Bath v Allianz Australia Insurance Limited

Catchwords: ADMINISTRATIVE LAW – judicial review – decision of review panel – motor vehicle accident – where plaintiff injured from fall on Sydney Light Rail – whether lack of contemporaneous evidence treated as decisive or determinative of causation – whether lawful reasons not given – whether jurisdictional error

Legislation Cited: Motor Accident Injuries Act 2017 (NSW), ss 4.11, 7.17, 7.20, 7.21, 7.23, 7.26, Sch 2
Supreme Court Act 1970 (NSW), s 69

Cases Cited: AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348
Bath v Allianz Australia Insurance Ltd [2025] NSWPICMP 481
Bugat v Fox [2014] NSWSC 888; (2014) 67 MVR 150
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
De Gelder v Rodger (No 2) [2014] NSWSC 1355; (2014) 68 MVR 340
Della Bruna v Health Care Complaints Commission [2025] NSWCA 105
Francica v Allianz Australia Insurance Ltd [2015] NSWSC 1140; (2015) 71 MVR 537
Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333
Insurance Australia Ltd t/as NRMA Insurance v Kirkpinar [2025] NSWSC 162
Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804; (2021) 96 MVR 456
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317
Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557
Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548; (2021) 96 MVR 170
Nyman v Valmas [1997] NSWCA 235
Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; (2012) 61 MVR 245
Partridge v IAG Limited t/as NRMA Insurance [2019] NSWSC 127; (2019) 89 MVR 36
Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558; (2020) 94 MVR 341
Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514
Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; (2020) 93 MVR 378
Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192; (2016) 77 MVR 206
Wharram v CIC Allianz Insurance Ltd [2020] NSWSC 1144; (2020) 94 MVR 43
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1

Texts Cited: State Insurance Regulatory Authority, Motor Accident Guidelines (version 9.3), cll 6.5, 6.6, 6.7

Category: Principal judgment

Parties: David Bath (Plaintiff)
Allianz Australia Insurance Limited (First Defendant) (submitting appearance)
Review Panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (Second Defendant) (submitting appearance)
President of the Personal Injury Commission of New South Wales (Third Defendant) (submitting appearance)

Representation: Counsel:
M Robinson SC / M Eirth (Plaintiff)
Solicitors:
Law Partners Personal Injury Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2025/371277

Publication restriction: Nil

JUDGMENT

1. Price AJA: These proceedings arise from a decision on 4 July 2025 of the second defendant, the Review Panel of the Personal Injury Commission of New South Wales (“the Panel”) constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (“the MAI Act”), which assessed the plaintiff’s, Mr Bath’s, degree of Whole Person Impairment (“WPI”) resulting from the motor vehicle accident on 2 March 2019 to be 5%: Bath v Allianz Australia Insurance Ltd [2025] NSWPICMP 481. An assessment of 5% WPI falls below the threshold of being greater than 10% to entitle the plaintiff to be awarded damages for non-economic loss pursuant to s 4.11 of the MAI Act.

2. By amended summons filed on 30 October 2025, the plaintiff seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the Panel’s decision. The plaintiff advances two grounds of review which are confined to the Panel’s finding that the injury to the plaintiff’s left shoulder was not caused by the motor vehicle accident. The first ground is a complaint about whether the Panel erroneously treated the lack of contemporaneous evidence in relation to the injury to the plaintiff’s left shoulder as decisive or determinative of the question of causation. The second ground, which essentially overlaps with Ground 1, alleges that the Panel constructively failed to exercise its jurisdiction by failing to provide any reasons or any lawful reasons as to the cause of the plaintiff’s left shoulder injury.

3. The plaintiff seeks an order in the nature of certiorari setting aside the Panel’s decision or alternatively a declaration to that effect, and further an order that the matter be remitted to the third defendant, the President of the Personal Injury Commission of NSW (“the PIC”), for referral to a differently constituted review panel for redetermination according to law.

4. An unusual feature of the present proceedings is that all three defendants have filed submitting appearances save as to costs, which includes in particular the first defendant, Allianz Australia Insurance Limited (“Allianz”). Accordingly, none of the defendants have taken an active role in these proceedings, neither consenting nor opposing the relief sought by the plaintiff: Nyman v Valmas [1997] NSWCA 235 (Beazley JA, Mason P and Priestley JA agreeing), quoted in Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317 at [14] (Beazley P, Barrett and Gleeson JJA). However, I am mindful that these proceedings which invoke the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act, could not in any event simply be resolved by consent without the Court itself being satisfied upon the basis such orders were to be made: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 at [11] (French J); Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44] (Payne JA, Gleeson JA agreeing).

Background

5. The plaintiff suffered a number of injuries in a motor vehicle accident on 2 March 2019 while travelling as a passenger on the Sydney Light Rail when the light rail vehicle came to a sudden and unexpected stop causing him and his mobility scooter to fall over inside the carriage. The plaintiff was treated by paramedics at the scene of the accident and was taken by ambulance to St Vincent’s Hospital for further treatment.

6. The plaintiff made a claim against Allianz (the compulsory third party insurer of the light rail vehicle at fault) for statutory benefits and damages (which included relevantly a claim for non-economic loss) under the MAI Act. The plaintiff’s claim was supported by Dr John Bentivolglio’s report who assessed the plaintiff’s degree of WPI to be 26%. Allianz disagreed with Dr Bentivolglio’s assessment of the plaintiff’s WPI and refused his claim. A dispute arose between the plaintiff and Allianz as to his degree of WPI resulting from the injuries caused by the motor vehicle accident including whether the plaintiff’s WPI exceeded the threshold limit of 10%: Sch 2, cl 2(a) of the MAI Act. It was thus a “medical dispute” within the meaning of s 7.17 of the MAI Act.

7. The dispute was referred by the PIC for medical assessment under s 7.20 of the MAI Act to a medical assessor, Dr Nelukshi Wijetunga (“the Medical Assessor”). On 9 December 2024, the Medical Assessor assessed the plaintiff for the injuries referred for assessment which included the plaintiff’s right and left shoulder, cervical spine, thoracic spine and skin scarring from the surgeries to his right and left shoulders. The next day, on 10 December 2024, the Medical Assessor issued a certificate and reasons under s 7.23 of the MAI Act, which stated that the plaintiff’s injuries were caused by the motor vehicle accident and assessed his WPI to be 17%. However, the Medical Assessor declined to make an assessment under s 7.21(4) of the MAI Act in relation to the plaintiff’s left shoulder which at that time had undergone a recent surgery.

8. Allianz applied for a review of the Medical Assessor’s assessment pursuant to s 7.26 of the MAI Act. On 6 February 2025, a Delegate of the President of the PIC was satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect and the matter was subsequently referred to the Panel: s 7.26(5) of the MAI Act.

9. On 4 July 2025, the Panel constituted under s 7.26(5A) of the MAI Act, assessed the plaintiff’s WPI resulting from the injuries to his cervical spine and thoracic spine caused by the motor vehicle accident to be 5%. The Panel found that the plaintiff’s injuries to his right and left shoulders, the cervical spine (damaged spinal stimulator) and skin scarring were not caused by the accident. The Panel revoked the Medical Assessor’s certificate and issued a new certificate under s 7.23 of the MAI Act, which had the effect that the plaintiff was no longer entitled to damages for non-economic loss under s 4.11 of the MAI Act.

Relevant legislation

10. Section 7.21(1) of the MAI Act provides that “the assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accidents Guidelines”.

11. The State Insurance Regulatory Authority, Motor Accident Guidelines (version 9.3, effective from 6 December 2024 to 15 September 2025) (“Motor Accident Guidelines”) is the applicable version of the Motor Accident Guidelines at the time of the Panel’s decision and provides the approach to assessing the plaintiff’s degree of WPI as a result of an injury caused by a motor vehicle accident which includes the element of causation: Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [17] (Gleeson JA, Macfarlan and Leeming JJA agreeing); Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192; (2016) 77 MVR 206 at [41] (Leeming JA, McColl and Gleeson JJA agreeing).

12. Clauses 6.5, 6.6 and 6.7 of the Motor Accident Guidelines are as follows:

“Causation of injury

6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of [the MAI Act]. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides [American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, third printing, 1995)], as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.

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

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

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

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

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

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

13. The reference to “common law principles” in cl 6.5 of the Motor Accident Guidelines has been observed as “referring to the legal principles that courts or claims assessors are required to apply in determining causation” and includes “not only common law principles, in the strict sense, but also such principles as modified or explained by statutory provisions, such as s 5D of the Civil Liability Act 2002 (NSW), where applicable”: Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; (2012) 61 MVR 245 at [27] (S G Campbell J) (“Owen”); Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; (2020) 93 MVR 378 at [80]-[81] (Wright J); Insurance Australia Ltd t/as NRMA Insurance v Kirkpinar [2025] NSWSC 162 at [17] (Mitchelmore J).

The Panel’s reasons

14. The Panel in its reasons detailed the background to the application which included a summary of the findings by the Medical Assessor, the plaintiff’s complex medical history and the evidence which included in particular an ambulance report, a letter from St Vincent’s Hospital dated 2 March 2019 and medical records from Royal Prince Alfred Hospital and the plaintiff’s General Practitioner, Dr Nugent.

15. The plaintiff was re-examined on 20 June 2025 at Hornsby by two members of the Panel, Drs Barnsley and Cameron.

16. As to the Medical Assessor’s decision, the Panel noted at [18] that:

“The Medical Assessor questioned [the plaintiff] as to the lack of contemporaneous shoulder complaint after the accident and [the plaintiff] explained that he believed that they acknowledged the accident, but it appears the specialist were more concerned about decreasing opiates rather than any concern for new injuries. The Medical Assessor considered this to be plausible response.”

17. The Panel at [34] referred to the ambulance report dated 2 March 2019, where it was relevantly recorded that the plaintiff complained of “pain alongside L) side of body including shoulder and hip”.

18. The Panel noted at [35] as to what was recorded in a letter by Dr Young from St Vincent’s Hospital dated 2 March 2019, which stated that the plaintiff has “significant pain, 8/10, almost all over body pain”.

19. Under the heading “Summary” the Panel relevantly said:

“[86] In the light rail accident on 2 March 2019 [the plaintiff] sustained soft tissue injuries predominantly to his cervical spine.

[87] There is an absence of evidence that [the plaintiff] sustained injuries to his shoulders in the subject incident.”

20. Under the heading “Causation” the Panel stated the following:

“[90] The injuries caused by the subject incident are:

• cervical spine – aggravation of pre-existing degenerative disease, and

• thoracic spine – aggravation of pre-existing degenerative disease.

[91] These are the listed injuries expressed in usual medical terminology with the exceptions listed below. There is no evidence that the spinal stimulator was damaged in the subject motor incident.

[92] The following injuries are not caused by the motor accident:

• right shoulder – tear of rotator cuff tendon requiring rotator cuff tendon repair and reverse shoulder joint replacement surgery;

• left shoulder – tear of rotator cuff tendon requiring surgery and reverse shoulder joint replacement, and

• skin – scarring at the surgical repair sites of right shoulder and left shoulder.

[93] The Panel noted that [the plaintiff] stated that he had a brief loss of consciousness at the incident, so we have no specific details as to the way he fell, what structures were struck or how he landed. However, the documentation is consistent with [the plaintiff] falling to his left side. This means that it is possible he fell onto, a shoulder. The Medical Assessors therefore accepted that the accident could have caused injury to a shoulder or shoulders, solely on the basis that he had a fall.

[94] The Medical Assessors are of the opinion that to conclude that a shoulder injury did in fact take place in this setting it would be expected that there would be immediate symptoms of shoulder pain. Although [the plaintiff] claimed this was the case, there were no recorded complaints from either shoulder for a considerable time after the incident. [The plaintiff] was unable to adequately explain this lack of documentation. In the setting of demonstrable cognitive impairment, and unresolvable inconsistencies in the history, [the Panel] lends weight to the contemporaneous medical records, from several sources, which lack mention of early shoulder pain, particularly at St Vincent’s Hospital where several injuries are noted with corresponding radiology ordered. No mention of shoulder pain is included in hospital notes and no radiology undertaken of the shoulders. Further, the Prince Alfred Hospital makes no reference to shoulder pain in the visits after the accident. In addition, the Panel notes the subsequent fall that precipitated complaints of acute right shoulder pain. There is no evidence at all that [the plaintiff] fell to his right side in the motor accident. The Panel therefore considers that, on the balance of probabilities, the accident did not cause injuries to the shoulders.

[95] The Panel noted that the only mention of pain in the shoulder region around the time of the accident was in the ambulance record, which mentioned ‘pain along the left side of the body, including shoulder and hip’. This seems to be describing the extent of left sided pain, rather than a specific injury to the shoulder and/or hip. This observation is in contrast to the assessments at St Vincent’s Hospital accident and emergency where no specific shoulder pain was recorded, but diffuse pain was noted. The Panel lends weight to the formal medical assessment performed in a controlled hospital setting. It is quite reasonable to expect some discomfort from a fall onto the left side, causing ‘L) side of body pain’ but in the setting of a specific shoulder injury, the Panel would have expected persisting or worsening pain to be apparent and reported at St Vincent’s Hospital, and Royal Prince Alfred Hospital.

[96] [The plaintiff] has had degenerative arthritis at bilaterally at his shoulders that have gradually become more symptomatic and that is not connected with the subject accident.

[97] The GP records have [the plaintiff] complaining of right shoulder symptoms since 2014, with a note of right shoulder pain for over ten years as at June 2014. Ultrasounds prior to the accident demonstrated a full thickness incomplete tear of the supraspinatus.

[98] Having considered all evidence and findings on examination, the Panel does not accept, on the balance of probabilities that [the plaintiff] suffered a left or right shoulder injury caused by the accident.”

The present proceedings for judicial review

Ground 1: Contemporaneous evidence as determinative of causation

Summary of the plaintiff’s submissions

21. The plaintiff submitted that the Panel committed a jurisdictional error or error of law on the face of the record in determining causation of the plaintiff’s left shoulder as it found that a lack of contemporaneous evidence was determinative of the issue of causation and failed to take into account other available contemporaneous evidence available to it citing Bugat v Fox [2014] NSWSC 888; (2014) 67 MVR 150 (“Bugat”); Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558; (2020) 94 MVR 341 (“Robson”); Wharram v CIC Allianz Insurance Ltd [2020] NSWSC 1144; (2020) 94 MVR 43 (“Wharram”) and Francica v Allianz Australia Insurance Ltd [2015] NSWSC 1140; (2015) 71 MVR 537 (“Francica”). The other contemporaneous evidence which the plaintiff relies on includes the ambulance report and the letter from St Vincent’s hospital mentioned at [17]-[18] above in combination with the plaintiff attending consultations with Dr Nugent concerning left shoulder pain and undergoing a number of investigations, injections and ultimately surgeries on his shoulder.

Determination

22. It is well-established that if a review panel treats the lack of available contemporaneous evidence as decisive or determinative in its determination of the question of causation that is a jurisdictional error: see, eg, AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348 at [64]-[66] (Meagher, Simpson and Payne JJA); Owen at [52] (S G Campbell J); Bugat at [31]-[32] (R S Hulme AJ); De Gelder v Rodger (No 2) [2014] NSWSC 1355; (2014) 68 MVR 340 at [65]-[66] (Hamill J); Francica at [53] (Rothman J); Partridge v IAG Limited t/as NRMA Insurance [2019] NSWSC 127; (2019) 89 MVR 36 at [45] (Harrison J); Robson at [116]-[117] (Wright J); Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333 at [57] (Campbell J); Wharram at [37]-[39] (Davies J); Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548; (2021) 96 MVR 170 (“Norrington”) at [31]-[32] (Brereton JA); Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804; (2021) 96 MVR 456 at [39] (Walton J). However, in deciding a question of causation, a review panel is entitled to give weight to contemporaneous medical records. Furthermore, the absence of any record of complaint of symptoms following an accident might be a powerful indicator that a particular injury was not caused by the accident. Nevertheless, it is not decisive as “there are many reasons why a complaint might not be made, or recorded, promptly following an incident”: Norrington at [40].

23. The reasons of the Panel must not be construed “minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6; Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [16] (Bell CJ and Kirk JA). It is equally important to note that the Panel’s reasons must be read fairly and as a whole: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [76]-[77] (Bell P, Ward JA agreeing).

24. Having considered the Panel’s reasons, read fairly and as a whole, it is apparent that the Panel’s focus was on the existence or absence of contemporaneous documentation of injury to the plaintiff’s shoulders. The existence of documentation consistent with the plaintiff falling to his left side led to a conclusion at [93] that it was possible the plaintiff fell onto a shoulder and to the Panel’s acceptance that “the accident could have caused injury to a shoulder or shoulders, solely on the basis of that fall” (see [20] above).

25. Notwithstanding that finding, the plaintiff’s inability to explain the lack of documentation of shoulder pain; the absence of mention of early shoulder pain in the St Vincent’s Hospital records including radiology ordered and the Prince Alfred Hospital notes led to the conclusion at [94] that “the accident did not cause injuries to the shoulders” (see [20] above). Whilst the Panel referred at [95] to the mention of pain in the shoulder region in the ambulance report, the Panel contrasted that mention in the ambulance record with the absence of any specific shoulder pain being recorded at St Vincent’s Hospital.

26. Although the Panel refers at [94]-[95] to the contemporaneous medical records lending “weight”, it is plain that the absence in those clinical records of pain or injury to the plaintiff’s shoulder was treated as being decisive for its decision that, on balance of probabilities, the accident did not cause injury to the left or right shoulder.

27. Having made the finding at [93] that the accident could have caused injury to a shoulder or shoulders, the only factor in the Panel’s reasons that explains the conclusion that the injury to the left shoulder was not caused by the accident was the absence of documented contemporaneous complaints of shoulder pain or injury in formal medical assessments performed in a controlled hospital setting.

28. The material before the Panel included the plaintiff not presenting with injury to his left shoulder prior to the accident; consultations after the accident with Dr Nugent; consultations with Dr Petchell which involved a left shoulder arthroscopy and subsequent left shoulder replacement; Dr Bentivolglio’s assessment of injury to the left shoulder as a result of the accident; the medical history provided by the plaintiff and the re-examination by two members of the Panel. The Panel was obliged on all of the material before it, including the absence of documented contemporaneous complaints, to determine whether the accident was a contributing cause of the injury to the plaintiff’s left shoulder which was more than negligible. That obligation was not fulfilled in the present case by the Panel summarising some of the material in its reasons and stating at [33] that its conclusions had “been reached in the context of the entirety of the material”, with a similar statement at [98] (see [20] above).

29. By treating the absence of documented contemporaneous complaints as decisive, the Panel failed properly to exercise its jurisdiction. I am satisfied that failure was material to the Panel’s decision as had the error not been made the conclusion on causation could realistically have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7], [12]-[15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing).

30. Ground 1 is established.

Ground 2: Lawful reasons not given

Summary of the plaintiff’s submissions

31. The plaintiff contended that the Panel had also constructively failed to exercise its jurisdiction in that it failed to set out any reasons or any lawful reasons as to the cause of the plaintiff’s left shoulder injury and the subsequent need for injections and surgery of the plaintiff’s left shoulder.

32. The plaintiff referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] (“Wingfoot”), argued that the Panel failed to explain the actual path of reasoning by which it arrived at the opinion in fact formed and in sufficient detail to enable a court to see whether the opinion did or did not involve any error of law.

Determination

33. In light of my conclusion on Ground 1, this ground of review can be dealt with succinctly.

34. In Wingfoot, the High Court said at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ):

“The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

35. The Panel stated at [96] (see [20] above) its reasoning as to the cause of the plaintiff’s shoulder pain. Having considered that paragraph in combination with the other paragraphs of the Panel’s reasons, read fairly and as a whole, I am satisfied that the reasoning process can be readily discerned. Those reasons are provided in sufficient detail and disclose the error of law which has been identified in Ground 1. There is no gap in the reasoning to be filled: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6] (Leeming JA, Meagher JA agreeing).

36. Ground 2 is dismissed.

Conclusion and orders

37. As to costs, it is appropriate that the first defendant be provided with an opportunity to be heard on the form of any costs order to be made.

38. Accordingly, I make the following orders:

39. Set aside the second defendant’s decision made on 4 July 2025.

40. Remit the matter to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted review panel under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) for redetermination according to law.

41. As to costs:

(a) Direct that any submissions by the plaintiff as to costs, not exceeding 3 pages, be filed and served by 4:00pm on 16 March 2026. (b) Direct that any submissions by the first defendant as to costs, not exceeding 3 pages, be filed and served by 4:00pm on 23 March 2026. (c) Direct that any submissions by the plaintiff in reply, not exceeding 1 page, be filed and served within 2 days of receipt of the submissions provided for in Order 3(b) above. (d) Note that the issue of costs will be determined on the papers without an oral hearing.

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