Boga v AAI Limited trading as AAMI - [2022] NSWSC 560 - NSWSC 2022 case summary — Zoe

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Boga v AAI Limited trading as AAMI

[2022] NSWSC 560

Supreme Court of NSW|2022-03-30|Before: Dhanji J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-03-30

Before

Dhanji J

Catchwords

95 MVR 17 AAI Ltd t/as AAMI v Chan [2021] NSWCA 19
95 MVR 166 Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
[1990] HCA 21 Craig v The State of South Australia (1995) 184 CLR 163
[1995] HCA 58 Day v SAS Trustee Corporation [2021] NSWCA 71 De Gelder v Rodger (No 2) [2014] NSWSC 1355

Source

Original judgment source is linked above.

Catchwords

95 MVR 17 AAI Ltd t/as AAMI v Chan [2021] NSWCA 1995 MVR 166 Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1[1990] HCA 21 Craig v The State of South Australia (1995) 184 CLR 163[1995] HCA 58 Day v SAS Trustee Corporation [2021] NSWCA 71 De Gelder v Rodger (No 2) [2014] NSWSC 135568 MVR 340 Frost v Kourouche (2014) 86 NSWLR 214[2014] NSWCA 39 Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 48066 MVR 69 Insurance Australia Limited t/as NRMA Insurance v Asaner [No 2] [2016] NSWSC 107877 MVR 233 Jubb v Insurance Australia Ltd [2016] NSWCA 15376 MVR 228 Miles v Motor Accident Authority of New South Wales (2013) 84 NSWLR 632[2013] NSWSC 927 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6 Rodger v De Gelder (2011) 80 NSWLR 594

Judgment (18 paragraphs)

[1]

[6]

The legislative scheme

A helpful overview of the legislative scheme was provided by Beazley JA in Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [7]-[15].
In short, the MAC Act establishes a scheme of compulsory third party insurance and the payment of compensation for injuries sustained as a consequence of motor accidents occurring on or after 5 October 1999 and before the commencement of the Motor Accident Injuries Act 2017 (NSW) on 1 December 2017.
While some functions and powers under the MAC Act were transferred to the Personal Injury Commission Act 2020 (NSW) with the establishment of the Personal Injury Commission on 1 March 2021, cl 14C(3)(b) of Sch 1 of that Act provides that "the provisions of any Act, statutory rule or other law that would have applied to or in respect of [court proceedings which were commenced before 1 March 2021 and have not been finally determined before that day] had this Act not been enacted continue to apply". Therefore, the MAC Act continues to apply to this present dispute.
Section 44(1) provided, prior to 1 March 2021 as follows: 44 Medical Guidelines of Authority (1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following - (a) the appropriate treatment of injured persons, (b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided), (c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, (d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.
The Motor Accidents Medical Assessment Guidelines ("Medical Assessment Guidelines") were made pursuant to s 44(1) and apply to medical assessments under Part 3.4 of the MAC Act by virtue of s 65 (pausing to note that, while s 44(1)(d) and s 65 were repealed by Sch 6 of the Personal Injury Commission Act on 1 March 2021, they apply to this current application for the reasons discussed above).
Where medical disputes are referred to the State Insurance Regulatory Authority, the Authority is to arrange for the dispute to be referred to one or more medical assessors: MAC Act, s 60. The medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment: MAC Act, s 61.
Section 62 applies to matters that have previously been referred for assessment, and provides that such a matter can, in given circumstances, be again referred for assessment (which further assessment prevails over any previous assessments). Section 62 is at the centre of the current dispute and is discussed in more detail below.
Section 131 provides that 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%.

[7]

The history of the present matter

On 13 July 2016, the plaintiff was injured in a motor vehicle accident in Punchbowl. While he was sitting in a stationary vehicle, it was struck from behind by another vehicle. His vehicle subsequently struck the vehicle in front. The first defendant has admitted liability.
As part of his claim, the plaintiff seeks damages for non-economic loss, to which he is not entitled unless the degree of permanent impairment is greater than 10%: MAC Act, s 131. There is a dispute between the parties as to whether the degree of permanent impairment of the plaintiff, as a result of the injury caused by the accident, is greater than 10%.
On 1 May 2018, Professor Michael Fearnside issued a certificate under Part 3.4 of the MAC Act finding a permanent impairment of 19% based on his assessment of injuries to the plaintiff's spine and shoulders. Professor Fearnside also expressed the view that an injury to the plaintiff's left knee had not stabilised and was, in any event, outside his area of expertise.
On 31 October 2018, Dr Kalev Wilding issued a certificate finding a permanent impairment of 0% of the left knee (resulting in no change to Professor Fearnside's assessment).
On 19 July 2019, on application by the first defendant for a further medical assessment, a proper officer of the Medical Assessment Service ("MAS"), Josephine Redmond, directed, pursuant to s 62 of the MAC Act, that there should be a further assessment of the plaintiff's injuries previously considered by Professor Fearnside. This further assessment was referred to Dr Wilding.
On 9 September 2019, Dr Wilding assessed the plaintiff as having a permanent impairment of 12% and issued a certificate in the following terms: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: ● Cervical spine - musculoligamentous strain and aggravation of pre existing degenerative change ● Lumbar spine - musculoligamentous strain ● Left shoulder - tendonitis of the rotator cuff and bursitis ● Right shoulder - Ngyuen [sic] Principle"
On 16 October 2019, the first defendant lodged an application pursuant to s 63 of the MAC Act for a review of the medical assessment conducted by Dr Wilding and the plaintiff lodged a reply on 15 November 2019.
On 16 December 2019, a proper officer of the MAS, Michelle Bacci, was not satisfied that there was reasonable cause to suspect that the medical assessment of Dr Wilding was incorrect in a material respect and rejected the application for review. On 15 January 2020, the first defendant requested the same officer review this decision, but this was declined on 17 March 2020 on the basis the proper officer had no power to review her own decision.
By an amended summons filed in this Court on 17 September 2020, the first defendant sought orders quashing the certificate issued by Dr Wilding dated 9 September 2019, quashing the proper officer's decision of 16 December 2019 dismissing the first defendant's application for review pursuant to s 63 of the MAC Act and quashing the proper officer's decision of 17 March 2020 to decline to revisit her decision. On 24 December 2020, Cavanagh J dismissed this amended summons with costs: AAI Limited (t/a AAMI) v Boga [2020] NSWSC 1903; 95 MVR 17.
On 12 February 2021, following the lack of success discussed above, the first defendant made another application for a further medical assessment pursuant to s 62 of the MAC Act.
On 5 July 2021, a proper officer of the MAS, Sarah Edwards ("the delegate"), determined that the application should be referred for a further medical assessment as she was of the view that "there is additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment."
The present application seeks to set aside the determination of 5 July 2021.

[8]

Application for Judicial Review

As noted above, the plaintiff seeks an order in the nature of certiorari. The nature of certiorari was explained in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58, as follows (at 175-176): "... certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'."
The present case raises no issue as to fraud or procedural fairness. The availability of certiorari is dependant therefore on establishing error of law on the face of the record or jurisdictional error.
It should be noted at the outset that none of the grounds in the amended summons articulate whether the complaint is one of error of law on the face of the record, or of jurisdictional error, or both. It is of importance that grounds, in the context of appeals of this nature, do so. It is, additionally, necessary to identify with precision any error of law alleged. Further, while s 69(4) of the Supreme Court Act makes clear that the record includes the reasons for the decision, nice issues may arise as to what else is included in the record, either as part of the formal record or by way of other material "incorporated into the record": see Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166. It may, in a given case, be necessary to consider and address such issues.
If relief in the nature of certiorari is found to lie, the Court has a discretion to refuse such relief.
Having regard to the above, the plaintiff must establish the following matters: 1. There was an error of law; 2. The asserted error of law was either jurisdictional or "on the face of the record"; and 3. In the event that jurisdictional error or error of law on the face of the record is established, the Court should intervene.
Before moving on to an assessment of the grounds, some additional matters should be noted in relation to an application for judicial review. As stated by Hamill J in De Gelder v Rodger (No 2) [2014] NSWSC 1355; 68 MVR 340 at [31], "an application for judicial review must not become a merits review or an investigation into the facts, opinions and evaluations made by the decision maker". In Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21, Brennan J observed at 35-36: "Judicial review has undoubtedly been invoked, and invoked beneficially, to set aside administrative acts and decisions which are unjust or otherwise inappropriate, but only when the purported exercise of power is excessive or otherwise unlawful… The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
It is also inappropriate to scrutinise the reasons of an administrative decision-maker in the way that an appellate court might review a judgment: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272; De Gelder v Rodger (No 2) at [35]-[37] and the authorities cited therein. In Wu Shan Liang, Brennan CJ, Toohey, McHugh and Gummow JJ said at 271-272: "When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." (footnotes omitted)
However, the phrase "beneficial construction" in this extract of Wu Shan Liang should be read in light of Stone J's observations in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]: "The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked."

[9]

Section 62

As set out above, the issue before the delegate was whether to grant the first defendant's application to refer the plaintiff's matter for a further assessment in accordance with s 62 of the MAC Act.
That section provides as follows: 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part - (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or the President. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the President. (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.
The effect of a referral is the conduct of a further assessment of the injury. A certificate resulting from that further assessment will prevail over any previous assessment: s 62(2). The plaintiff, it may be assumed, wishes to maintain the current certificate issued by Dr Wilding, given that it assesses his whole person impairment at greater than 10%.
It being a referral by a party for the purposes of s 62, it was necessary to satisfy s 62(1)(a) and s 62(1A). That is, it was necessary to establish that there was "additional relevant information about the injury" and that that information was "such as to be capable of having a material effect on the outcome of the previous assessment". On satisfaction of those matters a discretion to refer the matter was enlivened, s 62(1) providing a matter "may be referred again on one or more further occasions", subject to the preconditions being satisfied. In Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228, Gleeson JA, with whom Meagher and Payne JJA agreed, said, with respect to s 62 (at [32]-[36]): "32. A number of aspects of s 62 should be noted. Each was common ground, except for the fourth matter below. First, it has been accepted that s 62 impliedly confers power on the proper officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subs (1A) are satisfied: Rodger v De Gelder at [70] (Beazley JA, McColl and Macfarlan JJA agreeing); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (QBE Insurance v Miller) at [4] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [78] (Meagher JA, Tobias AJA agreeing). 33. Secondly, in exercising the power of referral under s 62(1)(a) the proper officer performs the role of a gatekeeper. The capacity of the "deterioration of the injury" or "additional information" to affect a further medical assessment is a matter for the subjective satisfaction of the proper officer, not the determination of the court: Rodger v De Gelder at [113] (Macfarlan JA, McColl JA agreeing); QBE Insurance v Miller at [31] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [49]-[51] (Beazley P, Meagher JA and Tobias AJA agreeing). 34. Thirdly, the formation of the opinion or state of satisfaction required of the proper officer under s 62(1A) is subject to judicial review. The relevant question is whether the proper officer's opinion has been formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119; D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [220]. In QBE Insurance v Miller at [36], Basten JA explained the standard of review as follows: The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide. 35. In the present case, the appellant sought review on the basis that the proper officer misconstrued the terms of the MAC Act. 36. Fourthly, and contrary to the insurer's submissions, the power of referral is subject to a residual discretion ("may") given in s 62(1) of the MAC Act, whether or not to refer a matter for a further assessment. That the power of referral may be exercised or not, at discretion, is not contradicted by any contrary intention appearing in the MAC Act: Interpretation Act 1987 (NSW), ss 5 and 9; Ward v Williams (1955) 92 CLR 496 at 505-506; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [33]-[34]. Nevertheless, the discretion is not entirely unconstrained. The power conferred on the proper officer must be exercised in accordance with the subject matter, scope and purpose of the statute: Peko-Wallsend, 40. Further and again, contrary to the insurer's submissions, the existence of that discretion has been recognised in the authorities on s 62: see, for example, Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831; 71 MVR 322 (Mullin) at [35] (Beech-Jones J)."
It will be necessary to return to s 62 later in these reasons.

[10]

Material relied on by the first defendant

In the application before the delegate, the first defendant relied on the following material as "additional relevant information": 1. A Procare surveillance report dated 16 May 2019 and associated DVD; 2. A Verifact surveillance report dated 1 March 2020 and associated DVD; 3. Reports of Dr Harvey dated 2 January 2020, 23 March 2020 and 29 July 2020; and 4. Reports of Dr Menogue dated 11 January 2020 and 28 April 2020.
It should be noted that the Procare surveillance and report predate the assessment by Dr Wilding. Each of the other items postdate that assessment although the medical reports make reference to both the Procare surveillance predating Dr Wilding's assessment and the Verifact surveillance postdating the assessment. While in existence at the time, the Procare surveillance and report were not provided to Dr Wilding for the purposes of his assessment.
In the additional medical reports both Drs Harvey and Menogue confirmed their previous views as to the plaintiff's level of injury. In this sense there was no new opinion. The reports did, however, make reference to the surveillance material and provided opinions that that material was consistent with the earlier findings.
Dr Harvey initially examined the plaintiff on 18 March 2019 and provided a report on 19 March 2019. That report (which predated Dr Wilding's assessment) concluded that the plaintiff suffered a whole person impairment of 0%. Dr Harvey was subsequently requested to provide further reports. For the purposes of the report of 2 January 2020, he was provided with the Procare surveillance and Dr Wilding's assessment. The report states, that "[h]aving viewed this surveillance evidence and read Dr Wilding's MAS certificate I see no reason to alter my opinion as previously expressed in my report of 19/3/2019".
For the purposes of the report of 23 March 2020, Dr Harvey was provided with the Verifact surveillance. That report referred to the Verifact surveillance and said "[a]s the earlier DVD from Procare, [the plaintiff] has been shown at all times turning his head freely from side to side". The report continued, "I believe the manner in which he is moving his arms and his head during the surveillance is not compatible with the severe disability of which he complains". The surveillance referred to is, in context, the Verifact surveillance. The report concluded, "[h]aving seen this surveillance, I see no reason to alter my opinions as previously expressed".
Dr Harvey's report of 29 April 2020 was based on an examination of the plaintiff on that day. Based on that examination the report concluded that there had been "no significant change in [the plaintiff's] presentation" since last seen. The doctor also indicated his opinion that the plaintiff's condition had stabilised and that the continuing complaints were not considered "reasonable". In this regard, he stated that "[i]t is not anticipated that a rear-end collision of this type, where the patient was able to walk away after the accident, would still be causing widespread and continuing pain almost 4 years later".
Dr Menogue examined the plaintiff on 8 November 2017 and 21 March 2019 (pre-dating Dr Wilding's assessment). In the latter report he reported the plaintiff's whole person impairment to be 4%. He subsequently provided two further reports post-dating the assessment, relied on by the first defendant before the delegate as additional information. In his report of 11 January 2020, Dr Menogue referred to the Procare surveillance and stated his opinion that "the degree of activity seen in the surveillance material is quite inconsistent with the level of disability alleged" by the plaintiff. The report made some criticisms of Dr Wilding's assessment and ultimately stated there were "no other features identified or highlighted in the surveillance DVD and therefore I do not consider there is any reason to alter the opinion articulated in my report on 21 March 2019". Dr Menogue further examined and reported on the plaintiff on 28 April 2020. On this occasion he was also provided with the Verifact surveillance. He referred to that surveillance and the earlier Procare surveillance. Dr Menogue noted his earlier observations with respect to the Procare surveillance and then said with respect to the Verifact material, "[t]he surveillance of March 2020 does not add to my understanding of his physical capabilities when photographed". Dr Menogue continued, "[t]he DVD notes [the plaintiff] getting in and out of his vehicle around his home - again demonstrating no evidence of functional impairment". Read in context, this appears to be an assertion that the two lots of surveillance were consistent in demonstrating no evidence of functional impairment.

[11]

Submissions to the delegate

In order to understand the reasons of the delegate, the subject of attack in this Court, it is necessary to have some understanding of the approach of the parties before her. In submissions to the delegate, the first defendant contended that all of the material noted above at [41] was "additional relevant information about the injury" and "capable of having a material effect" on the outcome of the assessment. It was pointed out that none of the material was available to Dr Wilding when he conducted his assessment of 9 September 2019. It was also submitted that the material contained "more than just contrary findings of whole person impairment". Rather, it was submitted that the reports and surveillance evidence "disclose observations which were not previously considered by Assessor Wilding and which indicate that the original assessment may be incorrect". Detailed submissions then followed with respect to the findings of Dr Wilding and the material relied upon. Immediately prior to the conclusion, submissions were made under the heading of "residual discretion". Under that heading, it was noted that where the preconditions for referral are satisfied, there remains a discretion as to whether a referral should be made. This submission continued by stating "[t]he insurer respectfully requests that the Proper Officer utilise his/her discretion afforded by Section 62 and refer this matter for a further assessment, noting that fairness and accuracy require the claimant to be reassessed in light of the recently received surveillance footage, and the further reports of Dr Menogue and Dr Harvey which indicate that Assessor Wilding's determination is not valid".
In his submissions in reply, the plaintiff submitted that the preconditions for referral pursuant to s 62 were not satisfied. The plaintiff submitted that the Procare surveillance report was not "additional relevant information" and pointed out that it predated the assessment of Dr Wilding. It was submitted that the first defendant: "… elected to withhold service of the [Procare] surveillance report and DVD … which it now submits is relevant to the assessment of the [plaintiff's] level of whole person impairment. In circumstances where the insurer did serve and rely upon other evidence the claimant submits that the surveillance footage and report was strategically withheld by the [first defendant] at that time as they did not consider it to be of "such a character that it is capable of changing the outcome of the previous assessment if it were placed before the medical assessor."" (emphasis in original)
The quoted words are from Guideline 14.6 of the Medical Assessment Guidelines. Insofar as this appears to provide a more stringent test than in s 62(1A), clearly the section must prevail: see Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 per Meagher JA at [81], per Beazley P at [25]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 per Leeming JA at [45]. From this quote, it is apparent that when submitting the Procare material was not additional relevant information, there was a conflation of that consideration with the materiality consideration in s 62(1A).
The submissions then dealt with the detail of the surveillance and the doctor's observations with respect to it, and submitted that on analysis, the material was not of "such a character that it is capable of changing the outcome of the previous assessment if it were placed before the medical assessor".
In relation to the Verifact surveillance, the plaintiff conceded that "this footage was not available to the insurer or Assessor Wilding" for the purposes of his assessment. After analysing the material and referring to the doctor's opinion with respect to it, the plaintiff made the same submission with respect to its capacity to change the outcome of the previous assessment.
With respect to the further reports of Drs Harvey and Menogue, the plaintiff submitted that the surveillance footage was being used by the first defendant "in an attempt to masquerade the same opinions as previously expressed by Dr Harvey and Dr Menogue … which were already considered by Dr Wilding before he issued the most recent [certificate] on 11 [sic] September 2019 as 'new additional information'". The plaintiff noted that the further reports "in essence restate the same opinions and are largely similar to the previous reports". The plaintiff accepted that the "similarity in the findings and conclusions" did not automatically exclude the reports as comprising "additional relevant information", but submitted that the reports would not be of "such a character that it is capable of changing the outcome of the previous assessment if it were placed before the medical assessor". The submissions contended that the reports were "more of the same" rather than supplementary, not capable of changing the nature of the assessment, and were therefore not "additional relevant information". Again, there was a conflating of the materiality requirement in s 62(1A) with the "additional relevant information" requirement in s 62(1)(a).
Submissions were also made under the heading "Delay and the Public Interest". I will return to these submissions in the context of the grounds dealing with the discretion.

[12]

The reasons of the Delegate

The delegate set out the background to the application and listed the "documents" relied on by the first defendant in support of the application. After noting the terms of s 62 and that she had received and considered the submissions of the parties, the delegate set out the following under the headings "Reasons" and "Conclusion": "Reasons 5. Dr's [sic] Harvey and Menogue have considered the surveillance conducted by both Procare (pre-MAS assessment) and Verifact (post-MAS assessment) and come to the conclusion that the movements demonstrated in that surveillance do not accord with the findings made previously by Assessor Wilding. 6. In their respective reports, both doctors definitively state that the degree of activity and movement undertaken by Mr Boga is inconsistent with the level of disability alleged and that the previous findings of the Medical Assessor are not supported. 7. The applicant has relied on the case of Asaner in support of the provision of the surveillance and subsequent reports. The respondent has raised issue with the fact that both doctors' opinions have not changed from the previous reports after having viewed the surveillance. 8. In the case of Asaner the applicant relied on a supplementary report of a doctor which confirmed her previous view and the Court held that the Proper Officer was not precluded from evaluating that report as being additional relevant information. This was on the basis that if the report was borne out of the viewing of the surveillance, it is legally open to the decision-maker to decide if the re-statement of the previously held opinion considered in light of the surveillance is 'additional relevant information.' Therefore, it is open to me to consider whether or not the subsequent reports of Dr Harvey and Dr Menogue are additional relevant information. 9. I am satisfied that the Verifact surveillance and subsequent reports of Dr Harvey and Dr Menogue are additional relevant information about the injury. The applicant has provided surveillance footage and the reports of two doctors, who have viewed and considered that surveillance footage, which post-date the medical assessment. The information casts doubt over the consistency of the claimant's presentation at the previous medical assessment and therefore calls into question the resulting whole person impairment. 10. I am also satisfied that the additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previous assessment. If a Medical Assessor were to find that the claimant's presentation is inconsistent and that the injuries are not as severe as previously assessed, this may have an effect on the assessment of impairment of all of the injuries and could result in a finding that the claimant's impairment as a result of the accident is less than 10%. 11. Therefore, I am satisfied that the criteria for referral of the matter for further assessment, in accordance with the requirements of section 62 of the Act have been met. Conclusion 12. The application for further medical assessment is accepted and will be referred for further assessment of the medical dispute."
After dealing with the issue regarding the allocation of the matter the delegate concluded her decision by stating: "18. In making this decision, I have considered the following: ● The application, reply and all supporting documentation submitted in this matter and the previous related medical assessment matter/s. ● Motor Accidents Compensation Act 1999 ('the Act') ● Medical Assessment Guidelines ('the Guidelines') ● SIRA Permanent Impairment Guidelines ('the Permanent Impairment Guidelines') ● American Medical Association Guides to the Evaluation of Permanent Impairment, 4th Edition ('AMA 4 Guides') ● Nguyen v the Motor Accidents Authority& Zurich Australian Insurance Limited [2011] NSWSC 1351 ('Nguyen') ● Jubb v Insurance Australia Ltd [2016] NSWCA 153 ('Jubb') ● Insurance Australia Ltd t/as NRMA Insurance v Asaner [2016] NSWSC 1078 ('Asaner')"
It can be seen that [9] largely relates to a finding as to the requirement of "additional relevant information" and [10], a finding as to materiality. In relation to the former it appears that it was only the "Verifact surveillance and subsequent reports of Dr Harvey and Dr Menogue" that were considered to be additional relevant information. It is apparent that the delegate did not regard the Procare material as coming within s 62 on the basis that it predated the earlier assessment by Dr Wilding. It is unclear from the reasons as to whether the delegate had regard to the doctor's opinions as to the Procare material. In that regard there is ambiguity as to whether the words "which post-date the medical assessment" at [9], qualify only the doctors' reports or the reports and the surveillance footage.
I turn now to consider the grounds raised by the plaintiff in this Court.

[13]

Grounds 1 and 4: The asserted failure to view the surveillance or assess it separately

These grounds were dealt with together by the parties. Both grounds contend the delegate did not herself view the surveillance footage. In relation to Ground 1 it is further submitted that if she did, the delegate relied upon the assessment of the footage by Drs Harvey and Menogue, whereas she was required to form her own opinion as to whether the footage was "additional relevant information" and was "such as to be capable of having a material effect on the outcome of the previous assessment".
I am not satisfied that the plaintiff has established the delegate did not in fact view the footage. In stating, as she did (at [9]) that she was "satisfied that the Verifact surveillance… [was] additional relevant information about the injury", the delegate made plain that she was concerned with that material, separate to the medical reports. In the second sentence, the delegate specifically noted the first defendant "provided surveillance footage". If, as the plaintiff contends, the delegate was content to rely on the opinions of the doctors, that sentence would have been more conveniently expressed as "the applicant has provided reports of two doctors who have viewed and considered surveillance footage". In the next sentence, the delegate indicates that "[t]he information casts doubt over the consistency of the claimant's presentation". The information there referred to is the Verifact surveillance and the medical reports. That sentence includes, therefore, an expression of opinion as to the consistency (or lack thereof) between the surveillance footage and the plaintiff's presentation at the medical assessment. The inference to be drawn is that the delegate viewed the footage.
The above view is fortified by what was said by the delegate later in her statement of reasons, at [18]. There she indicated she had "considered the following" and set out a number of bullet points, the first of which was "[t]he application, reply and all supporting documentation submitted in this matter and the previous related medical assessment matter/s". The footage is properly to be considered part of the supporting documentation.
It is true that the delegate could have made plain that she had viewed the footage. The plaintiff contends that had the delegate viewed the footage, it can reasonably be expected that she would have said so in express terms. This was said to be particularly the case given the delegate's familiarity with the decision in Asaner. It might first be observed that Asaner does not purport to provide authority as to the minimum content of the delegate's reasons. In that case there was a dispute as to whether the delegate had viewed surveillance footage. Campbell J (at [20]) was not prepared to find that the delegate had not. For the purposes of the present case the most that can be said is that familiarity with Asaner might suggest an awareness of the potential for a dispute as to whether the footage had been viewed. Asaner was, however, drawn to the delegate's attention and considered by her for a different purpose. I do not accept that any assumed familiarity with all aspects of the decision elevated what was required of the delegate with respect to the content of her reasons.
The plaintiff's related complaint is that even if the delegate viewed the material, she did not form her own opinion as to the material, but rather deferred to that of the doctors. This was submitted to give rise to a related problem that the doctors' opinions were based on a viewing of all the surveillance material including the Procare material, which was not found by the delegate to be additional relevant information. Insofar as it was submitted that the delegate did not form her own view of the footage, I would not make this finding, essentially for the same reasons as those given with respect to her viewing of the footage. The reference (at [9]) to the "information" which was said to cast "doubt over the consistency of the claimant's presentation at the previous medical assessment" included the Verifact surveillance footage. That was sufficient to indicate the delegate's view that this footage, like the other material, casts doubt on the earlier assessment. I do not accept that the delegate was required to separately state that her view was consistent with that of the doctors.
While I am of the view the factual basis for the plaintiff's complaint is not established, I note that, in Asaner, while his Honour did not need to decide the matter, Campbell J observed (at [21]) that in his view "it may not be necessary in every case for [the delegate] to view a DVD to make his or her own independent decision whether to refer the dispute for a further medical assessment". His Honour went on to note that "[e]xcept… in what is likely to be, rare cases where the capacity to change the outcome of the previous assessment is self-evident from a consideration of the lay material itself a proper officer may permissibly form the view that what the doctor says of the surveillance is more significant to the task than his or her own necessarily lay impression". While I, similarly, do not need to decide the issue, I note my agreement with his Honour's observations.
Additionally, I am of the view that there is no substance to the complaint that the delegate erred in having regard to the doctors' opinions which were in part based on the Procare surveillance. It is convenient, at this point, to further consider the meaning of the expression "additional relevant information", which begs the question: additional as to whom, as to when or as to what? As noted above, the delegate, did not regard the Procare material as additional because it predated Dr Wilding's assessment. This was to, in effect treat "additional" as meaning additional based on the time of the relevant assessment, or possibly, based on the plaintiff's submission to the delegate, as additional as to content or issue. These approaches are not correct. In Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228, Gleeson JA observed (at [60]): "… The ordinary meaning of the word "additional" is "supplementary". In the context of s 62(1)(a) and subs (1A), the phrase "additional relevant information", as used in s 62, refers to information which is additional to that which was before the medical assessor when the previous medical assessment was carried out: Miles v Motor Accident Authority of NSW [2013] NSWSC 927 (Miles) at [34] (Hoeben CJ at CL). That the information relied on as being "additional", relates to the "same issue" as considered by the previous medical assessor, is not inconsistent with the ordinary meaning of "additional" when used in the phrase "additional relevant information". As Hoeben CJ at CL observed in Miles (at [34]): The comparison is between information which was before the medical assessor when the previous medical assessment took place and information which is additional to that which is of such a character that it is capable of changing the outcome of the previous medical assessment if it were placed before the medical assessor."
The reference in Miles v Motor Accident Authority of New South Wales (2013) 84 NSWLR 632; [2013] NSWSC 927 to the material being of "such a character that it is capable of changing the outcome" reflects Hoeben CJ at CL's consideration of the expression "additional relevant information" as used in s 62(1) in the context of the whole of s 62. The meaning of "additional relevant information" in isolation was made plain at [36], where his Honour said: "It follows that the clear and obvious meaning of the phrase "additional relevant information" as used in s62 is information which is additional to that which was before the medical assessor when the previous medical assessment was carried out."
There was, therefore, no basis to exclude the Procare material simply based on its timing, or the fact that it may have dealt with an issue previously considered. Thus, even if the delegate considered the doctors' opinion with respect to the Procare material, it did not follow that the delegate was in error, as the Procare material is capable of falling within the meaning of "additional relevant information". Further, even if the Procare material was not additional relevant information, it does not follow that a doctor's opinion as to that material would not be additional relevant information. That is sufficient to dispose of this complaint.
Before leaving this ground, I would however add, that it is not at all clear that the delegate did have regard to the doctors' opinions with respect to the Procare material. As set out above, Dr Harvey provided separate reports dealing with the significance of the Procare and Verifact evidence respectively. While Dr Menogue's report of 28 April 2020 dealt with both lots of surveillance, the report provided an opinion that the Verifact surveillance material specifically was consistent in "demonstrating no evidence of functional impairment". This was, consequently, capable of being separately considered by the delegate. Paragraph [9] of the delegate's reasons, while unclear, is at least consistent with a consideration of the doctor's opinions with respect to the Verifact footage alone.

[14]

Grounds 2 and 3: Error in concluding the reports were additional relevant information about the injury capable of having a material effect on the previous assessment

These grounds were dealt with together by the parties. It is convenient to adopt the same course in these reasons. As can be seen from the terms of the grounds, both complain of error in the delegate's conclusion that the reports of Drs Harvey and Menogue were additional relevant information. Ground 2 in addition complains with respect to the conclusion that it was information capable of having a material effect on the previous assessment, while Ground 3 complains as to the conclusion that it was additional relevant information about the injury.
With respect to these grounds the plaintiff contended that the reports did not contain any additional information, but rather simply confirmed the previous opinion of the doctors. It is true that both doctors affirmed their previously stated positions. However, in doing so it is also clear that they had regard to additional material, that being the surveillance material. The simple fact that the doctors reaffirmed their opinions did not mean that the information in their reports could not be considered as "additional relevant information". In Asaner, the basis on which the delegate determined a report was not "additional relevant information" was set out at [22]: "The gravamen of the proper officer's decision is that he was not satisfied that the additional information was relevant. Essentially this was because Dr Harvey-Sutton, relied upon by the insurer to explain the significance of the surveillance material, treated it as being merely confirmatory of her previous views which were before Dr Johnson, and not accepted by him to the extent to which her findings on examination differed from his. The proper officer made it clear in coming to that conclusion he was purporting to apply [Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443] and to some extent [Alavanja v NRMA Insurance Limited [2010] NSWSC 1182]. As the surveillance material was merely confirmatory of an opinion with which the medical assessor did not agree, the proper officer decided it, like the second report of Dr Harvey-Sutton, was not additional relevant information. I repeat the following from his reasons: "This is because it does not contain an opinion of a different kind as required by Singh, and is saying the same thing but using different or greater analysis, as outlined in Alavanja.""
Following a helpful discussion of the authorities his Honour said (at [30]): "Contrary to his decision, there is nothing in law which precluded the proper officer from evaluating Dr Harvey-Sutton's second report as "additional relevant information". I am not suggesting that the law mandated that decision. Only that in law that decision was open. Dr Harvey-Sutton stated that what was seen on the surveillance material was confirmatory of the opinion she had previously expressed. The insurer argued that the surveillance material depicted Mr Asaner exhibiting a full range of left shoulder movement. If that submission was borne out by his viewing of the film, it was legally open to the proper officer to decide that Dr Harvey-Sutton's restatement of her previously held opinion considered in the light of the surveillance material was additional relevant information."
The plaintiff, in effect acknowledging the above, in written submissions in this Court said: "The only additional information in the sense of being supplementary information was the doctors' analysis of the surveillance material. However, most of the surveillance material came from the Procare report and that material predated the assessment by Dr Wilding. The only post-assessment surveillance material was in the Verifact report."
The flaw in the above submission, to my mind, is that it is predicated on an obligation to excise the Procare material as a foundation for the doctor's opinion. As noted above in the context of Grounds 1 and 4, the Procare material was not before Dr Wilding. More fundamentally, in the context of the manner in which these grounds are framed, the opinions of Drs Harvey and Menogue with respect to the Procare material were not before Dr Wilding. In these circumstances there was, in my view, no error in the delegate having regard to the doctors' opinions as to that material.
I note that, having regard to the analysis with respect to Grounds 1 and 4, there is, in any event, some uncertainty as to whether the delegate sought to excise not only the Procare material but also the doctor's opinions as to that material. If the delegate took the latter approach, it would follow that the delegate had regard to the doctors' opinions with respect to the Verifact material only. For the reasons already given, the reports were capable of being read in this way.
The plaintiff submitted that the doctors were of the view that the Verifact material standing alone was not "capable of having a material effect on the outcome of the previous assessment". It was thus submitted that if the Procare surveillance, and any opinion based on it is excluded, the reports could not satisfy s 62(1A). In this regard the plaintiff relied on what was said in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19; 95 MVR 166 ("Chan") at [24]-[26]: "24. The proper officer's opinion which disapplies the prohibition upon referral for further medical assessment is the opinion that the additional relevant information is capable of having a material effect on the outcome of the previous assessment. That is not a high bar. It does not involve a prediction that the further medical assessment will, more probably than not, lead to a materially different outcome. 25. However, in order to form a view one way or the other as to the capacity of additional relevant information to have a material effect on the outcome, it is obviously necessary for the proper officer to turn his or her mind to the original assessment and the reasons supporting that assessment, and then to evaluate the extent to which, if at all, the new material impacts on what has already been determined. 26. The prohibition imposed by s 62(1A), turning as it does upon the capacity of information to have a "material effect", is necessarily future-looking and speculative. It is not for the proper officer himself or herself to guess the outcome of any further assessment. But it is necessary for the proper officer to form a view on whether the additional information has the capacity to have an effect on the outcome, and whether any such effect is material."
For the reasons already given, I do not accept that the delegate was required to exclude the Procare material and the doctors' opinions based on the Procare material. It appears at least possible, however, that she did exclude it by not considering it "additional". This raises the question as to whether, if she did exclude it, she properly "turn[ed] [her] mind to the original assessment and the reasons supporting that assessment" and "evaluate[d] the extent to which" the doctors' opinions of the Verifact surveillance impacted on the earlier determination. That is, if she restricted herself to the Verifact material and opinions based on it (albeit wrongly), was her state of satisfaction properly reached?
The reasons, in stating (at [9]) that "[t]he information casts doubt over the consistency of the claimant's presentation at the previous medical assessment and therefore calls into question the resulting whole person impairment", suggest that the delegate answered the right question. Nor do I accept the plaintiff's claim that the doctors' opinions, based only on the Verifact material could not support the conclusion. The doctors were of the view that the Verifact surveillance was "not compatible with the severe disability of which he complains" (Dr Harvey, 23 March 2020) or was effective in "again demonstrating no evidence of functional impairment" (Dr Menogue, 28 April 2020). The fact that the doctors were of the view this was consistent with the earlier Procare surveillance does not alter the materiality of the Verifact material, or the doctors' opinions with respect to it. That is, the doctors' reports are capable of being understood as stating that the Verifact surveillance did not add anything to the Procare surveillance, and not that the Verifact surveillance did not add anything at all.
Grounds 2 and 3 are not made out.

[15]

Grounds 5, 6 and 7: Asserted errors relating to the residual discretion

Again, these grounds were dealt with together by the parties and can be conveniently dealt with together in these reasons.
As has been set out above at [39], there were three steps the delegate was required to take before referring the plaintiff's matter for further assessment pursuant to s 62. She was required to be satisfied that: 1. there was "additional relevant information about the injury" (s 62(1)(a)); 2. that information was "such as to be capable of having a material effect on the outcome of the previous assessment" (s 62(1A)); and 3. her discretion to refer the matter should be exercised.
As can be seen from the delegate's reasons set out above, no consideration was given to the discretion.
The first defendant contends that there was no error in this regard, or at least any error was not jurisdictional error, having regard to the way the issues were framed before the delegate.
As noted above, the first defendant, in its submissions seeking the referral made reference to the discretion, and as to why it should be exercised in favour of a referral. The plaintiff's submissions concluded with the heading "Delay and the Public Interest". Under this heading the plaintiff referred to "the public interest in the finality of administrative decision-making" and observed that it is also "an important factor which must be considered in determining whether to allow this application." The plaintiff further stated that "the MAS Guidelines allow any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant to be considered when determining if a 4A Application ought to be allowed". Following this, further reference was made to the public interest in the finality of litigation and to the history of the matter including various appeals and reassessments since its commencement in 2016.
Having raised the above matters, the submission, however, continued: "…whilst this does not preclude any further reassessment, the claimant submits that the evidence relied on by the insurer in bringing this application are not of a character that would be capable of changing the outcome of the previous assessment if it were placed before the medical assessor and as such, it would be contrary to the objects of the Act and the objects of MAS to allow the current 4A Application to succeed" (emphasis added)
This submission is curious. Again, there appears to be a conflation, this time between the materiality requirement and the exercise of the residual discretion. It is unclear as to why the author sought to link the history of the proceedings with the materiality requirement. If the materiality requirement is not satisfied, then there would be no question as to the exercise of the discretion.
The first defendant submits in this Court that the plaintiff sought to invoke the discretion solely on the basis that the material relied on by the plaintiff was not capable of having a material effect and the delegate decided this issue unfavourably to the plaintiff, thereby disposing of his submissions with respect to the discretion.
While there is some force in the first defendant's submission, I am of the view that the delegate erred in failing to consider the discretion. Given the exercise that the statute required, I am further of the view that that error was jurisdictional in nature - that is, there was constructive failure by the delegate to exercise the jurisdiction reposed in her.
In this regard, it should be noted that, as pointed out above, "additional relevant information" is simply information additional to that which was before the medical assessor when the previous medical assessment was carried out. It is not relevant to that test that the material was in existence and could (or should) have been put before the assessor. Further, the requirement that the additional relevant information "is capable of having a material effect on the outcome of the previous assessment" is "not a high bar": Chan at [24]. In every case in which s 62 is in issue there will have been at least one prior assessment. Given the threshold requirements in s 62 are not particularly stringent, it will be a rare case in which there is not at least some issue as to whether the discretion to refer should be exercised.
Here, there were a number of factors that were plainly relevant to the discretion. The history of the matter, as has been set out above, was protracted. The application was based on the surveillance material and the doctors' opinions with respect to that material. Both doctors made plain that there was nothing in the Verifact material which added to their opinions, based on, inter alia, the Procare material. In other words, it appeared from the doctors' reports, that any additional insights based on surveillance could have been provided based on the Procare material alone. It follows from this, that any relevant observations in the subsequent reports (other than those made with respect to Dr Wilding's assessment) could have been made prior to Dr Wilding's assessment. There was no explanation as to why the first defendant did not seek to rely on the Procare material, or opinions with respect to it prior to Dr Wilding's assessment.
I accept that the plaintiff did not address these matters and their relevance with clarity before the delegate. The discretion was, however, raised. There was reference to the public interest in the finality of administrative decision making as an "important factor which must be considered" in determining whether an application such as the present "ought to be allowed". The submission also referred to the fact that the "matter has now been subject to various appeals and reassessments since its commencement". It is true that the submission immediately conceded (correctly) that this did not preclude further assessments, and repeated the submission with respect to materiality in a way that can be understood as a contention that further delay was not warranted in circumstances where the assessment would not change. However, the fact that the submissions had already addressed this issue tends to suggest that something more was being addressed. That is particularly so when considering that these submissions were made under a separate heading of "Delay and the Public Interest".
The present case involved more than simply a failure to address an argument or submission relied on by the plaintiff: cf Day v SAS Trustee Corporation [2021] NSWCA 71 at [37], relied on by the first defendant in this matter. Rather, the issue here goes to the operation of the statutory provision. It is not necessary to decide whether, as the plaintiff contended, any case in which a delegate fails to address the discretion, will be one of jurisdictional error. It is sufficient for present purposes to observe that the issue of the discretion was before the delegate but was never addressed. In these circumstances, I am satisfied that jurisdictional error has been established.

Boga v AAI Limited trading as AAMI

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