Allianz Australia Insurance Ltd v Byrne

Supreme Court of NSW|2019-04-11|Before: Lonergan J

Nature of the proceedings

These judicial review proceedings arise from a motor vehicle accident in 2015 in which the first defendant was involved, and his subsequent claim for compensation for psychiatric injuries.
The plaintiff in these proceedings, Allianz Australia Insurance Ltd, is a compulsory third party insurer in NSW. The first defendant, Christopher Byrne, is a claimant under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). Following the accident, Mr Byrne lodged a claim for compensation with the plaintiff pursuant to the MAC Act. The second defendant is the State Insurance Regulatory Authority (SIRA). SIRA manages claims under the MAC Act. The third defendant is the Medical Review Panel (the Panel) appointed by SIRA, and is comprised of three medical experts. SIRA and the Panel have filed submitting appearances in these proceedings.
The plaintiff moves on the summons filed 8 November 2018. The plaintiff seeks an order in the nature of certiorari, or a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) declaring invalid the Certificate of the Panel dated 17 September 2018. The plaintiff also seeks an order that the matter be remitted to SIRA for determination according to law by a differently constituted Panel under s 63 of the MAC Act.
The grounds of judicial review relied on by the plaintiff are: 1. That there was no evidence to support the Panel's decision as to causation, and thus the Panel erred in law; and 2. That the Panel failed to carry out its statutory duty in a way that amounts to jurisdictional error.

Background

Mr Byrne was driving along the Pacific Highway near Cooperabung, NSW in June 2015 with his partner, Lindsie, and his son, Charlie, when he was required to stop due to road works. After stopping, a vehicle insured by the plaintiff collided with the rear of Mr Byrne's vehicle.
Lindsie, who was around 20 weeks pregnant at the time of the accident, suffered physical injuries and went immediately into shock. Lindsie began bleeding from her vagina the day after the accident, and went into labour about three weeks after the accident. She gave birth to a stillborn child, Victoria.
Mr Byrne alleges that he has suffered psychiatric injuries caused by the accident. Pursuant to s 131 of the MAC Act, for Mr Byrne to be awarded damages for non-economic loss his degree of permanent impairment must be greater than 10%.
The plaintiff disputed that the injuries give rise to greater than 10% permanent impairment. Due to this dispute, Mr Byrne's compensation claim was referred to SIRA's Medical Assessment Service (MAS) for assessment, pursuant to Part 3.4 of the MAC Act.

The statutory framework

Among others, two objects of the MAC Act provide as follows: 5 Objects of Act (1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, …
Chapter 5 of the MAC Act gives effect to those objects by providing for the award of damages relating to the injury to a person caused by a motor vehicle accident, and Part 5.3 of the MAC Act specifically provides for damages for non-economic loss. Under that Part, the degree of permanent impairment of the injured person must exceed 10% for damages to be awarded: 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
When a dispute arises over the level of permanent impairment of an injured person, the MAC Act provides for a process of medical assessment to determine impairment: 132 Assessment of impairment required before award of damages for non-economic loss if dispute over impairment threshold (1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment). Note. The assessment of the medical assessor under Part 3.4 is conclusive in proceedings before the court - see section 61. (2) The court may, at any stage in proceedings for an award of damages for non-economic loss, refer the matter for assessment of the degree of permanent impairment under Part 3.4. (3) A medical assessor may decline to make an assessment under Part 3.4 of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent. Court proceedings with respect to any such matter may be adjourned until the assessment is made. (4) Nothing in this section prevents: (a) the degree of impairment being re-assessed under Part 3.4, or (b) a claim from being settled at any time.
The assessment of permanent impairment is to be made in accordance with prescribed guidelines: 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury ca3used by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury. Section 44(1)(c) of the MAC Act enables the issuing of guidelines for "the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident". Such guidelines have been issued; the "Motor Accident Permanent Impairment Guidelines". These guidelines apply to assessments of permanent impairment resulting from injury from motor accidents occurring between 5 October 1999 and 30 November 2017.
Part 3.4 of the MAC Act applies to disagreements between a claimant and an insurer about whether the degree of permanent impairment of the claimant as a result of the injury caused by the accident is greater than 10% (s 58(1)(d)). Such disagreements are considered to be "medical disputes" to which Part 3.4 applies (s 57).
Once a disagreement over permanent impairment arises, s 60 provides for the referral of the disagreement to the MAS for assessment: 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. …
Section 65(1) requires that assessments under Part 3.4 be subject to the Motor Accidents Medical Guidelines, which are themselves issued pursuant to s 44(1)(d): 65 Authority monitoring and oversight (1) Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.
The relevant guidelines issued under s 44(1)(d) are named the "Medical assessment guidelines", and govern the process of medical assessment under Part 3.4.
Once a dispute has arisen and has been referred under s 60(2) to a medical assessor for assessment, s 61 requires that medical assessor to issue a certificate in respect of the medical assessment. In accordance with the Medical assessment guidelines, the certificate is to include on the certificate whether the degree of permanent impairment is greater or lesser than 10% (cl 13.5.3).
Medical assessors undertaking assessments have been appointed by SIRA under s 59(1).
After an initial certificate is issued by a medical assessor under s 61, parties to a dispute are able to apply to SIRA to refer the medical assessment to a Panel of medical assessors for review (s 63(1)). The proper officer may arrange for such a review (s 63(3), and if a review takes place, the Panel may confirm the original certificate (and hence the original assessment of permanent impairment), or it may revoke it and issue its own certificate (s 63(4)).
In McKee v Allianz Australian Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609, Giles JA set out the task of the review panel: "[38] I do not think it correct to divide a review under s 63 into what the review panel is obliged to review and what it has a discretion to review. The review panel has the one task, to review the medical assessment referred to it and either confirm the medical assessor's certificate or revoke it and issue a new certificate. In the manner earlier explained, the members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment." (Emphasis added).
The guidelines issued under s 44(1)(d), the Medical assessment guidelines, are relevant to the Panel's role: "Review Panel assessment 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; …"

Assessment by Dr Andrews

Mr Byrne's psychiatric injuries were assessed by MAS Assessor Dr Andrews, psychiatrist, on 18 October 2017. That same day, Dr Andrews issued a Certificate dated 18 October 2017 assessing Mr Byrne as having 12% permanent impairment because of psychiatric injuries caused by the motor accident.
As part of his assessment, Dr Andrews conducted an interview with Mr Byrne and also undertook a clinical examination. The pre-accident history taken by Dr Andrews noted that Mr Byrne had experienced bouts of depression in the five or six years leading up to the accident, and that he also had problems with anxiety. [1]
The history of the motor accident taken by Dr Andrews relevantly noted that Mr Byrne: [2] "…recalls being very frightened at the time about the safety of his family. He was distressed because of their crying and screaming and had initially worried that they had been more seriously injured. He recalls being very upset and feeling responsible for the accident "because (he) was driving." … Mr Byrne is strongly of the belief that the accident caused Lindsie to go into premature labour resulting in the death."
A history of symptoms and treatment following the motor accident was taken by Dr Andrews: [3] "He [Mr Byrne] states that he had mental health symptoms from almost immediately after the accident. This was compounded by his concern for Lindsie during the period that she had PV bleeding than [sic] he was concerned about losing the baby. This was made more acute for him because Charlie had been born at 28' weeks gestation."
Dr Andrews noted that Mr Byrne was taking medication for his anxiety, but was not taking other medications for his mental health problems. At the time of Dr Andrews' assessment, Mr Byrne had been seeing Ms Moorhouse, a psychologist, fortnightly for a period of 18 months.
Under a heading entitled "Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident", Dr Andrews made the following observations: [4] "Mr Byrne was profoundly affected by the death of his daughter, Vicky, which occurred within a few weeks the motor vehicle accident [sic]. He stated that it was "after Vicky's death that I started losing hope again." It is his belief that the motor vehicle accident is directly responsible for Lindsie's premature labour."
Dr Andrews also reviewed the reports of other medical experts who had previously assessed Mr Byrne. One was from Ms Moorhouse, Mr Byrne's treating psychologist, dated 11 June 2016. That report is not in evidence. The others were by Dr Parsonage, psychiatrist, dated 4 August 2016, and Dr Virgona, psychiatrist, dated 28 February 2017.
Dr Parsonage had assessed Mr Byrne in August 2016 noting his condition was not yet stable. He diagnosed Post-traumatic Stress Disorder and Major Depressive Disorder caused by: [5] "the shock of the motor vehicle accident and related events including the still birth of his daughter, Vicky, which was, in Mr Byrne's mind caused, at least partly, by the accident for which he feels guilty." He does not differentiate between impairment caused by the stillbirth as opposed to other aspects of his presentation and assesses 17% impairment having deducted 5% from 22% in recognition of Mr Byrne's pre-existing impairment.
Dr Virgona assessed Mr Byrne in February 2017 on behalf of the plaintiff insurer and concluded that he was suffering a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and that the motor vehicle accident was a "substantial contributing factor to the current disorder", as: [6] "Some symptoms are clearly accident related (driving anxiety and those caused by pain), some indirectly related (the stress of having to do more for his partner and the children) and some unrelated (loss of the older children and other negative consequences of his chronic addiction). Although he believes the loss of the pregnancy occurred as a result of the accident, there is no medical evidence to support this." Dr Virgona assessed Mr Byrne's impairment at 2% when compared with pre-motor accident function.
In his Certificate Dr Andrews raised "another cause" - cervical incompetence - as the reason for the miscarriage. It was, with respect to him, somewhat speculative, given he too has no specialist obstetric qualifications, and is, like the Panel, a psychiatrist: [7] "Confounding this assessment is the premature birth and subsequent death of his daughter Vicky within about 3 weeks of the motor vehicle accident. I accept that Mr Byrne believes the accident caused the premature labour and delivery, but no medical evidence is presented to support this belief. It is important to note the [sic] Ms Byrne had previously and subsequently delivered prematurely, both at 28 weeks. This suggests that another cause, such as an incompetent cervix, may be at play."
Under the heading "Apportionment", after making an assessment of the current degree of impairment as 12% (being 17%, less 5% for pre-existing impairment), Dr Andrews says this: [8] "Given the very short time frame between the motor accident and the death of his premature daughter it is not possible to do a PIRS assessment for the period in-between these events. In any case Mr Byrne had no time for his condition to stabilise between these events. Also, by his account, his partner commence [sic] PV bleeding and, given the previous premature birth of Charlie this was a source of worry and distress. In my opinion, taking all of this into consideration, the cause of Mr Byrne's current problems should be weighted more toward the death of his daughter, Vicky, and less to the motor vehicle accident itself. I would estimate that the apportionment should be at least 75% toward the death of his daughter and no more than 25% toward the motor vehicle accident. Pre-existing/subsequent Impairment In assigning causality I determined that the causes in this case was multi-factorial. Mr Byrne had preexisting conditions which were significant and caused measurable impairment. This is discussed in detail above. The motor vehicle accident was a relatively minor one but, on the evidence available to me I accept that it 'could have' contributed to his current state. There is likely to have been an exacerbation of pre-existing anxiety and depression. I am not using DSM-5 diagnoses for these pre-existing conditions as it is not possible to fully elucidate symptoms for the period prior to the accident. However, Mr Byrne acknowledges that problems existed and there is supporting documentary evidence. In my opinion the premature labour and death of his child that occurred weeks after the accident was a very traumatic event for Mr Byrne (he acknowledges this) and is still distressing for him to discuss. In spite of his strongly held belief that the MVA caused the premature birth there is no medical evidence presented linking the accident to these tragic events. For these reasons I have apportioned as above."
I note that in ground 21 of its Summons, the plaintiff adopts Dr Andrews' conclusion regarding causation by referring to the miscarriage as a "subsequent event causing additional impairment", as if it is fact, rather than simply Dr Andrews' opinion on that issue.
Dr Andrews, in his allocated task - to assess whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10% - presented as fact, to his mind, that the stillbirth was a "subsequent unrelated event" to the motor accident. In reaching this view he has placed weight on information or material he had that referred to the premature arrival of Mr Byrne's other children and the possible cervical incompetence of Lindsie, to reach a view that emotional sequelae from the stillbirth should not form part of the assessed permanent impairment. This finding was then attended by a failure by Dr Andrews to apportion what permanent impairment related to the stillbirth, the so-called "subsequent event", as opposed to what aspects of Mr Byrne's impairment were, in his view, properly considered to be caused by the motor accident.
There was then a finding by the Proper Officer that led to the Panel referral. The Proper Officer's decision or referral letter to the Panel are not in evidence before me, however it does not matter because the legislation and the case law makes clear that the Panel undertakes its assessment afresh.

Panel assessment and Certificate

Three psychiatrists, Dr Wayne Mason, Dr Michael Diamond and Dr Samson Roberts were convened to assess exactly the same question posed to Dr Andrews, but "following a review under s 63".
Under the heading "Matters considered and decided by the Panel" there is a summary of the documents reviewed which included Dr Andrews' Certificate, the application and reply, various clinical records and the reports of Ms Moorhouse, Dr Virgona and Dr Parsonage.
The Panel conducted an initial teleconference meeting on 18 April 2018. In its Certificate the Panel states: [9] "The Panel considered all of the available evidence and decided that a re-examination of the claimant was necessary in order to reach a decision, because insufficient details were available for the determination of whole person impairment. Accordingly, arrangements were made for the claimant to be examined by Assessor Mason, Assessor Diamond and Assessor Roberts at 1pm on 5 September 2018. It was decided that all injuries would be examined at that time. The Panel agreed to reconvene on 5 September 2018 to discuss the matter further. The Panel decided that additional information would assist them to make a decision, because of the fact that the matter hinged on the importance of the miscarriage of the claimant's unborn child. Accordingly, the Panel instructed the secretary to issue a notice to both parties requesting provision of the following information, to be provided by 1 August 2018: Submissions of credible expert opinion on the association between the motor accident and the subsequent miscarriage of the First Defendant's unborn child."
I note there was no specification that the material must be expert obstetric material or include the hospital or obstetric records of Mr Byrne's partner.
The plaintiff did not provide any additional medical opinion to the Panel, but instead provided legal submissions dated 18 May 2018 citing a number of cases and, amongst other things, stating: "…the onus of proof lies with the claimant to establish that there is a causal connection between the miscarriage of his unborn child and the subject motor vehicle accident."
It is not correct to say, as the plaintiff submits, that Mr Byrne's solicitors "did not provide any further medical material." They provided a letter from his treating psychologist Ms Moorhouse dated 6 March 2018. The Panel noted this material in its Certificate: [10] "She argued that a diagnosis of PTSD is warranted on the basis of Mr Byrne's belief that his daughter died as a consequence of the motor accident. She stated it is the belief that is traumatogenic, and supported apportionment of 75% of his impairment to the subject accident." Mr Byrne's solicitors also provided written submissions [11] addressing the Motor Accident Permanent Impairment Guidelines where at clause 1.6, the definition of "causation" from the AMA Guidelines is reproduced followed by reference to the effect of clauses 1.7 to 1.9 of the Guidelines (much along the lines set out by the Court of Appeal at [57] in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 ("McGiffen")), an outline of judicial statements about causal links at common law illustrated by Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 and State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249, and emphasising that causation can be established by Mr Byrne's description that the motor accident caused or contributed to the stillbirth.
Under the heading "Re-examination" and the sub-heading "History of the motor accident" the Panel noted the following matters: [12] "He said halfway back to Kempsey everyone was stopping and he pulled up, the fourth vehicle in a line of stationary cars. He said without any warning he was hit in the rear by a big 4-wheel-drive vehicle towing a camping trailer. Mr Byrne said the impact of the 4-wheel-drive vehicle was such that he was pushed into the car in front, and in fact all the vehicles in front of him collided with each other. He said the rear of the car was totally crumpled and pushed in underneath the back seat, while the front of the car was pushed in when it hit the one in front. Mr Byrne said he was able to get out of his door and he went to the rear of the car where both Lindsie and Charlie were screaming. He said he was unable to open the left rear door because it was bent out of shape but he did keep trying. He said he then asked a road worker to help him and they eventually got the front passenger door open, pushed the seat forward and down, and then managed to get both Lindsie and Charlie out through the front door. He said he made sure Charlie was OK and held him. He said Lindsie crouched down on her haunches on the ground as if she was in pain. He asked if she was OK and she said she was, but she told a lady from another car that she was 5 months pregnant. He said ambulances arrived and they attended to Lindsie, who said she was in pain, but she told them to attend to an old lady who was injured in a car further along. Mr Byrne said he was scared because he thought she and Charlie might have been crushed. He said he did what he had to do to settle them down and deal with the situation. He said he was in shock and had no choice but to remain at the accident scene for 2 ½ hours until a taxi came to collect him. He said fortunately the police stayed with them during this wait."
Under the heading "History of symptoms and treatment following the motor accident", the Panel noted: [13] "Mr Byrne said when they got home Lindsie was not able to walk and he and the taxi driver carried her out of the taxi and into the house because she had back pain. He said when she woke up the next morning she told him she had commenced bleeding from the vagina. He said this made him feel terribly guilty because he was driving and he felt responsible for everyone in the car. The panel put it to Mr Byrne that he was in no way responsible for the accident, and he said intellectually he understood this, but he could not help but feel guilty about what was happening to Lindsie. He said they were both terrified she was going to lose the baby. They immediately attended the doctor in Kempsey who arranged an ultrasound. Mr Byrne said he was doing things as if he was in a fog. He described himself as panicky, having palpitations and unable to sleep. He said he was worrying constantly because Charlie had been born at 28 weeks and they knew the chances of survival before that time were very low. He said that when the first ultrasound was taken the doctor checked with another specialist or doctor and said there was a heart beat which indicated the baby was alive and they thought everything would be OK. Mr Byrne said she attended her obstetrician and gynaecologist in Port Macquarie, Dr Hodge, who told them there was nothing much they could do apart from making sure she rested as much off her feet and avoid exertion. Mr Byrne said he knew that she was not going to be OK, but they complied with the doctor's advice. He said the bleeding settled a little but continued at a consistent level for the next three weeks. He said they were somewhat hopeful because the bleeding did not get worse, Three or four weeks after the motor accident he said he woke early as he usually did and when he walked back into the bedroom to see Lindsie she told him she was in labour and she was crying. He said in his head he had been counting off the weeks and he knew Lindsie was 21 weeks pregnant at that time. He said that is how old she was, 21 weeks. He said they knew she was a girl. They also knew they would not be able to keep the baby alive if she was delivered at that age. Mr Byrne said he helped Lindsie get out of bed and dress and then he put them in the car and drove her to Kempsey Hospital. He said it was 8.30am when they took her straight in. He said he took Charlie out of there and phoned a friend and asked him to look after Charlie. He met his friend, Heath, at their home and told him all about it and then went back to the hospital. He said Lindsie had been moved to the O & G Department and a midwife was attending to her labour. He said an Israeli doctor said to him, "Please don't ask me to resuscitate your child." He said the doctor also told him that he would probably see a lot of things he would not like. Mr Byrne said he went in and saw his daughter, Victoria. He said she had tried to take one breath but did not continue. He said Lindsie was inconsolable and he was crying also. He said he felt enormously guilty about what had happened. He showed the panel a photograph of the dead child. She was dark due to cyanosis but perfectly formed."
The Certificate then traces through the history the Panel obtained from Mr Byrne of the funeral, what activities Mr Byrne engages in, nightmares he suffers, physical symptoms such as his 12 kilogram weight loss, difficulties he has had with his partner due to his angry outbursts, and why he maintained the "very firmly held belief" that the motor accident caused Victoria's death. [14]
The Panel noted his treatment regime, methadone regime, pre-existing treatment and medications and current symptoms, and then worked through his level of impairment in various areas of functions in his life. These impairments were determined by the Panel to range from mild to severe. [15]
As part of its review, the Panel considered the certificate and reasons of Dr Andrews, together with the documents that had been provided to him as part of his assessment.
Under the heading "Panel Deliberations" the Panel recorded its diagnosis of Persistent Depressive Disorder with Anxious Distress. As to the causation of Mr Byrne's psychiatric injuries: [16] "The panel regarded the subject motor accident as the cause of Mr Byrne's Persistent Depressive Disorder with Anxious Distress. The panel was satisfied that the motor accident was a direct cause of the death of the claimant's unborn baby, Victoria. The panel noted that Mr Byrne had three children prior to the motor accident and has had one child after the motor accident, despite his partner suffering from cervical incompetence. The panel is of the opinion that but for the subject motor accident it is more than likely that baby Victoria would have survived. The panel was of the view that the motor accident was a more than negligible contributing cause to the death of the claimant's unborn child. The panel is of the opinion that the psychological condition suffered by Mr Byrne as a result of the accident is largely due to the death of his baby. … In the view of the panel there was a very clear clinical connection between the motor accident, the loss of the claimant's baby, and the claimant's development of a psychiatric condition which has resulted in significant impairment. The panel notes the insurer submissions of 21 May 2018 stating that the onus of proof lies with the claimant to establish a causal connection. In the view of the panel the clinical history obtained does establish such a causal connection." (Emphasis added).
The Panel disagreed with Dr Andrews' diagnosis. It revoked the Certificate of Dr Andrews and issued a Certificate dated 17 September 2018 determining 20% permanent impairment, having deducted 2% to reflect pre-existing whole person impairment.

Principles relevant to this appeal

The plaintiff's grounds of appeal are: 1. That there was no evidence to support the Panel's decision as to causation, and thus the Panel erred in law; and 2. That the Panel failed to carry out its statutory duty in a way that amounts to jurisdictional error.
As explained in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [45]: "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"."
It is important to bear in mind that the Panel could not ignore the issue of whether Mr Byrne's baby's death was caused by the accident, despite not being provided with expert obstetric or gynaecological assistance. It is evident that Mr Byrne's perception to this effect was a critical part of his claim. Based on McGiffen, the Panel would have failed in its statutory duty if it ignored this issue and made no attempt to address and determine it.
Substantial guidance as to how the Panel should approach its task is provided by the judgment of the Court in McGiffen: "[52] 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. [53] 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. [54] 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. [55] 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. [56] 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. [57] 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) [58] 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."
It is also clearly settled law that medical assessors are to form their own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] per French CJ, Crennan, Bell, Gageler and Keane JJ ("Wingfoot").

Ground 1: Error of law - no evidence to support the causation conclusion

Plaintiff's submissions

The Panel clearly viewed the stillbirth of Victoria as the critical factor in assessing impairment, [17] yet there was no evidence before the Panel to allow it to determine whether a causal link existed between the motor accident and the stillbirth of Victoria. [18]
To make a finding as to causation between the motor accident and the stillbirth, the Panel relied on matters such as Lindsie bleeding from her vagina the day after the accident, the stillbirth occurring three weeks after the accident, and the fact that Mr Byrne has had other children who have survived their births, despite Lindsie having an incompetent cervix; this was "simplistic". [19]
The Panel, constituted by three psychiatrists, had earlier requested "submissions of credible expert opinion" on whether the motor accident contributed to the stillbirth, because it was cognisant of the fact that it did not have the "medical expertise" to make such a causal finding. [20] Where no opinion was forthcoming, the Panel could only make a finding that Mr Byrne "failed to discharge his onus of proving a causal link between the motor accident and the subsequent stillbirth". [21]
Reliance was placed upon Allianz Australia Insurance Ltd v Mackenzie & Ors [2014] NSWSC 67 per Hoeben CJ at CL: "[36] It is apparent from the way in which the Review Panel expressed itself in relation to the right shoulder, that it did reverse the onus of proof. It was only after it had analysed the matter in this way that it made any positive finding. That positive finding was undermined by the Review Panel's concluding observation which again reversed the onus of proof, i.e. the Panel accepted that in the face of insufficient evidence to the contrary, the claimant did sustain an injury to the right shoulder as a result of the subject motor accident. [37] Regrettably, this error goes beyond a carelessness of expression, such as occurred in Liang, and indicates on the issue of the right shoulder injury a failure to apply the MAA's Permanent Impairment Guidelines and Common Law principles of causation. It constitutes an error of law on the face of the record. I have concluded that the plaintiff has made out its complaint in relation to causation with respect to the right shoulder injury." Like the Panel in Mackenzie, the Panel here made a finding in the face of "insufficient evidence to the contrary" that the stillbirth of Victoria was caused by the motor vehicle accident. This error, the plaintiff submitted, constituted an error of law on the face of the record.

Mr Byrne's submissions

The structure of the Certificate and its reasoning, and the reference to the reports of the other medical practitioners who had assessed Mr Byrne, reveals that the Panel did not determine as a matter of scientific fact that the motor accident killed Mr Byrne's unborn child, rather the panel proceeded on an acceptance of the claimant's belief to that effect. [22]
Despite the references to the accident being a direct cause of Victoria's death, [23] these references are "adjectival", and the Panel's Certificate, when read a whole, demonstrates that it was concerned with making an assessment as to causation between the accident and Mr Byrne's psychiatric impairment, noting that: "The Certificate and Reasons of the Medical Panel are to be read benevolently not in a quest to find error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. They are to be read as a whole bearing in mind the nature of the issue and must be construed with common-sense and without over-zealous attention to the manner of expression: Rodger v De Gelder (2011) 80 NSWLR 594 at [110] per Macfarlan JA, with whose additional remarks McColl JA agreed: [103]." [24] In this complex case, a consideration of the whole of the process of reasoning of the Panel should be undertaken, rather than consideration of only certain isolated parts of the Panel's reasons. [25]
There was no error of law on the face of the record, simply a conclusion on a question of medical fact, [26] which even if "wrong" could never be an error of law on the face of the record: [27] "The Panel's role is not purely adjudicative: it exercises an independent role in which it determines the facts for itself. It can make determinations, at least on medical matters, without there being "evidence" in the sense that the Panel does not require an expert medical opinion before it in order to decide a medical issue…the Panel must form and act on its own view."
The question as to whether there is an error of law is one of legality, not merit, correctness or appropriateness: Allianz Australia Insurance Limited v Zein [2016] NSWSC 196 at [18] per Adamson J. [28]
It was not a legal conclusion and as such, the assertion of error of law on the face of the record cannot be supported.

Consideration of ground 1

As stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 per Mason CJ, it is clear (in the context of judicial review) that the making of a finding and the drawing of inferences in the absence of evidence is an error of law: [29] "But it is said that "[t]here is no error of law simply in making a wrong finding of fact": Waterford v. The Commonwealth, per Brennan J. Similarly, Menzies J. observed in Reg. v. District Court; Ex parte White: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law." Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." [30] (Footnotes omitted).
It is incorrect to submit, as the plaintiff does, that there was no evidence to conclude that the motor accident caused Mr Byrne's partner's miscarriage. It is true that there was no expert obstetric evidence.
Some experts (also all psychiatrists), prior to the Panel's decision, were of the opinion having assessed the material before them that a causal link between the motor accident and Mr Byrne's partner's miscarriage was not made out.
Obviously the Panel reached the opposite conclusion.
The Panel took a detailed history from Mr Byrne showing a significant temporal connection to symptoms and miscarriage. There is a path of reasoning and analysis set out in the Certificate.
But even if it was a wrong finding of fact, (or wrong opinion based on the facts as found), there is no error of law. As submitted by senior counsel for Mr Byrne, it is in essence a conclusion of medical fact made by the Panel.
That conclusion was necessary for and underpins the Panel's overall assessment of impairment caused to Mr Byrne by the motor accident. The Panel has found as a matter of fact, based on its assessment, that his impairment was caused not only by the fear of potential miscarriage and fear of injury to his unborn child, but the fact of that miscarriage, and that it was all caused by the motor accident. That is a conclusion that was open to the Panel. It was required to assess Mr Byrne's impairment, and part of that impairment was the distress and grief from the loss of the child which Mr Byrne continued to think, despite reassurance to the contrary, was his fault.
All members of the Panel are medical practitioners. Nowhere in the Certificate or the evidence does the Panel say it is unable to address the issue of causation of the miscarriage. The Panel requested "submissions of credible expert opinion on the association between the motor accident and the subsequent miscarriage". [31] It was provided with limited material in response. The Panel still had a statutory task to complete, and it did so with the material provided, which included the clinical history given by Mr Byrne.
To the contrary of what was submitted by the plaintiff, to fail to address that aspect of Mr Byrne's case because of "absence of" or "inadequate evidence", would in my view have been a constructive failure to exercise jurisdiction: McGiffen at [52].
The reference by senior counsel for the plaintiff to Allianz Australia Insurance Ltd v Mackenzie & Ors [2014] NSWSC 67 is inapposite. There was no reversal of onus of proof in the way the Panel dealt with the issue. The Panel traced through the history and reached a conclusion. It was a different conclusion to that reached by Dr Andrews but that is of no relevance. Most importantly, the Panel focused on evaluating the role of the motor accident in causing all aspects of Mr Byrne's persistent depressive disorder with anxious distress.
No error of law has been demonstrated and ground 1 fails.

Ground 2: Jurisdictional error in the Panel failing to carry out its statutory duty

Plaintiff's submissions

The Panel was confined by the statutory scheme to assess Mr Byrne's level of impairment due to his psychiatric injuries arising from the accident, but in making findings as to the causation of the stillbirth of Victoria, it acted outside its statutory remit, and this amounts to jurisdictional error.

Mr Byrne's submissions

Senior counsel for Mr Byrne submitted that the task was not so confined. He argued that jurisdiction is triggered by the existence of a medical assessment matter (s 56 of the MAC Act) and the appointment of a Panel by the Proper Officer confers jurisdiction on the Panel to determine the matters referred to it: [32] "[40] …The appointment is not contingent on the members of the Panel making good a claim to expertise in the areas of their determination, let alone providing a basis for thinking that the Panel's opinion must be (or even is likely to be) the opinion which would prevail in a contest in which s. 79 of the Evidence Act, 1995 was in play - i.e. if a Court were asked to choose between competing medical opinion. [41] The mere assertion by the Plaintiff that there is no evidence of a physiological causation is itself contentious: determining a medical question is precisely why the Panel is appointed. There is nothing to show that the contemporaneity of the onset of symptoms in the mother and the later stillbirth cannot be connected or, even, are unrelated. Contemporaneity may be all that is required: a legally qualified medical practitioner is more likely to know than a lawyer making submissions. [42] The members of the Panel were all medical practitioners. No legislative basis for the submission that they were not qualified to decide the points they decided is identified. [43] As a matter of training any medical practitioner could express the opinions which the Panel has and, were it for a Court to make a decision about whether to accept some or all or reject the opinion, the extent of any special expertise might be relevant and might be relevant to weight. But where the legislature has entrusted this decision making process to legally qualified medical practitioners there is no basis for contending that their opinion about causation is not one which they could come to, by reason of whatever training they have which entitles them to practice as medical practitioners. … [46] Additionally, the Plaintiff's submissions do not identify the source of a restriction concerning those issues which a medical practitioner validly appointed to determine a matter should refer to some other practitioner. The submissions do not identify how the Court should detect when or if a decision maker has moved into an area in which he or she should have deferred to someone having more, better or merely different qualifications. The absence of a plausible test is a good sign that the underlying proposition is bad. [47] A request for information from the Panel is a prudent step and proves it was considering its position. But the Panel's willingness to entertain input from other specialities does not change its statutory role and function."

Consideration of ground 2

I am persuaded by the submissions made by senior counsel for Mr Byrne. There is simply no basis to confine the Panel's task in the way alleged by senior counsel by the plaintiff. To the contrary, the Panel's task was to inform itself as it sees fit, and then to set out the actual path of reasoning by which it arrived at the opinion it in fact formed for itself.
As stated in Wingfoot: "[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." (Footnotes omitted).
The substance of Mr Byrne's case included the whole of his impairment arising from the motor accident and that included his impairment arising from his grief and distress at the stillbirth of his child. It would have been a "failure to respond to a substantial argument" along the lines analysed in McGiffen at [52], and thus potentially a failure to exercise jurisdiction, if the Panel made no finding at all on this question.
Ground 2 is not made out.

Futility

To the extent that I need to deal with this issue, given the conclusions I have reached that both grounds of the appeal fail, I am not persuaded by the arguments put forward by senior counsel for Mr Byrne asserting there is futility in granting relief under s 69. A different Panel may reach a different opinion on the application of its analysis of events, its reasoning, and exercise of its medical expertise. Not only is there potential for difference in opinion about causation issues, there is complexity in the assessment of Mr Byrne's pre-existing impairment and his diagnosis as indicated by the differing views in evidence before me. The additional ground for relief - futility - is not made out.

Decision 1. Summons dismissed. 2. The plaintiff is to pay the defendant's costs.

Endnotes

Certificate of Dr Andrews, 18 October 2017, page 2.
Certificate of Dr Andrews, 18 October 2017, page 4.
Certificate of Dr Andrews, 18 October 2017, page 5.
Certificate of Dr Andrews, 18 October 2017, page 5.
Report of Dr Parsonage, 4 August 2016, page 7.
Report of Dr Virgona, 28 February 2017, page 8.
Certificate of Dr Andrews, 18 October 2017, page 8.
Certificate of Dr Andrews, 18 October 2017, pages 10-11.
Certificate of the Panel, 17 September 2018, page 5.
Certificate of the Panel, 17 September 2018, page 5.
Annexure D to the affidavit of Jodie Thurgood sworn 4 April 2019.
Certificate of the Panel, 17 September 2018, pages 6-7.
Certificate of the Panel, 17 September 2018, pages 7-8.
Certificate of the Panel, 17 September 2018, page 9.
Certificate of the Panel, 17 September 2018, page 11.
Certificate of the Panel, 17 September 2018, page 12.
Plaintiff's written submissions (PWS) at [39].
PWS at [40].
PWS at [44].
PWS at [42].
PWS at [46].
DWS at [23].
Certificate of the Panel, 17 September 2018, page 12.
DWS at [19].
DWS at [20].
DWS at [37].
DWS at [32].
DWS at [18].
At pages 355-361.
Page 356.
Certificate of the Panel, 17 September 2018, page 5.
DWS at [39]-[40]. 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: 11 October 2019

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