of law was the review panel's finding as to a crucial fact, which was determinative of the claim, as to which there was no evidence, or no probative evidence: J [61]. Any reference to a need for further expression merely served to emphasise that conclusion. For these reasons Grounds 1 and 2 should be dismissed.
The third "primary question" was stated to be: "29. At [51] of the reasons for judgment … the Court fell into error in characterising a finding of fact for which there was no evidence as being an error of law. 30. In making the finding that his Honour did, he was making a finding that was not available to him."
Paragraphs [50] and [51] of the judgment were as follows: "50 Otherwise, plainly there is evidence of an injury (whether or not permanent) to the lumbar-thoracic spine region contemporaneous with the accident itself and noted independently on examination by the emergency department at Westmead Hospital. As a consequence, there is evidence that prevents both Assessor Crane and the Review Panel from coming to the crucial finding of fact that "there was no evidence of any injury" to this area. 51 As is well known, a finding of fact for which there is no evidence is an error of law."
The appellant submitted that medical assessors are entitled to rely upon their own expertise in making their assessments. That proposition is correct: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480; Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214.
A finding of ultimate fact or the drawing of inferences from intermediate facts for which there is no evidence, however, is an error of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390.
In Kostas the parties agreed that the question of whether the appellants had repudiated a contract was to be determined separately. That issue was referred to as the "separate question" in the judgment. In that case, the relevant fact was as follows (at [66]): "The Tribunal found that the appellants had repudiated the contract. A step critical to the Tribunal's finding of repudiation was that the time for performance of the contract had been extended to the end of September 2000. That, in turn, depended upon finding that the builder had 'served in the manner set out in the contract' two claims for extension of time - one on 31 March 2000, the other on 23 May 2000 - and that the appellants had not disputed those claims in the manner required by the contract."
The majority concluded (at [91]): "A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served." (footnotes omitted)
In the present case, the ultimate finding of the review panel was recorded as follows: "The Review Panel found that the accident was NOT a cause of the following claimed injuries: Thoracic spine - soft tissue injury; Lumbar spine - non-united fractures at L1;foraminal narrowing at L5/S1; irritation of L5 nerve root; facet joint arthrosis at L5/S1; disc protrusion at L4/5; soft tissue injury."
The relevant findings by the review panel, supporting that finding were: "The panel agrees with the findings of Assessor Crane that there was no evidence of an injury to the thoracic spine at the time of the subject motor vehicle crash. The first symptoms related to the thoracic spine are recorded many months after the crash and this is not consistent with an injury to [the thoracic] spinal region being sustained in the crash. ... The panel also agrees with Assessor Crane in that the accident on 2 September 2008 did not result in Mr McGiffen sustaining these fractures or the other listed injuries to the lumbar spine. In the documentation provided the first mention of symptoms referable to the lumbar spine is a considerable time after the subject motor vehicle crash. The criteria for causation are not satisfied because of the substantial delay and the absence of other alternative explanatory factors."
Critical to those findings, in the sense that they depended on findings of primary facts, were findings that: 1. "the first symptoms related to the thoracic spine are recorded many months after the crash"; and 2. "the first mention of symptoms referable to the lumbar spine was a considerable time after the subject motor vehicle crash".
It is not controversial that a finding that the first mention of symptoms referable to injury to the spine was a considerable time after the motor vehicle crash, would not have been correct. That much is made clear by the note recording a contemporaneous complaint about soreness in the lumbar-thoracic spine contained in the Trauma Admission Secondary Survey. Accordingly, such a finding, made in the absence of any evidence, would have involved an error of law.
It is not clear, however, that this is the error of law described by the primary judge at [51]. His Honour's reference there to the "finding of fact" is reasonably understood as being to his finding in [50] that there was "no evidence of any injury". If that is what the primary judge is referring to, we would agree that there was no error of law made by the review panel because that finding as formulated is directed to a question on which the expert review panel was entitled to make its own assessment as to the adequacy of evidence proving an "injury": Wingfoot at [47]. Therefore, if there was any error, it was limited to the making of a finding of fact as to the existence of evidence of symptoms or complaint of injury, for which there was no support.
Further, whether any such error of law was one appearing "on the face of the record" as required by s 69 of the Supreme Court Act was not explored by the parties on the appeal. The extent to which, when considering a "no evidence" finding, it is open to consider material beyond the reasons of the review panel is unclear. It is true that s 69(4) of the Supreme Court Act makes the reasons part of the record, assuming, in the absence of argument to the contrary, that the review panel is a "tribunal". It is not, however, permissible to review the whole of the evidence before the review panel to discern whether there is an error of law on the face of the record.
Reading his Honour's reasons as we have, we would uphold Ground 3 as made by the submissions directed to this third "primary question". This conclusion is not material to the challenge to the orders of the primary judge which are supported on the separate ground of jurisdictional error.
Finally, Ground 4 complains that the primary judge erred in concluding that it was "irrational and illogical" for the review panel to base their conclusions on the absence of any evidence of an injury.
The stringency of this ground of review in requiring a conclusion that no rational decision maker would have made the decision was emphasised in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 especially per Crennan and Bell JJ at [130]-[131]. We would not be prepared to conclude that in the present case it was "irrational and illogical" for the review panel to conclude that there was no evidence of "injury".
However, as the primary judge found at [49], it was possible that the review panel reasoned that the contents of the Secondary Survey note were not evidence of "injury". Whether or not the Secondary Survey note constituted evidence of "injury" engaged the expertise of the panel and was a question about which reasonable minds could differ. It could not be said that no rational decision maker could have so concluded. Had the primary judge set the decision of the review panel aside on the basis that there was an "irrational and illogical" finding, that would have been inconsistent with authority.
It is plain, however, that he did not do so. Rather his conclusion was that the relevant error of law was for the review panel to conclude a crucial fact on the basis of no evidence: J [61]. As with Ground 3, Ground 4 does not identify an error that was material to the finding of the challenged orders.

Conclusion

It is unnecessary to deal with the Notice of Contention, which raises the same matters as are dealt with in our consideration of Grounds 5 and 6.
The primary judge was correct to conclude that the decision of the review panel was affected by jurisdictional error. For that reason the appeal should be dismissed with costs.

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: 25 August 2016

Solicitors: Moray & Agnew (Appellant) Edwards Michael Powell Lawyers (First Respondent) Crown Solicitor's Office of NSW (Second, Third and Fourth Respondents) File Number(s): 2015/334398 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: Clinton McGiffen v AAI Limited t/as GIO, as agent for Nominal Defendant [2015] NSWSC 1530 Date of Decision: 16 October 2015 Before: Rothman J File Number(s): 2014/254468

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 2 September 2008, the respondent, Clinton McGiffen suffered injuries as a result of a motor accident. He was taken to Westmead Hospital where he remained an inpatient for five days. He was discharged in a wheelchair and was subsequently partly wheelchair bound and partly ambulating with crutches. On 11 December 2009, Mr McGiffen experienced an acute onset of low back pain. On 30 August 2010, Mr McGiffen made a claim for damages under the Motor Accidents Compensation Act 1999 (NSW). The other driver's insurer, AAI Ltd, trading as GIO, as agent for the Nominal Defendant, disputed that claim. To be awarded damages for non-economic loss Mr McGiffen needed to establish that he suffered a degree of permanent impairment greater than 10 per cent. Pursuant to ss 60(2) and 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW), the claim was referred to the Motor Accidents Authority (now the State Regulatory Insurance Authority, "SIRA") which arranged for a medical assessor to determine Mr McGiffen's degree of permanent impairment. The medical assessor issued a certificate which determined that none of the injuries referred for assessment related to the motor accident and because of this an assessment of the degree of permanent impairment was not required. In accordance with the Motor Accidents Compensation Act 1999 (NSW), the medical assessor gave reasons for this determination. Mr McGiffen lodged an application for review of the assessment. A review was granted and the application was referred to a review panel. The review panel issued a certificate which confirmed the first assessor's findings. The review panel also gave reasons for its decision, which were essentially the same as those of the medical assessor. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), Mr McGiffen sought judicial review of both the determination of the medical assessor and that of the review panel in the Common Law Division of the Supreme Court. On 16 October 2015, the primary judge declared that each certificate was affected by jurisdictional error and/or error of law on the face of the record. Accordingly, the primary judge quashed each certificate and ordered that Mr McGiffen's claim for compensation be remitted to SIRA to be determined in accordance with law. The primary judge found that there were two "fundamental difficulties" in the approach adopted by the medical assessor and the review panel. First, he held that a finding that there was no contemporaneous evidence to indicate injury to the thoracic or lumbar spine was factually incorrect because it was inconsistent with a note made on the day of the accident on a "Trauma Admission Secondary Survey" conducted at the hospital which recorded "tenderness over lumbar-thoracic spine". The primary judge determined that this amounted to an error of law on the face of the record because this was a finding of fact for which there was no evidence. The second "fundamental difficulty" identified by the primary judge was that in determining whether Mr McGiffen's injuries were caused by the motor accident, the medical assessor and the review panel failed to apply itself to the real question posed by s 58(1)(d). This was because their consideration was limited to evidence regarding the immediate effects of the accident. The primary judge held that the test for causation under s 58(1)(d) was not confined to the immediate effects of the accident and consequently, the medical assessor and the review panel only partially addressed their task. The primary judge determined that this amounted to jurisdictional error. The appellant appealed against the whole of the primary judgment. The respondent filed a Notice of Contention seeking to uphold the decision of the primary judge on the additional ground that the determinations of the medical assessor and the review panel were affected by jurisdictional error because each failed to consider a substantial part of the case as put by Mr McGiffen. Held The Court, dismissing the appeal: (1) The assessment of the degree of permanent impairment under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (NSW) includes the element of causation as it requires an assessment of whether the injury being considered (and any associated impairment) was caused or materially contributed to by the motor accident: at [54]-[57]. Roger v De Gelder [2015] NSWCA 211; 71 MVR 514 applied; Permanent Impairment Guidelines considered. (2) In determining causation solely on the basis of the existence of contemporaneous evidence of complaint of back injury, the review panel only partially addressed the question posed by s 58(1)(d). Accordingly, the review panel failed to exercise its statutory function under s 58(1)(d): at [65]. (3) The failure of the review panel to exercise its statutory function under s 58(1)(d) amounts to a constructive failure to exercise jurisdiction. By failing to address Mr McGiffen's case that his back injury arose as a consequence of the effect of his gait derangement, which was caused by the accident, the review panel did not satisfy its statutory obligation to address the substance of Mr McGiffen's case. This also amounts to jurisdictional error. Therefore the primary judge was correct to conclude that that the decision of the review panel was affected by jurisdictional error: at [52], [65]-[66]. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 applied; Ali v AAI Ltd [2016] NSWCA 110 considered. (4) If there was error on the face of the record, this was limited to the review panel making a finding of fact regarding evidence of symptoms or complaint of injury for which there was no evidence and would not include a finding of fact that there was "no evidence of any injury". This is because the expert review panel was entitled to make its own assessment as to the adequacy of evidence proving an "injury". Whether such an error of law was one appearing on the face of the record as required by s 69 of the Supreme Court Act 1970 (NSW) was not explored in the appeal: at [80]-[89]. Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 considered; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 considered.

The Motor Accidents Compensation Act

The scheme of the MAC Act has been referred to in a number of judgments of this Court: see, for example, Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [7]-[15], per Beazley JA (as her Honour then was) and Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514 at [9]-[14], per Gleeson JA. It is therefore necessary only briefly to summarise the provisions relevant to the present proceedings. Chapter 3 deals with "Motor Accident Injuries". Part 3.4 of Ch 3 deals with the medical assessment of injuries claimed to have been caused in a "motor accident" (defined in s 3). By s 60, a disagreement between a claimant and an insurer about "medical assessment matters", as defined in ss 57 and 58, and referred to as "a medical dispute" may be referred by either party to SIRA, which is to arrange for the dispute to be referred to one or more medical assessors appointed under s 59. One such "matter" is a disagreement about 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 per cent: s 58(1)(d).
By s 61(1) the medical assessor is to give a certificate as to the matters referred for assessment; by sub-s (2) the certificate is conclusive proof, in any court proceeding or claims assessment process, of the matters certified; by sub-s (9), the certificate is to set out the reasons of the assessor for any findings as to any matter certified. By s 63 a party to a medical dispute may apply to the proper officer of SIRA to refer a medical assessment by a single medical assessor to a review panel for review; by sub-s (2) such an application may only be made on grounds that the assessment was incorrect in a material respect. By sub-s (3) the proper officer is to arrange for any such application to be referred to a panel of at least three medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application for review.
The review by the panel is not limited to the particular aspect of the medical assessment that is said to be incorrect. By sub s (3A), the panel's assessment is to be a "new assessment" of all the matters with which the medical assessment was concerned. By sub-s (4) the review panel may confirm the certificate of the medical assessor, or revoke that certificate and issue a new one. Such a certificate is, like the certificate of the medical assessor, conclusive evidence in any court proceedings or claims assessment under the MAC Act as to the matters certified. By sub-s (6) the provisions of s 61 (including the requirement for specification of reasons) apply to the certificate to be issued by the review panel. By s 131 (in Ch 5, which makes provision with respect to the award of damages), no damages for non-economic loss may be awarded unless the degree of permanent impairment suffered is greater than 10 per cent.

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