Bradley v IAG Pty Ltd t/as NRMA Insurance Ltd

Solicitors: Farrell Lusher Solicitors (Plaintiff) Sparke Helmore Lawyers (First Defendant) Crown Solicitor's Office (New South Wales) (Second and Third Defendant) File Number(s): 2019/58244

Judgment

1. HIS HONOUR: On 21 February 2019, the plaintiff, Colin Bradley, filed a summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a decision and statement of reasons issued by the second defendant, the State Insurance Regulatory Authority ("SIRA") and made by the third defendant, which is a medical review panel appointed by SIRA. The decision was a determination that certain injuries suffered by the plaintiff, which he had alleged were attributable to a motor vehicle accident in 2011, had given rise to a whole person impairment ("WPI") of less than 10 per cent. The first defendant, IAG Pty Ltd (trading as NRMA Insurance Ltd), was the compulsory third party ("CTP") insurer of a vehicle which impacted that of the plaintiff, its driver having been responsible for the accident. The plaintiff also sought an order that the first defendant pay the plaintiff's costs of proceedings. There were submitting appearances by the second and third defendants and, accordingly, I will refer to the first defendant as the defendant.

Background to the proceedings

1. The plaintiff was born in 1957, and is 63 years of age. In 1989, he suffered injuries to his sternum, scapulae and left kidney in a work-related accident and has been in receipt of a Disability Support Pension since that time. In 2006, the plaintiff was assaulted, apparently receiving one or more blows to the head. X-ray images taken at the time of his cervical spine showed no abnormalities. In early 2011, following an injury sustained whilst doing voluntary work at a greyhound racing track, he had surgery done to his right shoulder.
2. On 18 April 2011, the plaintiff suffered an injury whilst driving his vehicle at Temora, New South Wales. When he stopped in a line of traffic waiting to enter a roundabout, a vehicle impacted the rear of his vehicle ("the accident"). The following day, the plaintiff was examined by his general practitioner, Dr Kurtzer, whose clinical notes state: "After impact [the plaintiff] was then slung forward - said his neck hurt and felt pins and needle[s] in his fingers. Pins and needles lasted 'a couple of minutes' … Had some chest soreness on the [left side] - blamed this on his seat belt. Today has a lot of soreness in the neck - has trouble moving the neck … Pain - his pain with pressure on C7, also marked bilaterally anterior [zygapophyseal joint], tenderness as well … Diagnosis XE1HU (Cervicalgia) or (neck pain NOS)."
3. The plaintiff consulted Dr Kurtzer on 4 August 2011, complaining of soreness in his arms. He was referred for an X-ray, which was reported as showing: "Disc space degeneration and narrowing at C6/7 with osteophyte formation, facet joint arthropathy was also noted. There was no prevertebral soft tissue swelling."
4. On 7 September 2011, the plaintiff complained to Dr Kurtzer of neck pain and cramping of his hands. A CT scan was carried out on 9 September 2011, with the report stating that: "… at C6/7 there was a calcified disc protrusion indenting the theca, but not causing any significant central canal stenosis. Mild bilateral foraminal stenosis was noted bilaterally at C6/7."
5. The plaintiff lodged a personal injury claim form dated 28 September 2011, in which his only injuries were described as: "… pain, discomfort, limitation in movement of the neck; weakness down both arms; loss of sleeplessness; anxiety: depressed: 80% of strength in arms."
6. On 28 October 2011, the plaintiff complained to Dr Kurtzer of neck pain radiating into his right arm, and was referred for an MRI scan, which occurred on 15 November 2011 and reported the following: "There are disc degenerative changes again noted at C6/7 with mild canal stenosis and a degree of C7 foraminal stenosis. No other relevant disc degenerative abnormality is seen elsewhere within the cervical spine."
7. In respect of the spinal cord as a whole, the report stated the following: "A normal appearance to the cord is noted with no increased cord signal or evidence of cord atrophy. No focal extramedullary intradural lesion is noted. No suspicious bony or paravertebral soft tissue abnormality is noted, particularly relating to any previous trauma."

The MAC Act - medical assessments and reviews

1. The relevant provisions of the MAC Act in respect of medical assessments and reviews are as follows.
2. Section 58 provides: "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, … (d) 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%. … (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor."
3. Section 60 of the MAC Act provides that a "medical dispute" may be referred to SIRA for assessment under Pt 3.4 of the MAC Act by either party to the dispute. In accordance with s 59, such a medical assessment must be made by medical practitioners who are suitably qualified and appointed by SIRA. Under ss 61(1) and (2), a medical assessor is required to give a certificate as to the matters referred for assessment, which is conclusive evidence as to those matters in any court proceedings or assessment by a claims assessor in respect of the claim concerned. The certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence, as provided for under s 61(9).
4. A matter may be referred for further medical assessment in accordance with s 62, which provides: "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 claims assessor. (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 member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (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 Guidelines

1. Parts 1.2 and 1.5 - 1.7 of the Guidelines state: "Introduction … 1.2 These Guidelines are based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). However, there are some very significant departures from that document in these Guidelines. A medical assessor undertaking impairment assessments for the purposes of the [MAC Act] must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed. In particular, chapters 1 and 2 of the AMA4 Guides should be read carefully in conjunction with clauses 1.1 to 1.46 of these Guidelines. Some of the examples in the AMA4 Guides are not valid for the assessment of impairment under the [MAC Act] … Causation of Injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the [MAC 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, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 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 judgment. 1.7 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 applicable in circumstances where there are multiple contributing causes. Impairment and Disability … 1.9 Impairment is defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means."

SIRA's assessments and reviews

1. The independent medical assessment was made pursuant to ss 58(1)(d) and 61 of the MAC Act, that is, an assessment of whether the degree of permanent impairment consequent to the injury caused by the motor accident was greater than 10 per cent. An assessment for any psychological injuries was carried out by Assessor Inglis Synnott, who certified on 31 January 2014 that the plaintiff had an adjustment disorder with anxiety and depressed mood, giving rise to a permanent impairment which was not greater than 10 per cent. An assessment of the plaintiff's alleged bodily injuries was conducted by Assessor David McGrath, who, according to SIRA's list of medical assessors, was an occupational medicine specialist. A certificate was issued by Assessor McGrath on 21 March 2014, certifying that, as a result of the accident, the plaintiff suffered soft tissue injuries to his cervical spine and "back", and a meniscal tear to his right knee, giving rise to a WPI that was less than 10 per cent, being approximately 5 per cent.
2. On 8 May 2014, the plaintiff applied to the proper officer of SIRA for a review of Assessor McGrath's decision pursuant to s 63(1) of the MAC Act. The application was not in evidence but I assume that, in accordance with s 63(3), the proper officer was satisfied that there was reasonable cause to suspect that Assessor McGrath's medical assessment was incorrect, because the matter was referred to a review panel comprised of Assessors Margaret Gibson, Robin Fitzsimons and Chris Oates ("the first review panel"). The assessment was carried out on 3 October 2014. On 7 October 2014, the first review panel revoked the certificate issued by Assessor McGrath and issued a new certificate stating that the only injury giving rise to a permanent impairment caused by the accident was to the cervical spine, stating: "Neck - Cervical spine soft tissue injury with possible aggravation of intervertebral disc degeneration". However, it resulted in a WPI of less than 10 per cent, being zero per cent.
3. In their reasons, the first review panel noted repeated complaints of neck pain made by the plaintiff to Dr Kurtzer. The first medical certificate issued by Dr Kurtzer, which was dated 10 September 2011 but which was based on his clinical examination of the plaintiff on 19 August 2011, "noted neck complaints but no other injuries or problems apart from those relating to the neck". The neck injury was the only injury identified in the personal injury claim form signed by the plaintiff on 28 September 2011. The plaintiff made further complaints about neck pain on visits to Dr Kurtzer in 2011 on 7 October, 4 November, 18 November, and 20 December. On a consultation with Dr Kurtzer on 10 January 2012, Dr Kurtzer noted: "for 2 weeks [the plaintiff] has had pain that has started in the neck". However, the first review panel found: "… there was a complete lack of objective medical evidence of any lower back, left hip and right knee complaints for a very long time after the subject accident, despite numerous general practitioner attendances."

Relevant legislative provisions and principles concerning judicial review of the review panel's determination

Supreme Court Act 1970 (NSW), s 69: an error of law

1. The application for judicial review is made pursuant to s 69 of the Supreme Court Act, which provides: "69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. … (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings: (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision."
2. Accordingly, this Court may exercise its discretion to quash the decision of the review panel if the plaintiff establishes one or more relevant errors of law on the face of the record.

Jurisdictional error

1. In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100], the High Court held that it is not open to a State legislature to take away a State Supreme Court's jurisdiction to grant relief in respect of jurisdictional error. As to the distinction between a jurisdictional error and an error of law on the face of the record, in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229, the Court (Meagher, Simpson and Payne JJA) stated, at [45]: "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'."
2. In Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211, Gleeson JA (Macfarlan and Leeming JJA agreeing) determined that a failure by a review panel exercising power pursuant to s 63 of the MAC Act to respond to a substantial argument can constitute a failure to accord natural justice, which is a jurisdictional error. As it happens, there are some parallels between the facts in Rodger v De Gelder with the facts in this case. The review panel in that case was required to consider whether the degree of permanent impairment of the injured person caused by a motor accident was greater than 10 per cent, with the evaluation of causation involving both a medical determination and a non-medical determination pursuant to the counterpart of cl 1.6 of the Guidelines in the relevant guidelines in force at the time. There was a substantial argument that Mr De Gelder had made a relevant and contemporaneous complaint of pain in the region of his thoracic spine, unsupported by clinical records, to which, it was alleged, the review panel had not responded. Gleeson JA stated: "88 The contention relied upon by Mr De Gelder in oral argument, was that the Panel incorrectly described the evidentiary position and thereby impliedly overlooked the evidence relied upon by Mr De Gelder in support of causation of his injury… 89 In [Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244] at [19] - [22], Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account. The context in that case was the obligation of a claims assessor exercising power under the MAC Act, s 94. His Honour said: [19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated: [24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. [20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued: [81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of 'refugee'. [21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the [MAC] Act requires that a claims assessor 'is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages': s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function. [22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2001) 243 CLR 164; 273 ALR 122; 119 ALD 446; [2010] HCA 48 at [35] (SZJSS). 90 These observations have equal relevance to the obligation of a review panel to consider the evidentiary material placed before the panel when exercising power under the MAC Act, s 63. As already mentioned, s 63(3A) expressly requires a review panel to undertake a new assessment of all the matters with which the medical assessment is concerned. Here the medical assessment matter which a review panel was dealing with is whether the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%: s 58(1)(d) MAC Act. It is, therefore, mandatory that the review panel address the medical assessment matter and carry out the statutory function. 91 As cl 1.8 of the Permanent Impairment Guidelines makes clear, the causation issue involves both a medical determination and a non-medical determination. Here, what is in issue is the non-medical determination by the Panel that Mr De Gelder's thoracic spine injury was not caused by the motor accident. 92 The primary judge found in effect that there were five significant deficiencies in that determination, all revealed by comparing the Panel's reasons with the evidence of Mr De Gelder having made complaint of the onset of thoracic pain at the time or and continuing after the motor accident. As the primary judge also found, taken together the five items relate to a matter of importance to the Panel's determination. This is not to suggest that the Panel had an obligation to consider every piece of evidence presented. But the Panel was required to respond to a substantial argument that Mr De Gelder did make a relevant and contemporaneous complaint of pain in the region of his thoracic spine. 93 Where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In such a case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). It is well accepted that with respect to the MAC Act, procedural fairness applies to a review panel exercising powers under s 63: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [8] (Allsop P). The particular content of this requirement will depend upon the facts and circumstances of the particular case: Trazivuk v Motor Accidents Authority (NSW) at [28]; Frost v Kourouche at [2] and [41]. 94 A failure to accord procedural fairness is a recognised form of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [60]. It is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; 179 ALR 513 at [10]. 95 It has also been said where the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, the decision-maker has failed properly to exercise their jurisdiction: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 at [102]-[103]. Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration v Yusuf at [41] (Gaudron J). 96 The question is whether this is what the Panel did here. As will be seen immediately below, it will not be necessary to decide whether a failure to respond to a substantial argument amounts to a failure to accord procedural fairness, or a constructive failure to exercise jurisdiction, or both."

A review panel's standard of reasons

1. As noted, the review panel was obliged by ss 61(9) and 63(6) of the MAC Act to "set out the reasons" for the matters that it had certified. In Wingfoot Australia Partners Pty Ltd v Kocac (2013) 252 CLR 480; [2013] HCA 43, the High Court considered the standard of reasons that was appropriate for a determination by a medical panel in a similar statutory scheme, pursuant to s 68(2) of the Accident Compensation Act 1985 (Vic), which required the review panel to whom a medical question is referred to "give a certificate as to its opinion and a written statement of reasons for that opinion". The High Court stated: "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. … 56 The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act. On the premise that [Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22] held that the opinion of a Medical Panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court … The application of that judicial standard in circumstances where an affected party had provided to the Medical Panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the Medical Panel itself did not accord with those opinions, meant that 'it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them' … Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else. … 65 The standard required of the written statement of reasons which s 68(2) of the Act obliges a Medical Panel to give for its opinion is that the statement must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law." (footnotes omitted)

Uniform Civil Procedure Rules 2005 (NSW)

1. Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that proceedings for judicial review must be commenced within three months of the date of the decision. These proceedings were commenced within time.

The review panel's reasons concerning the cervical spine injury

1. At the outset of its reasons, the review panel stated that it had decided to not examine the plaintiff, explaining: "The panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary because the appeal revolved around whether the initial injury to the cervical spine had resolved and whether subsequent surgery to the cervical spine was related to the initial injury and reasonable and necessary. The panel noted that there was substantial information concerning these questions which was more than adequate to come to a decision."
2. The review panel's consideration of the plaintiff's cervical spine injury is contained in two sections of its reasons. The first is under the heading "Panel Deliberations", which commences with the words: "The panel noted the following documents concerning injuries related to the motor accident". The documents referred to were the plaintiff's personal injury claim form dated 28 September 2011; the medical certificate of Dr Kurtzer dated 10 September 2011; and Dr Kurtzer's clinical notes of 19 April 2011, 4 August 2011 and 7 September 2011. The review panel also specified an X-ray report dated 5 August 2011; a CT scan dated 9 September 2011; and an MRI scan dated 21 November 2011. The review panel extracted from Dr Kurtzer's clinical note of 19 April 2011 the plaintiff's description of what occurred on impact, which I have recited at [3] of this judgment. Extracts from the two subsequent clinical notes were to the effect that the plaintiff continued to experience neck pain. The review panel extracts from the reports of the X-ray and MRI noted degenerative changes. The extract from the MRI report reproduced the part of Dr Duncan's report referred to in Dr Huntsdale's report dated 18 May 2012, which he had considered to be at odds with Dr Ow-Yang's opinion, and continued with the part reproduced at [7] of this judgment.
3. The review panel commented that the X-ray report was consistent with pre-existing degenerative change to the plaintiff's cervical spine. The CT scan revealed a calcified disc at C6/7, which the review panel said: "was consistent with a pre-existing disc condition/injury as such calcification could not have developed in the 5 months since the motor accident". The reasons then state: "The panel concluded that there was sufficient evidence of an injury to the cervical spine causally related to the motor accident on 18 April 2011. The panel considered that the injury to the cervical spine would be classified as Whiplash Associated Disorder Grade 2. The panel noted that [the plaintiff] had a previous cervical spine injury in 2006 with normal x-rays at that time. The panel concluded that the 2006 injury was the probable cause of the C6/7 disc degeneration and that this had developed over a number of years. The panel also considered that the 2011 accident was a minor rear end collision and would not have accelerated/exacerbated the pre-existing degenerative disc disease at C6/7. The panel noted that the referral of [the plaintiff] in December 2011 was for 'degeneration of cerviocothoracic intervertebral disc', which the panel believed pre-existed the minor motor accident. Whilst the minor motor accident may have caused a soft tissue injury it did not cause the degenerative disc disease at C6/7 nor did it cause a more than negligible contribution to the C6/7 degenerative disc disease (paragraph 1.7 of Motor Accidents Permanent Impairment Guidelines - 1 June 2018). The panel noted the examination findings of the previous Review Panel on 2 October 2014. Examination of the cervical spine at that time revealed no evidence of non-uniform loss of range of motion, muscle spasm or guarding or non-verifiable radicular complaint. The assessment of the cervical spine was DRE I - 0% WPI (more than 3 years after the motor accident). At that time there was no evidence of radiculopathy or spine cord compression. The panel has decided that the current assessment of the cervical spine is DRE IV - 25% WPI following [the plaintiff's] spinal fusion. The panel believes that the need for the spinal fusion was due to natural deterioration of his pre-existing degenerative disc disease at C6/7 and is NOT associated with the minor soft tissue injury from the current motor accident. This natural deterioration occurred both before and after the current accident and as such the correct assessment of the impairment of the cervical spine causally related to the subject motor accident is 0% WPI."

The plaintiff's application

1. The plaintiff seeks judicial review of the review panel's decision and its statement of reasons for its decision, contending in its summons that the decision contains both jurisdictional errors and errors on the face of the record, all of which relate to the review panel's findings as to the causation of the plaintiff's cervical spine injury. The plaintiff submitted that there were four such errors, as follows: "(a) The Third Defendant erred in the causation finding as regards the Plaintiff's cervical spine injury. Legally, and factually, the third defendant did not consider, or apply, the medical determination and the non-medical determination in considering and making the causation finding, and did not consider, or apply, the correct legal test. Legally, and factually, the third defendant misapplied, or misunderstood, the correct operation of a material contribution causation case, and misapplied, or misunderstood, what is legally, and factually, required before a finding of negligible causal impact can be made. (b) The third defendant erred in the causation finding as regards the Plaintiff's pre-existing cervical spine injury. Legally, and factually, it was unreasonable to find, and a finding without probative evidence, that the motor accident did not materially contribute to the cervical spine injury that lead to surgery at the cervical spine, and it was unreasonable, and a finding without probative evidence, to find that the incident of 2006 causally accounted for the post-motor accident condition that required surgical treatment. (c) The third defendant failed to apply correctly, or at all, the applying guidelines as to apportionment for the pre-existing condition that resulted from the 2006 incident. Had that task been done the Plaintiff's materially asymptomatic pre-existing condition would have meant that there was no apportionment to be made. Further, had that task been done the error in the causation test applied would have been identified. (d) The third defendant failed to engage with the Plaintiff's articulated case that the motor accident had caused cervical spine injury, including causation by way of a material contribution to the making symptomatic of an asymptomatic condition, in a setting where the dispute between the parties focussed on the question of whether the Plaintiff should be believed that he suffered cervical symptoms after the motor accident, and in a setting where the approach adopted, and findings made, by the third defendant did not form part of the articulated case of the first defendant and where the third defendant derived, and arrived, at its causation conclusion without that causation case forming a real and practical part of the medical dispute between the parties."

The defendant's response

1. In its response to the summons, the defendant opposed the relief sought by plaintiff on the basis that it constituted "an impermissible attempt to have the court examine for itself the real merits of those matters" and would subject the review panel's reasoning to detailed examination and analysis. It submitted that "legality must be the issue and not the merits of the particular application or proceeding below". The defendant submitted that the decision made was open to the review panel, there is no vitiating error of law on the face of the record apparent in the decision and that there is no jurisdictional error or constructive failure to exercise jurisdiction. It submitted that sufficient and lawful reasons were provided for the medical assessment.

Plaintiff's submissions

1. In written submissions, the plaintiff contended that his case as to his cervical spine injury and its causation was that, if it pre-existed the accident, it was asymptomatic until the accident occurred, becoming symptomatic as a result of the accident and progressively more severe, culminating in the plaintiff accepting medical advice for operative treatment. The plaintiff alleged four errors in the review panel's reasons.
2. Firstly, that the review panel had not set out, or dealt with, the plaintiff's case, which was a procedural fairness error of the type discussed in Rodger v De Gelder at [84]-[87] and [88]-[96]. Secondly, that the review panel failed to set out its path of reasons for not accepting the plaintiff's case, as it was required to do: Campbelltown City Council v Vegan at [121] and [122]. Thirdly, that it is not apparent what legal test as to causation was applied by the review panel, in particular, whether the required medical and non-medical determinations were correctly applied, as set out in cls 1.6 and 1.7 of the Guidelines (the plaintiff mistakenly referred to cls 1.8 and 1.9 in the preceding version of the guidelines, however, they are in the same terms as cls 1.6 and 1.7). If they had been, the plaintiff contended, the medical determination should have been to the effect that the accident materially contributed to the plaintiff's injury by transforming it from an asymptomatic to a symptomatic injury. Had the review panel considered it separately, the non-medical determination focused on whether or not the injury was sustained would have obliged it to consider the relevant documentary material and the plaintiff's version of events and case on causation. Fourthly, that the review panel formed a view as to the degree of force and nature of the collision in respect of the accident without regard to the plaintiff's version of events, causing it to fall into error; for example, the review panel placed weight on the fact that the plaintiff was able to drive his vehicle after the accident and that the police and ambulance service did not attend, as indicative of the level of seriousness of the accident.
3. The plaintiff submitted that the review panel's decision to rely on documentation and not undertake a clinical examination deprived it of the opportunity to hear the plaintiff's version of events. Had the review panel done so, it would have become apparent that it needed to consider his version of events and case on causation. The plaintiff submitted that the his WPI in respect of his cervical spine was 25 per cent, which then should have been apportioned in respect of the pre-existing condition pursuant to the Guidelines.

The defendant's submissions

1. The defendant's written submissions address each of the four points in the plaintiff's written submissions. In response to the first point, the defendant submitted that the review panel had acknowledged that it had read the material before it. There was no duty on the review panel to specifically refer to, or "engage" with, any particular evidence that was before it. An exception to that rule is that jurisdictional error may be established where a party has advanced "a substantial and clearly articulated argument relying on established facts" and the decision-maker fails to respond to that argument: see Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244] at [19]-[20]; Rodger v De Gelder at [89]-[96]. The defendant submitted that, even if there is an obligation to respond to a substantial and clearly articulated argument, it was not incumbent upon the review panel to recite the plaintiff's argument, only to respond to it.
2. In relation to the cervical spine injury, the review panel expressly considered the relevant documents and medical reports and considered whether a causal relationship with the accident was established, concluding that the disc degeneration would have arisen from the 2006 assault injury and the minor nature of the accident would not have accelerated or exacerbated the pre-existing injury. It is apparent from the review panel's reasons that it considered and engaged with the plaintiff's position regarding his claim of a causal relationship of the cervical spine injuries to the accident. The material reviewed by the review panel provided a reasonable basis for its conclusion.
3. In relation to the plaintiff's second point, the defendant submitted that there was no requirement for the review panel to expressly state why a particular submission of the plaintiff was not accepted, if the path of reasoning sufficiently demonstrated the route taken in coming to its findings and decision. The review panel's reasons were sufficient to demonstrate its path to its conclusions regarding the cervical spine injury.
4. In relation to the plaintiff's third point, the defendant submitted that it is apparent from a reading of cl 1.7 of the Guidelines as a whole that it is open to a review panel to find that there was an injury, but then to not find that it was caused or materially contributed to by the motor accident. Accordingly, there is no error or inconsistency in the findings of causation by the review panel.

Ground 1

1. The plaintiff's first ground alleges an error of law on the face of the record, being a failure by the review panel to consider or apply the correct legal test as to the causation of the plaintiff's cervical spine injury, in particular, as to whether there was a material contribution or a negligible causal impact of the accident on the injury. As developed in submissions, the plaintiff contends that it was not apparent whether the required medical and non-medical tests were applied, as set out in cls 1.5, 1.6 and 1.7 of the Guidelines.
2. I accept that a failure to comply with cls 1.5, 1.6 and 1.7 of the Guidelines is a judicially reviewable error, as was found to be the case by the Court in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen at [57], referring to the counterparts of cls 1.5, 1.6 and 1.7 in an earlier version of the Guidelines which were in identical terms.
3. The Guidelines obliged the review panel, at cl 1.6, in the context of the allegation in this case, to decide whether: "… a physical … factor … could have caused or contributed to [a] worsening of the impairment, which is a medical determination … [and whether] the alleged factor did cause or contribute to [a] worsening of the impairment, which is a non-medical determination …"
4. In so deciding, if the issue is contribution rather than outright causation, it must be "material" and "more than negligible": cl 1.7.
5. The review panel's reasons concerning the cervical spine injury are not ideally drafted and are not structured in the same manner as the questions posed by cl 1.6 of the Guidelines. In my opinion, however, a reading of them establishes that each of the questions were implicitly answered by the review panel and that it correctly applied the Guidelines as to causation.
6. The plaintiff contends that the "impairment" resulted from the injury to the cervical spine that required surgery in the form of a C6/7 anterior cervical decompression and fusion in June 2016. The review panel noted the opinion of Dr Casikar that this was a "frequently performed procedure to address issues with a degenerative disease of the cervical spine" and that the reports of the X-ray, CT scan and MRI imaging that were carried out in August, September and November 2011 respectively, found that the plaintiff had degeneration of the cervical spine. The CT scan that was taken on 9 September 2011 reported a calcified disc protrusion at C6/7 that, in the opinion of the review panel, "could not have developed in the 5 months since the motor accident". Logically, the material that established that the degenerative process had commenced prior to the accident, excluded it as a possible exclusive cause, leaving the question of whether the accident could have materially contributed to the degenerative process, that is, to a more than negligible degree.

Ground 2

1. The plaintiff's second ground challenges two of the review panel's findings as errors of law on the face of the record, on the basis that they are unreasonable and without probative evidence. These are the review panel's determination that the accident did not materially contribute to the injury that led to surgery, and that the cause of the injury requiring surgery was the 2006 incident.
2. If it were established that there was no evidence to support the findings, or that the decision was irrational or illogical and not based on findings or inferences of fact supported by logical grounds, then that would be an error of law. However, that is not so if a particular inference is reasonably open, even if reached as a result of illogical reasons: see Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [278].
3. In relation to the first of these challenged findings, as I have already noted, the review panel's determination that the accident had not materially contributed to the injury was stated in the context of references to various documents, which included the X-ray, CT scan and MRI reports in 2011 that established the pre-accident existence of the degenerative condition; the material concerning the apparent degree of force involved in the accident; the plaintiff's history of the accident that was recorded in the clinical notes of his general practitioner the following day; and a review of the relevant reports of his two neurosurgeons as well as the orthopaedic surgeon and neurosurgeon retained by the defendant. The review panel found that the plaintiff's cervical spine continued to degenerate, to a point that surgery became appropriate. In my view, there was material which the review panel expressly identified in its reasons that provided an evidentiary basis for their decision that the accident did not materially contribute to the plaintiff's need for cervical spine surgery.
4. In relation to the second challenged finding, in my opinion, the review panel's finding that the genesis of the cervical spine degeneration was the assault in 2006 was speculative and made without a sufficient evidentiary foundation. The only possible relevance of it was that it was the only identified pre-accident incident that, inferentially, involved an application of force to the plaintiff's head, in a timeframe that was consistent with the degenerative changes that were observed in the medical imaging undertaken between August and November 2011. However, this finding was irrelevant to the task before the review panel and does not detract from the reliability of its relevant decisions. It was necessary for the panel to determine whether the degenerative changes to the cervical spine pre-dated the accident; if so, it was irrelevant for it to go on to determine when they commenced or how they came about. Accordingly, although I accept that this finding was without an evidentiary foundation, it does not constitute an error of law on the face of the record because it was irrelevant to the review panel's decisions.

Ground 3

1. The plaintiff's third ground is that the review panel had "failed to apply correctly, or at all, the applying guidelines as to apportionment for the pre-existing condition that resulted from the 2006 incident", which is an apparent reference to the procedure required by cls 1.32 and 1.114 of the Guidelines. Clause 1.114 obliged the review panel to consider: "… whether any pre-existing spinal condition or surgery is related to the motor accident, is symptomatic and whether this would result in any or total apportionment."
2. The review panel found there was a pre-existing spinal condition which, although not symptomatic, was related to the injury. Clause 1.32 provided guidance on how this was to be done, depending on the reliability of clinical information on the pre-existing condition, which was by subtracting the estimate of the pre-existing impairment from the present impairment. In its reasons, the review panel assessed the then-present impairment, that is, following the surgery, at "DRE IV - 25% WPI" and concluded: "This natural deterioration occurred both before and after the current accident and as such the correct assessment of the impairment of the cervical spine causally related to the subject motor accident is 0% WPI."
3. The review panel's reasons do not disclose any error in how it applied the Guidelines as to apportionment for the pre-existing condition. For reasons I have already expressed, I am of the opinion that the reasons for the review panel's determination that the accident accounted for a negligible contribution to the injury do not disclose a failure by the review panel to comply with the Guidelines.
4. The plaintiff's third ground continues: "… Had that task been done the Plaintiff's materially asymptomatic pre-existing condition would have meant that there was no apportionment to be made. Further, had that task been done the error in the causation test applied would have been identified."
5. There could only have been no apportionment if, in the opinion of the review panel, the spinal injury requiring surgery was wholly attributable to the accident, and its interpretation of the CT scan taken on 9 September 2011 alone eliminated that as a reasonable possibility. The experiencing of the symptoms was not the injury. The relevance of the plaintiff's degenerative condition being asymptomatic before the accident was that it was evidence that the spinal injury that ultimately required surgery had been exacerbated by the accident.

Ground 4

1. The fourth ground is that the review panel "failed to engage with the Plaintiff's articulated case", which, as developed in submissions, was said to be a jurisdictional error of the type identified in Rodger v De Gelder, namely, a failure by the review panel to respond to a substantial argument that was advanced by the plaintiff. The fact that the plaintiff had to resort to various documents located in the plethora of material that was before the review panel and this Court in order to reconstruct that argument was indicative that it was not, in the terms of Dranichnikov v Minister for Immigration and Multicultural Affairs 77 ALJR 1088; [2003] HCA 26, as cited in Rodger v De Gelder at [89], a "clearly articulated argument", although I consider that, in its essence, the plaintiff's argument in terms of the cervical spine injury was quite simple and straightforward.
2. The most significant of the documents articulating the plaintiff's case identified by his Senior Counsel was the plaintiff's statement, relevantly recited at [72] above. The primary purpose of the statement was to explain inconsistencies in his case with Dr Kurtzer's notes. Dr Kurtzer's notes did not record a complaint of neck pain between the time of the first post-accident consultation, which was the day after the accident, and 7 September 2011, nearly five months later, although the plaintiff had consulted Dr Kurtzer in the interim. In addition, there was no reference to the plaintiff's other injuries until early the following year.
3. As to the relevant parts concerning the cervical spine injury, the plaintiff gave a one-sentence description in his statement of his bodily movements during the accident, in which he said he was "slung forward". The plaintiff explained that Dr Kurtzer, during his initial visit to him, advised the plaintiff to let his injuries settle and then return to see him. The plaintiff took pain relief medication but the problems continued, so he returned to see Dr Kurtzer and told him about his continuing symptoms, including the neck pain. The plaintiff did not say when that was, although he recalled being sent for an X-ray of his back and neck in about September 2011. The plaintiff had no pre-accident "problems" or treatment in relation to his neck and had no accidents or injuries since the accident. The statement by the plaintiff's wife was corroborative, stating that from the time of the accident, the plaintiff "always seemed to be in a lot of pain and was really stiff in his back and neck".

Orders

1. Accordingly, I make the following orders: 1. The three certificates issued by the third defendant on 5 November 2018 are set aside. 2. The plaintiff's application for review dated 8 May 2018 is remitted to the second defendant, to be referred to a panel of medical assessors for determination in accordance with s 63 of the Motor Accidents Compensation Act 1999 (NSW). 3. The first defendant is to pay the plaintiff's costs.

Endnote

1. The attribution of the authorship of this letter to Dr Ow-Yang is an error. It was in fact a letter by Dr Kurtzer dated 20 December 2011, which was addressed to Dr Ow-Yang. It is apparent from a correct reference to the authorship of the letter, at page 5 of the reasons, that it was a typographical error, and that the review panel was cognisant of the actual author.

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