Bradley v Insurance Australia Ltd t/as NRMA Insurance

Supreme Court of NSW|2015-07-14|Before: Adamson J, Review P

Solicitors: Farrell Lusher (Plaintiff) Lee & Lyons Lawyers (First Defendant) NSW Crown Solicitor (submitting appearance)(2nd and 3rd Defendants) File Number(s): 2014/363554

Introduction

By summons filed on 10 December 2014, Colin Bradley, the plaintiff, seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of a certificate and statement of reasons issued by the second defendant, the Motor Accidents Authority of New South Wales (the Authority), constituted by the third defendant, a review panel appointed under the Motor Accidents Compensation Act 1999 (NSW) (the Act) that comprised three assessors, Drs Gibson, Fitzsimmons and Oates (the Review Panel). All references in these reasons to legislation are, unless otherwise stated, references to the Act.

The Act

A person, who is otherwise entitled to damages under the Act, is not entitled to damages for non-economic loss unless the degree of permanent impairment is greater than 10%: s 131. Where there is a disagreement about the degree of permanent impairment suffered, the Court may not award damages for non-economic loss unless the degree of permanent impairment has been determined by an assessor, who conducts an assessment in accordance with s 133: s 132. The persons qualified to conduct such assessments are medical practitioners who have the relevant specialty for the task and are appointed by the Authority under s 59.
Following such an assessment, the assessor issues a certificate, which is conclusive evidence as to the matters certified in any court proceedings: s 61(1) and (2). Where there is more than one certificate assessing permanent impairment (because different parts of the body or different impairments are assessed), these figures are added (by reference to a combined table) to arrive at a figure for total permanent impairment. The assessment of permanent impairment is commonly referred to as whole person impairment (WPI) and is expressed in terms of a percentage.
Section 61(9) provides that a certificate is to set out the reasons for any finding by the medical assessor as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.
A party may apply for a referral of a medical assessment to a review panel but only on the ground that the assessment was "incorrect in a material respect": s 63. The proper officer of the Authority is to refer the application to a panel of at least three medical assessors if the proper officer is satisfied that the medical assessment was incorrect in a material respect: s 63(3). A review by a review panel is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 63(3A). Following the review, the panel may confirm or revoke the certificate of assessment issued by the single assessor: s 63(4).
The matters to be assessed by an assessor or a review panel include determinations of causation: for example, whether treatment relates to the injury "caused" by the motor accident (s58(1)(b)) and whether the degree of permanent impairment as a result of the injury "caused" by the motor accident is greater than 10%.
Section 81 of the Act requires the relevant insurer to give notice as expeditiously as possible as to whether it admits or denies liability for a claim.

Guidelines issued by the Authority under s 44 of the Act

The Authority may issue guidelines under s 44 of the Act. Section 44(7) provides that ss 40 and 41 of the Interpretation Act 1987 (NSW) apply to a guideline issued under this section in the same way as those sections apply to a statutory rule. Section 65(1) of the Act provides that medical assessments under Part 3.4 are subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.

The Permanent Impairment Guidelines

The Authority may issue guidelines with respect to the assessment of the degree of impairment of an injured person as a result of an injury caused by a motor vehicle accident: s 44(1)(c). It is common ground that the applicable guidelines are the MAA Permanent Impairment Guidelines (1 October 2007) (the Permanent Impairment Guidelines).
The Permanent Impairment Guidelines relevantly provide: 1.4 Original Assessments - These Guidelines apply to all assessments of the degree of permanent impairment. . . … 1.7 An assessment of permanent impairment is as prescribed under section 58 (1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. … 1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.` … 1.20 An assessment of the degree of permanent impairment involves three stages: (i)A review of medical and hospital records, including: all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and diagnostic findings from all relevant investigations. (ii)An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and (iii)The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 guides should be referenced.

The Medical Assessment Guidelines

The Authority may also issue guidelines with respect to 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: s 44(1)(d). It is common ground that the applicable guidelines are the MAA Medical Assessment Guidelines (effective 1 October 2008) (the Medical Assessment Guidelines).
The Medical Assessment Guidelines relevantly provide as follows: 9.10 When a dispute is considered ready to be allocated for assessment, an officer of MAS [Medical Assessment Service] shall determine the way in which an assessment is to proceed and may: 9.10.2 request that one or more Medical Assessors assess the dispute on the documentary material provided, having considered any submissions from the parties on this issue (see clauses 9.11 and 9.12) Chapter 11- Assessment procedure 11.1 In conducting an assessment an Assessor, including a member of any Review Panel, may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any issue in such manner as they think fit. . . . Review Panel assessment 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; … 16.21.7 determine which member of the panel will sign any certificates on behalf of the panel; … 16.25 If the Review Panel members are unable to agree on an aspect of the assessment, the determination of the majority of the Review Panel will be the determination of the Review Panel, or in the case of an evenly divided panel, the view supported by the Chairperson will be the determination of the review Panel, and that determination will include a statement as to the opposing view.

Supreme Court Act 1970

This Court has supervisory jurisdiction over those acting under legislation, including delegated legislation, under s 69 of the Supreme Court Act.

Uniform Civil Procedure Rules 2005 (NSW) (UCPR)

Rule 59.10 of the UCPR provides that proceedings for judicial review must be commenced within 3 months of the date of the decision. These proceedings were commenced within time.

Motor vehicle accident and the initial assessment of WPI under the Act

The plaintiff was involved in a motor vehicle accident on 18 April 2011. He lodged a claim with the Authority dated 28 September 2011 in which he claimed that he had sustained an "injury to the neck" in the accident. In the claim form the plaintiff identified Dr Kurtzer as the sole doctor who had treated him for injuries since the accident. The plaintiff signed the claim form which had been filled in on his behalf by his then solicitors. His signature was witnessed by a Justice of the Peace.
The defendant issued a notice under s 81 admitting breach of duty of care. As the plaintiff and the defendant were unable to agree on the degree of WPI, the Authority appointed Medical Assessor McGrath to make an assessment.
The material considered by Medical Assessor McGrath included a DVD of surveillance footage, the investigator's report dated 21 October 2013 and a statement by the plaintiff dated 12 December 2013 in which the plaintiff commented on what was depicted in the footage.
On 21 March 2014 Medical Assessor McGrath (who assessed the plaintiff on 13 March 2014) determined that the plaintiff's neck, back and right knee injuries were caused by the motor vehicle accident and determined a WPI of 5% (comprising 0% for the neck; 5% for the back; 0% for the right knee).

The referral to a review panel for assessment

The plaintiff sought a referral to a review panel pursuant to s 63 of the Act. His application for review was granted by Ms Redmond on behalf of the Authority. The Review Panel was constituted by Dr Gibson (a specialist in occupational medicine); Dr Robin Fitzsimons (a specialist in neurology) and Dr Chris Oates (a specialist in occupational medicine).
The material before the Review Panel included the clinical notes of Dr Kurtzer, the plaintiff's general practitioner. These notes do not record any contemporaneous complaint of back pain, right knee or left hip pain.
The Review Panel met by teleconference on 28 August 2014 and determined that a medical examination of the plaintiff was necessary for it to reach a decision. The Authority wrote on that date to inform the plaintiff that he would be examined by Assessors Gibson and Oates at Dr Gibson's rooms on 2 October 2014.
On 28 August 2014 the Review Panel, by its secretary, also wrote to the plaintiff's solicitors, relevantly in the following terms: "The Review Panel met by teleconference on 28 August 2014. In the course of their deliberations the Panel indicated that, based on the information available to them, they were inclined to find that the claimant's lumbar spine injury, right knee and left hip injuries were not related to the motor accident. In order to provide opportunity for the parties to address this issue before a final decision is made, the Panel has requested any submissions to be made by 26 September 2014. If no submissions are received by this date, the Panel will decide the dispute on the information currently available. . . . The Review Panel has also requested that the claimant attend for an examination. Details will be provided separately. . . ."
By letter dated 2 September 2014 the plaintiff's solicitors sought particulars of the evidence and findings on the basis of which the Review Panel had reached its preliminary view. On 4 September 2014 the Authority responded, on behalf of the Review Panel, to the plaintiff's solicitors' letter. The letter read in part: "On receipt, I sent your letter to the Review Panel who have advised that their initial inclination that Mr Bradley's lumbar spine, right knee and left hip injuries were not related to the motor vehicle accident is based on the below evidence: PICF 28/9/11 signed by claimant - neck only Initial medical certificate 10/9/11 - neck only with referred symptoms ie pins and needles in hands General Practitioner referral to neurosurgeon 20/12/11 "He presents with neck pain". Progress General Practitioner notes - 7/9/11, 7/10/11, 4/11/11, 18/11/11 up to 6 months post subject accident only neck and cervical spine referral complaints. The Panel invites the parties to provide any submissions on these initial considerations. In respect of the examination of the claimant and the request for further information, the Panel will base their final decision on all of the information available to them. Their currently held opinion is merely preliminary based on the evidence available at the time of their initial meeting.
On 22 September 2014 the plaintiff's solicitors wrote to Dr Kurtzer informing him of the issue raised by the Review Panel. The letter read in part: "Mr Bradley contends that he made verbal complaint to you of injury also to the back, left hip and right knee initially and as early as 19 April 2011, and that he was advised by you to the effect that he ought allow some time for the bruising and injuries to settle, and given the severity of the symptoms in relation to the neck, treatment focussed on that. … Accordingly, we ask for your written opinion as to whether you agree that Mr Bradley did in fact make complaint of these injuries, namely the back, left hip and right knee, as early as 19 April 2011 and thereafter at subsequent attendances (notwithstanding there is no mention specifically of injury to the back, left hip and right knee in the notes until quite some time after the accident) and that you otherwise agree with Mr Bradley's recollection of history of complaint. We also seek any reasoning by you as to the omission of reference to injuries other than the neck in the medical certificate date 19 September 2011. We also invite you to comment on any other matters that you consider relevant in relation to the matter and in particular your view (as the treating doctor) as to whether the injuries complained of by reference to the absence of any previous complaint in relation to these body parts in the time leading up to the MVA and the absence of any other injuries after 18 April 2011, leads you to conclude that the injuries now complained of are all causally related to the subject MVA."
Dr Kurtzer responded as follows by letter dated 1 October 2014: I have reviewed my clinical records of the above named in relation to his Motor Vehicle Accident on the 19th April 2011. Mr Bradley indicates that in addition to his Neck injuries resulting from the accident he also had complaints relating to his lower back, (L) hip and (R) knee. My records do not indicate until January 10 2012, that there are concerns relating to pain in the ((R) Knee. My immediate response to these complaints and the nature of his symptoms was to initially order a plain Xray for the lower back for the purpose of assessing the anaotomical (sic) alignment and features of the Lumbar Spine which may have related to the previous accident. Mr Bradley recollection of events are to be accepted. I have recorded in my notes that in the 2 months preceding his accident, Mr Bradley described his health as the best that it had ever been since a work related accident nearly 20 years previous. I have maintained a contemporaneous record of Mr Bradley's consultations and have exercised diligence in recording his symptoms and complaints. I am unable to offer any explanations as to the omission of complaints by Mr Bradley in relation to the initial Medical Certificate or subsequent encounters up to January 2012.
The plaintiff signed a statement dated 24 September 2014 in which he deposed to having made contemporaneous complaints of back, right knee and hip pain to Dr Kurtzer at the first consultation after the accident. He sought to explain the reference solely to neck pain in the claim form by stating that he did not fill in the form himself but that it was filled in by his solicitors and sent to him for signing. The plaintiff's wife (in a statement also made on 24 September 2014) deposed to his having complained to her about pain in his neck, back and knee at about the time of the motor accident.
The plaintiff's solicitor also obtained an undated handwritten statement of Rikki- Lee Brown, who said that she spoke to the plaintiff shortly after the accident. There was no evidence that the statement had been obtained earlier than about the time it was provided to the Review Panel. Ms Brown said in part: "Colin [the plaintiff] said he had pain in his neck and lower back and on a closer look I notice[d] Colin's right knee starting to swell."
By letter dated 2 October 2014 the plaintiff's solicitors provided a substantial amount of further material to the Review Panel, including: the statements by the plaintiff and his wife dated 24 September 2014; an undated statement by Ms Brown; and Dr Kurtzer's letter of 1 October 2014, referred to above.
The examination of the plaintiff took place on 2 October 2014 and was conducted by Drs Gibson and Oates.
The Review Panel conducted its medical assessment on 3 October 2014.

The decision of the Review Panel

On 7 October 2014 the Review Panel issued a certificate under Part 3.4 of the Act and determined that: The following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10% Neck - Cervical spine soft tissue injury with possible aggravation of intervertebral disc generation.
The reasons of the Review Panel record that all panel members had received and considered all the documentation described, including the reasons of Assessor McGrath, all the documentation which had been provided to him and the further documentation that had been accepted by the Authority and forwarded to the panel. The panel confirmed in its reasons that it had considered afresh "all aspects of the assessment under review".
The Review Panel's reasons said in part: "A. Evidence Considered The Panel considered all of the available evidence and decided that a re-examination of the claimant was necessary in order to reach a decision. This was because there was no neurological examination of upper or lower limbs documented in the Assessor's report. Accordingly, arrangements were made for the claimant to be examined by Assessors Gibson and Oates on 2 October 2014. It was decided that all injuries would be examined at that time. The Panel agreed to reconvene on 3 October 2014 to discuss the matter further. The Panel instructed the secretary to issue a notice to both parties stating that in the course of their deliberations, and based on the information available to them, they were inclined to find the claimant's lumbar spine injury, right knee and left hip injuries were not related to the motor accident."
The panel referred in its reasons to the additional material provided by the plaintiff's solicitors and addressed the discrepancy between the plaintiff's statement dated 24 September 2014 on the one hand and his claim form and the contemporaneous clinical notes of Dr Kurtzer on the other. The panel addressed Dr Kurtzer's letter of 1 October 2014 in the following terms: "The letter of Dr Kurtzer was considered. He doesn't explain why "Mr Bradley's recollection of events are to be accepted." An explanation is particularly relevant as he has provided, in the same letter, statements suggesting otherwise. He writes that his records prior to 10 January 2012 had recorded only neck injuries, and he had "maintained a contemporaneous record of Mr Bradley's consultations and have exercised diligence in recording his symptoms and complaints". The Panel were not persuaded that this letter constituted substantive evidence of other than neck injury being causally related to the subject accident."
The Review Panel then addressed what it referred to as the "Panel clinical examination" and set out in its reasons what had occurred in the examination, including the history the plaintiff had given. The reasons included the following: "The following day he visited his general practitioner Dr Kurtzer. Mr Bradley said by that time there had been a lot of bruising over his chest and also over his right knee. On specific questioning as to why none of those injuries were mentioned by the general practitioner, he said the doctor told him he should concentrate on his neck and the other injuries would settle down. He said later on there was more pain extending from his neck to both upper limbs."
The Review Panel addressed the question of causation and the connection between the complaint (or lack thereof) and injury to the affected area in the following passage from its reasons: ". . . The Panel noted that 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. They were of the view that had there been some trauma to these regions, there would have some evidence of complaint, if not objective findings over the course of these numerous post-accident consultations. If complaint had been made, the part would have been examined and investigations and/or treatment initiated. Injuries: ... 2. Back - disc soft tissue injury/L5/S1 disc injury The Panel considered all the documentation, but were not of the opinion that causation was established with respect to the back injury. This decision differed to that of the original Assessor. The Panel noted there was no mention of any lower back complaint in the following documentation: Initial medical certificate completed by the general practitioner 10 September 2011; The Personal Injury Claim Form signed by Mr Bradley 28 September 2011 and witnessed by a Justice of the Peace; The general practitioner progress clinical notes from the time of the accident (18 April 2011) and for the remainder of the year, despite regular visits to the general practitioner, with consultations 19 April, 7 September, 7 October, 4 and 8 November and 20 December 2011. … 4. Panel Decision ... The Review Panel found that the accident was NOT a cause of the following claimed injuries: Back - disc soft tissue injury/L5?S1 disc injury Right knee - meniscal tear Left hip - soft tissue/strain Permanent Impairment: The review Panel's findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to the findings as stated in the Permanent Impairment certificate issued by Assessor David McGrath because of their determination as to causation. Accordingly, the Review Panel has determined that this certificate is to be revoked and a new Permanent Impairment certificate has been issued by the Review Panel. … 6. Panel Certification This certificate has been viewed by Assessor Margaret Gibson, Assessor Robin Fitzsimons and Assessor Chris Oates who have confirmed that they are in agreement.

The parties' submissions

The plaintiff alleged that the Review Panel had failed to carry out its statutory obligation when it made the negative causation finding. Mr Romaniuk SC, who appeared with Ms Grotte for the plaintiff, referred me to various decisions of this Court and the Court of Appeal (including Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [52] per SG Campbell J; Bugat v Fox [2014] NSWSC 888 at [32] per RS Hulme J and De Gelder v Rodger (No. 2) [2014] NSWSC 1355 at [60] - [66] per Hamill J) in which the significance of a disparity between a claimant's present version on the one hand and the histories and complaints recorded as having been given by claimants to treating and medicolegal doctors on the other arose. He criticised what he described as the Review Panel's "determinative" reliance on Dr Kurtzer's clinical notes as if they constituted the only reliable evidence rather than a piece of evidence that was required to be weighed by them in making the assessment.
The plaintiff also contended that the Review Panel had failed to apply s 5D of the Civil Liability Act 2002 (NSW).
The defendant submitted that, in so far as the plaintiff sought to challenge the Review Panel's assessment, he was engaging in an impermissible attempt to inveigle the Court into conduct a merits review. Further, Mr Robinson contended that the panel came to its own conclusion as to causation in its own way, as it was obliged to do, cognisant of the legal tests for causation set out at 1.7 to 1.9 of the Permanent Impairment Guidelines. He referred to the fact that the Review Panel specifically referred to these Guidelines in its reasons (in the passage set out above).
The defendant relied on the principle that the reasons ought be read as a whole and contended that it was wrong to isolate particular passages of the reasons with a view to discerning error.

Consideration

Although Mr Romaniuk confirmed that the plaintiff did not challenge the adequacy of the reasons of the Review Panel, he contended that the reasons indicated that the panel considered the contemporaneous documents to be "determinative", rather than regarding them as a category of evidence that needed to be assessed with all other relevant evidence. This argument requires some consideration of the way in which reasons of a non-curial decision-maker (such as the Review Panel) comprised of medical practitioners, rather than lawyers, ought be read and understood.
The Review Panel is a "medical" Review Panel and its members are medical specialists who are required to undertake a "medical assessment". Its obligation to give reasons required it to set out "the actual path of reasoning" by which it arrived at the assessment: Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 at [48] (Kocak); Frost v Kourouche [2014] NSWCA 39. The reasons actually stated are to be understood as recording the steps that were in fact taken at arriving at that result: Waterways Authority v Fitzgibbon [2005] HCA 57 at [130] per Hayne J.
Some latitude is to be given to the reasons of an administrative decision-maker, which are not to be construed "minutely and finely with an eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280) and are to be given what has been referred to as a "beneficial construction": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272. However, a beneficial construction does not permit reasons to be inferred which are not stated if they are not necessarily implied by what is expressed: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] per Stone J. Although reasons need not be extensive, where more than one conclusion is open it is necessary for the decision-maker to explain a preference for one conclusion rather than another: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]-[122] per Basten JA.
The function of the Review Panel is fundamental to the way in which its reasons are to be read. In Kocak, the High Court considered a scheme analogous to the one that applies in the present case. At [47] the High Court (French, CJ. Crennan, Bell, Gageler and Keane JJ) said (omitting footnotes): The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its 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.
That the Review Panel's function is "neither arbitral nor adjudicative" has significant consequences for both the first and the second grounds. As far as the first ground is concerned, it means that the panel's decision about causation is not to be arrived at by the processes that would be used in a court room.
Although the Review Panel was obliged to be "aware" of the common law principles that would be applied in a court (cl 1.7, Permanent Impairment Guidelines), it was not necessary for the Review Panel to address s 5D of the Civil Liability Act, much less the decisions of this Court or higher courts on the question of causation. I do not, in any event, discern any inconsistency between the way in which the Review Panel approached the question of causation (which is pre-eminently a factual one, see Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2-13] HCA 10; 247 CLR 613, at [43] per French CJ, Hayne and Kiefel JJ) and the principles that apply in a court.
Were the issue of causation that had to be determined by the Review Panel required to be determined by a court, it is likely that the plaintiff, his wife and, possibly, Ms Lee-Brown would be called to give oral evidence on oath. Each would be cross-examined. Factual questions such as the extent of the plaintiff's voluntary role at the local dog track could be explored. Dr Kurtzer would probably also be called as a witness and cross-examined about the inconsistencies between his clinical notes on the one hand and the statement in his letter of 1 October 2014 that the plaintiff's account ought be accepted on the other. The clinical notes would be tendered. If a court were to find, on the basis of the clinical notes of Dr Kurtzer, that the plaintiff did not complain of back pain in the consultations following the accident and that he therefore did not injure his back in the accident, it would be required to give reasons for rejecting the accounts of the plaintiff, his wife and Ms Lee-Brown or in some other way reconcile its finding with that evidence. Failure to fulfill this function could lead to the court's decision being overturned and a re-trial ordered: see, for example, Coote v Kelly [2013] NSWCA 357 at [39] - [52] per Leeming JA, Basten and Hoeben JJA agreeing. As Leeming JA said at [46]: "Her Honour's findings amount, albeit implicitly, to a wholesale rejection of the testimonial evidence of Dr Wall and Dr Hiddins. It meant not only that Dr Wall and Dr Hiddins missed something which was obvious, but also either that they were lying when they said they had an actual recollection of the consultations, or at best were mistaken in their understanding of what an actual recollection (as opposed to a reconstruction) involves. It was open, having regard to the cross-examination, for her Honour to make such findings, but only if the reasoning process supporting it were exposed. One unpleasant aspect of curial adjudication is that on occasion, such findings need to be made. But they should be made expressly, not implicitly, and attended by a transparent and comprehensible reasoning process based on findings of fact reflective of the gravity of the court's conclusion."
The regime established by the Act and the MAA Guidelines for a Review Panel to assess the degree, if any, of permanent impairment arising from injuries sustained in a motor accident is, as the High Court emphasised in Kocak, substantially different. Although there is a requirement for procedural fairness, there is no right to a hearing as such. The Review Panel may decide to examine the claimant, or not, as the case may be. It can decide what weight to give to a particular piece of evidence (such as the plaintiff's involvement with the local dog track; or his experience in making previous claims) without putting a potential adverse inference to the claimant, or having an active contradictor.
To express the question, as Mr Romaniuk has done, in terms of curial processes, is to pose the wrong question. It is not a matter of the Review Panel rejecting the "evidence" of the plaintiff, his wife or Ms Lee-Brown. Rather, it is a question whether the Review Panel is satisfied that the plaintiff sustained injuries to his back, his right knee and left hip in the accident. It can be seen and inferred from the reasons of the Review Panel that it considered that, had the plaintiff sustained injuries in these areas, he would have felt contemporaneous pain and he would have complained to his general practitioner and that his general practitioner would have, consistent with his usual practice and the legal requirements, recorded such complaints. The absence of record led the Review Panel to infer that no such complaint had been made. The absence of complaint led to the Review Panel's conclusion that no such pain had been suffered and no injury to those areas sustained. The Review Panel made it clear that it did not regard Dr Kurtzer's letter of 1 October 2014 as displacing the inferences arising from the clinical notes.
The Review Panel also took into account the circumstance that the claim form referred only to an injury to the plaintiff's neck. Although the claim form had been filled in by the plaintiff's solicitor and not by the plaintiff himself, it had been signed by the plaintiff. Mr Romaniuk accepted that there was no basis for inferring that the plaintiff's then solicitor was acting otherwise than in accordance with his instructions when he filled in the claim form on the plaintiff's behalf.
In these circumstances it was open to the Review Panel to find, as it did, that the plaintiff did not sustain injuries to the areas claimed other than the neck in the motor vehicle accident. I reject the plaintiff's submission that the Review Panel impermissibly allowed the clinical notes to be "determinative". Such a submission does not do justice to the careful process undertaken by the Review Panel (after raising its concern with the plaintiff in the correspondence referred to above) in resolving the question.
The reasons reveal that the Review Panel had regard to the following in coming to a conclusion on causation: the parties' submissions; Dr Kurtzer's clinical notes; the claim form signed by the plaintiff on 28 September 2011; the initial medical certificate; various radiological reports and a Centrelink Medical Assessment, as well as the additional material provided by the plaintiff's solicitors which included the statements of the plaintiff, his wife and Ms Lee-Brown. The Review Panel also put to the plaintiff in the course of the examination their concerns about the apparent inconsistency between his history and the contemporaneous clinical notes. Although Mr Romaniuk criticised the Review Panel for asking the plaintiff in the examination to speculate on why there was no record of complaints in areas other than the neck in Dr Kurtzer's notes, I regard the Review Panel's approach as appropriate and consistent with (although more than was required by) procedural fairness.
That the Review Panel gave weight to contemporaneous clinical notes was unexceptional and reflects the well-known reliability of such records: see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548F-549D per Hope JA and Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 per Lord Pearce; cf. Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA.
I do not accept that the Review Panel had any obligation to press Dr Kurtzer on the contents of his letter of 1 October 2014. Such a requirement would go well beyond the bounds of what was required for a lawful assessment under the Act. I reject the suggestion that Dr Kurtzer's letter of 1 October 2014 had to be raised again with the parties or that it ought be inferred that the Review Panel treated the report as either "untrue" or "unreliable". It was open to the Review Panel to consider it with the other evidence and place such weight on it as it saw fit.
The plaintiff's submissions are, in substance, submissions of fact that could properly have been made on an appeal to the Court of Appeal under s 75A of the Supreme Court Act 1970 (NSW) from the decision of a trial judge of this Court or the District Court. However, they are inappropriate in an application for relief pursuant to s 69 of the Supreme Court Act.
Far from being (as the plaintiff would have it) "illogical", "irrational", "not supported by probative evidence" or "unlawful", I discern nothing in the Review Panel's approach to causation that reveals error, much less legal error of a kind that would give rise to relief under s 69 of the Supreme Court Act. The importance of respecting Parliament's intention to confer on the Review Panel the obligation of making an assessment is not to be underestimated. As Brennan J said in the oft-cited passage from Attorney- General (NSW) v Quin (1990) 170 CLR 35: Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power. If it were otherwise, the courts would be asserting a jurisdiction, in protection of individual interests, to override the law by which a power to affect those interests is conferred on the repository.
The first ground has not been made out.

The second ground: that the Review Panel was not properly constituted

The parties' submissions

The second ground arose from the circumstance that the re-examination of the plaintiff that was conducted as part of the Review Panel's assessment was conducted by two out of three of the assessors.
The plaintiff submitted that because the Review Panel could only be constituted by at least three medical assessors, it was necessary that any re-examination be conducted by all three of them (or more if the panel was constituted by more than three) acting together. The plaintiff submitted that there was no power, whether express or implied, in s 63 or any other provision of the Act that would permit the Review Panel to conduct a valid examination of a claimant unless all members of the panel were present throughout.
Mr Romaniuk relied on cl 16.21.7 of the Medical Assessment Guidelines in support of his submission that a specific power to delegate an aspect of the Review Panel's task was required (in that case signing the certificate) and that, as no such provision had been made for conducting the examination, it had to be conducted by all constituent members of the Review Panel.
Accordingly, the plaintiff contended that, since it was common ground that the re-examination of the plaintiff had been conducted by two out of three assessors (Dr Fitzsimons not having been present), the re-examination was invalid and the certificate and reasons also invalid. Mr Romaniuk did not seek to rely on any particular aspect of the present case to support this argument but contended that, as a matter of statutory construction, the three assessors (or more, if more than three had been appointed to constitute the Review Panel) were required to be present throughout any re-examination that the Review Panel determined was required.
Mr Romaniuk relied on the following passage in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [23] per Giles JA: Section 63 only applies when there has been a medical assessment by a single medical assessor; it does not apply if, as s 60(4) and s 61(1) permit, there has been assessment by more than one medical assessor. The occasions for a fresh medical assessment presented by s 61, subs (4) and subs (5), s 61(8) and s 62 are limited. The plain purpose of s 63 is that the collegiate professional expertise of three or more medical assessors should be applied in the review, resulting in an assessment which is more likely to be correct and to be accepted by the parties to the medical dispute.
The defendant submitted that there was nothing in the Act or the Guidelines that required all the members of the Review Panel to be present at any such re-examination. Mr Robinson contended that the statutory intention was plain in that the legislature (through the Act and the Guidelines, which are to be treated as delegated legislation) intended the Review Panel, and its individual members, to determine their own procedure as they saw fit. He contended that it was open to the Review Panel to determine that a re-examination ought take place (pursuant to cl 16.21.2 of the Medical Assessment Guidelines) but decide that it be conducted, as occurred in the present case, by two out of the three assessors. Mr Robinson relied on cl 11.1 of the Medical Assessment Guidelines in support of the submission that the fact that legislature specifically contemplated that a single Assessor who was also a member of a Review Panel could determine his or her own procedure indicated that the legislature contemplated that different aspects of the investigations leading to the assessment could be conducted by different members of the Review Panel as long as the actual assessment was made by all three of them.
Further, the defendant submitted that the plaintiff had been informed that he would be re-examined by two of the assessors. The defendant argued that as the plaintiff, who was legally represented at the time, had taken no objection to this course, the plaintiff had acquiesced in being examined by fewer than the full complement of members that comprised the Review Panel and, accordingly, relief under s 69 of the Supreme Court Act ought be refused on discretionary grounds.
The defendant relied, by analogy, on White v Ryde Municipal Council [1977] 2 NSWLR 909. In that case the question arose whether it was necessary for all members of a local council to see all relevant witnesses when making a statutory determination. The Court of Appeal said (Reynolds JA, Moffit P agreeing) at 923: "As a general proposition, it is plain enough that he who decides must hear. However, this must be understood in the sense that the decision maker has before him the evidence and submissions of those entitled to be heard. It is by no means a universal requirement that the decision making body must see and hear witnesses, much less actually hear submissions or representations. So much appears from the leading authorities on this subject: Local Government Board v. Arlidge [1915] AC 120 and Jeffs v. New Zealand Dairy Production and Marketing Board [1967] 1 AC 551."

Consideration

I understood the plaintiff to confine his challenge on the second ground to the circumstance that the examination of the plaintiff had been conducted by two out of three assessors who constituted the Review Panel. The plaintiff accepted that the presumption of regularity had not been displaced in respect of other aspects of the review, and did not contend that I ought infer that the decision to have the examination conducted by Drs Gibson and Oates was made other than by all three members of the Review Panel: see Carpenter v Carpenter Grazing Co Pty Limited (1987) 5 ACLC 506 at 514 (Hope JA, Samuels and Priestley JJA agreeing).
Whether the Review Panel was entitled to have the plaintiff examined by two assessors is to be determined having regard to the provisions of the Act and the Guidelines: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [92] per Hayne and Heydon JJ. The starting point is s 63. The application for review is to be referred to a panel of at least three medical assessors: s 63(3). A review panel is to make a "new assessment": s 63(3A). Accordingly, it is only the panel, comprised of all its members, which can conduct a "new assessment" and make the relevant determination.
The Permanent Impairment Guidelines provide that the assessment of permanent impairment involves three stages: a review of medical records; an interview and examination; and the preparation of a report: cl 1.20. It might be thought, if this provision were considered in isolation, that cl 1.20 required that each stage of the "assessment" be conducted by the Review Panel since it is the panel that is to conduct the "assessment". However, I do not consider this to be the preferable construction. The Guidelines (including the Permanent Impairment Guidelines and the Medical Assessment Guidelines) also confer (by cl 11.1 of the Medical Assessment Guidelines) a power on each individual assessor, including one who is a member of a Review Panel, to determine his or her own procedure. Further, while cl 16.21.2 of the Medical Assessment Guidelines provides that the Review Panel is to determine whether a re-examination is required, it does not provide that the Review Panel is to conduct the re-examination. The matters listed in cl 16.21 are matters which the Review Panel is to do itself; other matters involved in the assessment could, in my view, be done by one or more of the assessors, in accordance with his or her own procedure, as determined by cl 11.1.
I do not consider that cl 16.21.7, which provides for the Review Panel to decide which member will sign the certificate, has the effect that a specific power is required to authorize examinations to be conducted by a subset of the members who comprise the Review Panel, since I regard the latter task as falling within the procedure for conducting an assessment for which provision is made in cl 11.1.
I do not regard cl 16.25 of the Medical Assessment Guidelines as having any particular bearing on the present question since it deals with the question of disagreement between members of a review panel. In any event, there is no evidence of any such disagreement in the present case. For reasons given above, I assume that the members were unanimous both in their determination that the examination of the plaintiff ought be conducted by the two members who conducted it and in their ultimate assessment as revealed by the certificate and reasons.
Accordingly, I consider that the Act and the Guidelines permit the Review Panel to determine that a re-examination is to be conducted by two of its three constituent assessors. In my view, any such examination so conducted is valid, as long as the Review Panel has made a determination that it be conducted in that way. There is no suggestion that the Review Panel did not make such a determination or that the whole of the panel did not consider the report (by whatever means) of the examination by the two assessors who conducted it.
In these circumstances it is not necessary for me to consider the submission made by the defendant that the plaintiff had, in any event, waived compliance with any requirement that all three constituent members of the Review Panel be present throughout the examination.

Conclusion

For the foregoing reasons, I am not persuaded that any of the challenges made by the plaintiff to the assessment have been made out. The making of the assessment was open to the Review Panel. No error of law has been established.

Orders

I make the following orders: 1. Summons dismissed. 2. Unless an application for a different order is made to my Associate in writing within seven (7) days, order the plaintiff to pay the defendants' costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2015

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