Briggs v IAG Limited t/a NRMA Insurance

The motor vehicle accident and injuries

1. The plaintiff claimed that, as a result of the accident on 22 May 2018, he suffered injuries to his right leg, his cervical spine and his lumbar spine, including an annular tear of the L4/5 disc, among others.
2. If a claimant's only injuries resulting from a motor accident are "minor injuries" within the meaning of that expression in the MAI Act, there is no entitlement to damages, by virtue of s 4.4, and the entitlement to statutory benefits ceases after 26 weeks, by operation of s 3.28 of that Act.

Dispute as to a medical assessment matter

1. There was a dispute between the plaintiff and NRMA as to whether the injuries suffered as a result of the accident were "minor injuries". "Minor injury" is defined in s 1.6 of the MAI Act, which provides relevantly for present purposes: "(1) For the purposes of this Act, a minor injury is any one or more of the following: (a) a soft tissue injury, .... (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. … (4) The regulations may- (a) exclude a specified injury from being a soft tissue injury … for the purposes of this Act, or (b) include a specified injury as a soft tissue injury … for the purposes of this Act. …".
2. Clause 4(1) of the MAI Reg provides: "An injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) is included as a soft tissue injury for the purposes of the Act."
3. As a result of the last clause of s 1.6(2), if there is a complete or partial rupture of ligaments or cartilage, the injury will not be a "minor injury". From p 6 of the review panel's certificate and reasons dated 2 February 2021, it appears that the core matrix relating to a vertebral disc is cartilage and the annulus is a ligament.
4. The dispute about whether the plaintiff's injuries which he alleged were suffered as a result of the accident were minor injuries gave rise to a "medical assessment matter" within the meaning of s 7.1(1) of the MAI Act, by virtue of cl 2(e) of Sch 2, which establishes that the question of "whether the injury caused by the motor accident is a minor injury for the purposes of the [MAI] Act" is a medical assessment matter.

Medical assessment

1. As a result of there being a dispute about a medical assessment matter, the plaintiff was assessed by a medical assessor in accordance with s 7.20 of the MAI Act.
2. On 14 December 2018, Medical Assessor Carr gave a certificate, under s 7.23(1), in the following terms: "The following injury: 1. Right leg 2. Cervical spine 3. Lumbar spine 4. L4/5 disc bulge is a MINOR INJURY for the purposes of the Act".
3. Medical Assessor Carr's reasons included the following: "[Mr Briggs] sustained soft tissue injury to his lumbar spine in the motor vehicle accident on 22 May 2018 and has evidence on MRI scan of 14/08/2018 which shows a minimal L4/5 lumbar disc bulge and a small annular left-sided tear without any foraminal stenosis or nerve impingement. He has no right-sided annular L4/5 disc tear. … 25. The following injuries WERE caused by the motor accident: 1. Right leg 2. Cervical spine 3. Lumbar spine 4. L4/5 disc bulge … 27. The following injuries caused by the most accident have resolved ● Nil. There has been no resolution of his cervical or lumbar pain and he does suffer referred right leg pain from his L4/5 disc injury. 28. Minor injury … His examination today of his lumbar spine and lower limbs does not confirm any injury to a spinal nerve root that manifests in neurological signs. He therefore has minor injury to his lumbar spine. …".
4. Mr Briggs applied, under s 7.26(1) of the MAI Act, for the medical assessment to be referred to a review panel for review and this was done.

Review by first review panel

1. This first review panel proceeded to determine the matter without re-examining the plaintiff. On 7 November 2019, it revoked the previous certificate and issued a new certificate together with reasons. The certification was as follows: "The following injury: ● Cervical spine - soft tissue injury ● Lumbar spine - soft tissue injury is a MINOR INJURY for the purposes of the Act".
2. In their reasons, the review panel said that they noted and confirmed the findings of the MRI scan of the plaintiff's lumbar spine dated 14 August 2018 including: "Comment: Minor disc desiccation with minimal disc bulge at L4/5 associated with a left posterolateral lateral annular tear but no significant canal or foraminal stenosis from this. Otherwise a normal study."
3. In relation to the L4/5 annular tear, after considering a number of articles including one referred to as the "Spine Journal" article and other matters, the first review panel concluded as follows: "the L4/5 disc findings and the annular fissure were not acute traumatic injuries sustained in this motor vehicle accident of 22 May 2018."

First judicial review application

1. Mr Briggs sought judicial review of the first review panel's decision and was ultimately successful, with Harrison AsJ setting aside that decision on 29 September 2020: Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318; 94 MVR 127. In those proceedings, Harrison AsJ made orders as follows: "The Court declares that: (1) The decision of the Review Panel dated 7 November 2019 is vitiated by jurisdictional error. The Court makes an order: (2) In the nature of certiorari removing into the Court the decision of the Review Panel and quashing that decision. The Court further orders that: (3) The matter as it relates to findings on whole person impairment arising from the accident is remitted to the State Insurance Regulatory Authority to be determined according to law. (4) The first defendant is to pay the plaintiff's costs on an ordinary basis."
2. Her Honour's reasons for making those orders are set out in her judgment referred to above. Mr Briggs's grounds of review in those proceedings were that the review panel erred in the following respects: 1. by denying the plaintiff procedural fairness, in that it did not give him notice of its intention to rely on the Spine Journal article; 2. by failing to apply the correct principles of causation to the plaintiff's injury; and 3. by failing to give proper and lawful reasons for its decision, in breach of s 7.23(7) of the MAI Act.
3. As to the first ground of review and after noting that the review panel had included significant portions of the Spine Journal article as part of its reasons without indication that they were quotations and without acknowledgement, Harrison AsJ held, at [60]: "…it is my view that the Review Panel in these proceedings used the [Spine Journal] article to draw an important adverse conclusion about the plaintiff's case. The Review Panel had an obligation to provide the plaintiff with notice, and an opportunity to respond, before taking into account concepts drawn from an unknown source. To fail to do so was to deny the plaintiff procedural fairness. As such, the decision of the Review Panel should be set aside."
4. Her Honour did not uphold the second or third grounds of review.
5. As a result of the orders of Harrison AsJ, the plaintiff's review of the medical assessment of Assessor Carr was allocated to a differently constituted, second review panel, which comprised the third defendants in this case, in order to complete a fresh review according to law.

Review by second review panel

1. The second review panel determined that a re-examination of the plaintiff was not required and proceeded to determine the matter on that basis.
2. On 20 February 2021, the second review panel issued a certificate as follows: "The Current Review Panel confirms the Review Panel Certificate dated 7 November 2019. The following injuries: ● Cervical spine - soft tissue injury ● Lumbar spine - soft tissue injury is a MINOR INJURY for the purposes of the Act".

Current judicial review application

1. As noted above, on 20 May 2021, the plaintiff sought judicial review of the second review panel's assessment as set out in the certificate of 20 February 2021. The relief sought was relevantly as follows: "1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring the invalid decision and/or medical assessment and Review Panel Certificate of the Third Defendant, the Medical Assessors Review Panel as was constituted by the Personal Injury Commission of NSW, the Second Defendant, namely, the assessment dated 20 February 2021 made purportedly pursuant to sections 7.23 and 7.26 of the [MAI Act] ("the review panel decision"). 2. An order in the nature of mandamus remitting the matters the subject of the Review Panel decision and the Review Panel Certificate to the Second Defendant for re-allocation of the matter to a differently constituted Medical Assessors Review Panel for determination of the matter according to law."
2. The plaintiff contended that the second review panel had made jurisdictional errors and/or errors of law on the face of the record and identified the specific grounds of review as follows: "Ground 1: The Review Panel failed to conduct the assessment afresh as required by section 7.26(6) of the Act and thereby failed to perform its statutory task and constructively failed to exercise its jurisdiction. Ground 2: In relation to the finding as to the causation of the injury to the lumbar spine, the Review Panel asked itself the wrong question and applied the wrong test. The Review Panel failed to lawfully deal with the issue of causation, and in doing so, constructively failed to exercise its jurisdiction. Ground 3: The Review Panel failed to take into account all relevant evidence as required by clause 5.6 of the Motor Accident Guidelines 2017. Ground 4: The Review Panel failed to respond to a substantial and clearly articulated argument made by the Plaintiff. This constitutes a constructive failure to exercise jurisdiction, and a denial of procedural fairness. Ground 5: The Review Panel erred in law on the face of the record in failing to give proper and lawful reasons for its decision in breach of section 7.23(7) of the Act."
3. In order to consider these grounds, it is necessary first to identify the relevant statutory and other provisions relating to a review panel's functions under the MAI Act and then to review the second review panel's reasons.

Relevant statutory and other provisions

1. The objects of the MAI Act are set out in s 1.3(2)(a)-(h) of the MAI Act and relevantly include the following: "(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities, (b) to provide early and ongoing financial support for persons injured in motor accidents, … (d) to keep premiums for third-party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for minor injuries, … (f) to deter fraud in connection with compulsory third-party insurance, (g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes, ...".
2. In undertaking a medical assessment review under the MAI Act, the second review panel was required to comply with s 7.26(6) of that Act which provides as follows: "The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned."
3. It was not in dispute that the Motor Accident Guidelines (Version 6 effective from 18 December 2020) (Guidelines) applied in relation to the second review panel's review.
4. Part 5 of the Guidelines dealt with assessing whether an injury was a minor injury and contained the following provisions: "General provisions for assessment 5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a minor psychological or psychiatric injury caused by the motor accident. 5.4 Diagnostic imaging is not considered necessary to assess minor injury. 5.5 A diagnosis for the purpose of a minor injury decision should be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer. 5.6 The assessment of whether an injury caused by the accident is a minor injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from: (a) a comprehensive accurate history, including pre-accident history and pre-existing conditions (b) a review of all relevant records available at the assessment (c) a comprehensive description of the injured person's current symptoms (d) a careful and thorough physical and/or psychological examination (e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."
5. The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided: "Causation of injury 6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the 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. 6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
6. In relation to the review of a medical assessment by a review panel, Part 7 of the Guidelines relevantly provided as follows: "Scope of the medical review 7.278 The matters in dispute before a medical review panel can be limited by an agreement between the parties as to the degree of permanent impairment of an injured person that has resulted from a particular injury, or whether a particular injury was caused by a motor accident, under section 7.25 of the Act. The medical review panel process 7.279 The review panel must be conducted in the way that best supports the objects of the Act, given the facts and circumstances of the particular claim and the particular medical assessment, which may include undertaking the panel review on the papers, using teleconferences, video conferences, face-to-face meetings or medical examinations as appropriate. 7.280 The medical review panel may determine the review procedure, is not bound by the rules of evidence, and may inquire into any matter relevant to the issues in dispute in such manner as it thinks fit. This may include seeking the assistance of a merit reviewer or claims assessor to assist the panel to inquire into any matter relevant to the issues in dispute. 7.281 The review panel may consider material that was not provided before the medical assessment being reviewed was made."

The second review panel's reasons

1. The second review panel's reasons for its certificate of 20 February 2021 were set out in the certificate, as required by s 7.23(7) of the MAI Act.
2. The second review panel commenced its reasons with the following: "1. Background The medical assessment conducted by [the first] Review Panel dated 7 November 2019 was referred to this Review Panel for determination under section 7.26 of the Act. … 3. Assessments under Review Assessor Carr had certified the following: ● Cervical spine - soft tissue injury ● Lumbar spine - soft tissue injury is a MINOR INJURY for the purposes of the Act".
3. There appear to be at least two errors in those paragraphs. First, it was not the case that the first review panel's certificate of 7 November 2010 or its reasons were referred to the second review panel for determination. The decision contained in that certificate had been quashed. Secondly, Medical Assessor Carr did not certify what was set out in section 3 of the second review panel's reasons. What Assessor Carr actually certified is set out above at [15] above.
4. The second review panel then continued its reasons as follows: "4. Disputes identified by the Parties The Review Panel considered the Application for Review and noted that the following aspects of the assessment were disputed: The plaintiff sought a review of the [first review] Panel decision on three grounds. 1. The plaintiff was denied procedural fairness, by not receiving notice of a scientific journal article, upon which the Panel relied. 2. There was error in the application of causation principles 3. There was error in the reasoning of the Panel in reaching their conclusion of minor injury The Supreme Court NSW in a ruling 29 September 2020 accepted the first point, but not points two and three. [Associate] Justice Harrison ruled, that the Panel had introduced concepts from a scientific journal article, which was not made available to the plaintiff. The judge argued, that concepts introduced in the article such as 'violent' and 'less than violent' do not appear in the guidelines and were used to draw an adverse conclusion about the plaintiff's claim. Had to the Panel receive submissions on the content of this article from both parties, they may have reached a different conclusion."
5. From section 4, it appeared that the second review panel proceeded on the mistaken basis that it was to review the first review panel's assessment limited to the ground upheld by Harrison AsJ, namely that the first review panel had relied on a scientific journal article which had not been made available to the plaintiff in breach of the duty to accord procedural fairness.
6. After identifying the documents considered and the relevant legislation and guidelines, the second review panel's reasons then contained the following: "8. Matters Considered and Decided by the Review Panel The Review Panel considered afresh all aspects of the assessment under review. A. Evidence Considered The Review Panel considered all the available evidence and decided that: ● A re-examination of the claimant was not necessary in order to reach a decision, because the Supreme Court NSW judgement 29 September 2020 indicated only an issue of procedural fairness relating to the interpretation and availability of science pertinent to settlement of the claim. ● Accordingly, the Panel proceeded to re-examine the facts of the case and research the scientific literature for any further knowledge which might assist at reaching a valid decision."
7. The first and second dot points under the heading "Evidence Considered" indicated that, contrary to the second review panel's statement that they "considered afresh all aspects of the assessment under review", they understood their task to be to review the first review panel's assessment having regard only to the ground upheld by Harrison AsJ in first judicial review application.
8. The reasons of the second review panel then continued: "B. Additional Evidence An internet search was conducted seeking to obtain all past and recent high quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain. Relevant references the Panel would rely upon in their deliberations were distributed to the parties. The plaintiff lawyer has responded with an undated response received by the Panel on 19/2/2021. Further references in support of their claim are included and acknowledged below. The conclusions reached [in the plaintiff's response received on 19 February 2021] are: 'The Claimant accepts that disease can cause intervertebral pathology with or without precipitating trauma. It is not however correct to say that annual [sic] disc pathology, and annular tears of circumferential discs in particular, cannot be interpreted as traumatic. The studies quoted do not support that position and there are numerous other studies in supported [sic] above which would contradict that assertion. A common theme of each of the studies above is that each case must be assessed individually. Given that this Claimant's injuries occurred in circumstances where: 1. he was relatively young; 2. he had no history of pre-existing lumbar spine pain; 3. the circumstances of the accident were particularly violent; then the overwhelming conclusion is that the annular fissure is traumatic of origin.' (Emphasis added by review panel)". (underlining in original)
9. The second review panel's reasons then recorded their relevant deliberations as follows: "C. Panel Deliberations The Panel identified two main issues in the establishment of minor and non-minor injuries under the Legislation. 1. Identification and tissue interpretation of pathology as revealed by modern imaging technology such as MRI scanning. 2. Scientific methodology required for establishing the cause of identified pathology. The Panel accepts that the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma. The proposed mechanism of injury is an acceleration deceleration force creating abnormal instantaneous motion of one of the joints, leading to tissue damage. Inflammation associated with injury may be delayed creating a slow onset of symptoms. Clinical examination may only reveal restricted movement and localised tenderness. ● Lumbar spine - soft tissue injury Mr Briggs received an MRI scan of the lumbar spine 14/8/2018. The following pertinent findings were reported - 'Left posterolateral annular tear' with 'mild disc desiccation.'"
10. There followed the second review panel's understanding of what was revealed by various studies, obtained from the internet, to which they had regard, including the following propositions: 1. "A significant percentage of asymptomatic people had … circumferential annular tears"; 2. Autopsy studies indicated that annular tears "were more clearly described as splits in the annular ring structure of the disc" and are now called circumferential fissures or de-laminations; 3. When "provocative contrast discography" is used, "pain correlates more with advanced radial tears than circumferential fissures"; 4. "The cause of lumbar disc pathology and annular defects is not well understood and there are competing theories"; 5. Radial and circumferential fissures "may or may not be painful or symptomatic"; 6. "The observation of a circumferential annular fissure in a lumbar intervertebral disc cannot be interpreted as traumatic in origin even if the patient … records pain following a trauma, based on research findings", which findings included that "[t]he researchers found no difference between the groups [those with 'insidious onset pain' and those with 'trauma induced pain'] in disc pathology or concordant pain generation." (underlining in original); 7. "The research and similar studies, tell us that disc disease can become painful, with or without a precipitating trauma" (underlining in original); 8. "the observation of annular disc pathology and circumferential fissures in particular cannot be interpreted as traumatic. This pathology or structural change is not a 'tear'. It is a degenerative defect, split or delamination in the annular ring structure of the disc and can arise without any identified trauma" (underlining in original); 9. "These research findings lead to the conclusion that most traumatic injuries to the disc cannot be diagnosed with current technology".
11. On the basis of these propositions, the second review panel concluded: "With respect to the current legislation, damage to the core matrix (cartilage) or radial tears to the annulus (ligament) cannot be differentiated from other causes. This is especially true, when an isolated post-traumatic study cannot be compared with a prior pre-injury study. There is a further treatment aspect to be considered. Even if statutory injuries to the disc could be diagnosed, it may not be the source of pain. The intervertebral disc has adjacent apophyseal joints which could equally likely be damaged."
12. As to the material supplied by the plaintiff's lawyers, the second review panel "was unpersuaded". Nonetheless, the panel said that they had "no disagreement with the proposition that disc disease may be initiated and aggravated by trauma" and that "[t]rauma along with other factors are implicated".
13. The second appeal panel, then identified the issue they were required to address as being whether "the motor vehicle accident trauma [w]as a cause of a 'left posterolateral annular tear' with 'mild disc desiccation'" (emphasis in original) and stated: " 1. At present, this cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period. 2. In addition, a delamination may not fall within the definition of a tear. 3. Lastly, the defect may not be the source of his pain and disability. The Panel do not accept that criteria for non-minor injury to the lumbar spine have been satisfied. As shown above, with reference to relevant research studies, it cannot be established the circumferential annular fissure demonstrated in the imaging study is caused by trauma. Rather it is indistinguishable from degenerative change." (underlining in original)
14. After considering certain other injuries which are not relevant to the present proceedings, the second review panel concluded its reasons as follows: "Panel Decision 9. Minor Injury The Review Panel's findings in relation to the minor injury are the same as the findings as stated in the Certificate issued by Assessor Carr dated 14 December 2018. Accordingly, the Review Panel has determined that this Certificate is to be confirmed."
15. It can be noted that this determination was not given effect to by the second review panel's certificate, which has been quoted above at [27] and which expressly confirmed the first review panel's certificate dated 7 November 2019 and not the certificate issued by Assessor Carr on 14 December 2018.
16. I now turn to consider the grounds of review relied upon by the plaintiff, noting that if the first or second, more specific grounds of review are upheld, it will not be necessary to consider the more general grounds of review.

Ground 1

1. The first ground involved the contention that the second review panel failed to conduct its assessment afresh as required by s 7.26(6) and thereby failed to perform its statutory task and fell into jurisdictional error.
2. By virtue of s 7.26(6) of the MAI Act, the second review panel's review: 1. was not limited to a review of only that aspect of the assessment under review that was alleged to be incorrect; and 2. was to be by way of a new assessment of all the matters with which the medical assessment was concerned.
3. One consequence of the terms of s 7.26(6) is that a review panel will fall into error if it limits its review to only that aspect of the assessment under review that was said to be incorrect. Another effect of s 7.26(6) is that, although styled a "review", a review panel is actually determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] (Leeming JA, Beazley P and Basten JA agreeing) noting that s 63(3A) of the Motor Accidents Compensation Act 1999 (NSW) is in the same terms as s 7.26 of the MAI Act.
4. An illustration of the correct approach to what a fresh assessment under s 7.26(6) might involve is found in Sydney Trains v Batshon [2021] NSWCA 143, where the Court of Appeal (Leeming JA, White and McCallum JJA agreeing) contrasted reviews under the motor accidents legislation with those under the workers' compensation legislation and said, at [41]: "Under the motor accidents legislation, the default position where there is review of a medical assessment is that the review 'should generally include a re-examination of the claimant', especially where a party objects to the review being conducted on the papers, unless there is no dispute, ambiguity or uncertainty as to the relevant clinical findings: see cl 4(a)(i) and (ii) of the 'Review Panel Practice Note 3/2005', reproduced in Partridge v IAG Ltd t/as NRMA Insurance [2019] NSWSC 127 at [36]. Importantly, the review 'is not limited to a review only of that aspect of the assessment that is alleged to be incorrect', but rather 'is to be by way of a new assessment of all the matters with which the medical assessment is concerned': Motor Accidents Compensation Act 1999 (NSW), s 63(3A); Motor Accident Injuries Act 2017 (NSW), s 7.26(6).
5. This approach is also consistent with cll 5.6 and 7.279 of the Guidelines which establish that an assessment of whether an injury caused by the accident is a minor injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from "a careful and thorough physical … examination" and a review is to be conducted using, among other things, "medical examinations as appropriate".
6. In this case, the medical assessment matter referred to Assessor Carr and, thus, to the second review panel was whether Mr Brigg's injuries caused by the motor accident were minor injuries for the purposes of the MAI Act. The second review panel's task was, therefore, to conduct a "new assessment" of that matter, including a re-examination of the plaintiff unless inappropriate. There was no suggestion that there had been any limitation of the scope of the review agreed between the parties for the purposes of cl 7.278 of the Guidelines.
7. From the form of the second review panel's certificate and sections 1, 4 and 8 of their reasons (relevant parts of which have been quoted above), it is clear that the second review panel proceeded on the mistaken basis that it was reviewing the assessment of the first review panel whose certificate had been quashed by Harrision AsJ and not Assessor Carr's assessment, even if its reasons in section 9 and the certificate issued by the second review panel indicated a degree of confusion on the part of the panel as to what it actually decided. This was an error.
8. This error led to a further error by the second review panel. An examination of Mr Briggs was not undertaken by the panel because: "● A re-examination of the claimant was not necessary in order to reach a decision, because the Supreme Court NSW judgement 29 September 2020 indicated only an issue of procedural fairness relating to the interpretation and availability of science pertinent to settlement of the claim. ● Accordingly, the Panel proceeded to re-examine the facts of the case and research the scientific literature for any further knowledge which might assist at reaching a valid decision."
9. The remainder of the reasons also appeared to be based on this mistaken approach.
10. The focus of the panel's deliberations was almost entirely confined to consideration of studies and research papers it had discovered by conducting an internet search "seeking to obtain all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain". It was expressly noted by the second review panel that "[r]elevant references the Panel would rely upon in their deliberations were distributed to the parties", presumably to correct the error of the first appeal panel which had been found by Harrison AsJ.
11. Apart from the reference to the results of the MRI examination of Mr Briggs, very little if any of the second review panel's reasoning related to any of the other information before it. As the panel itself observed, it proceeded "to re-examine the facts of the case and research the scientific literature for any further knowledge which might assist at reaching a valid decision".
12. Reading the second review panel's reasons as a whole, fairly and not overly critically, in my view they show that the panel was limiting its review to that aspect of the quashed assessment by the first review panel that was found to involve error, namely reliance on studies of which the plaintiff was not made aware, rather than undertaking its own fresh and comprehensive assessment of the plaintiff's medical assessment matter.
13. Consequently, the second review panel's approach was contrary to the requirements of s 7.26(6), especially when viewed in light of cll 5.6 and 7.279 of the Guidelines. The panel's failure to re-examine the plaintiff for the purposes of the review or to address other material before the second review panel in the "Panel Deliberations" section or elsewhere in their reasons demonstrated that they proceeded on an erroneous understanding of their task.
14. On these bases, I am of the view that the second review panel failed to conduct their assessment of the correct matter, and failed to conduct their assessment afresh as required by s 7.26(6) and thereby failed to perform their statutory task. As a result, the panel fell into jurisdictional error and the error was also an error of law on the face of the record. Therefore, the first ground of review has been made out.

Ground 2

1. The second ground of review concerned the second review panel's approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
2. As to whether the motor vehicle accident trauma was a cause of a "left posterolateral annular tear" with "mild disc desiccation" shown on Mr Brigg's MRI test results, the second review panel concluded that causation had not been established because: 1. "[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period", and Mr Briggs only had post-accident MRI results; 2. "a delamination may not fall within the definition of a tear"; and 3. "the defect may not be the source of his pain and disability".
3. The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg's pain and disability, causation had not been established.
4. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing): "138 Whether the Hospital's negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce's worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]: 'An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.'"
5. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242: "… it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try."
6. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
7. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel's reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
8. The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg's relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg's L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that: "the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma."
9. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg's condition. This required, not a consideration of material derived as a result of an internet search for "all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain", but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from: 1. a comprehensive, accurate history, including pre-accident history and pre-existing conditions; 2. a review of all relevant records available at the assessment; 3. a comprehensive description of the injured person's current symptoms; 4. a careful and thorough physical examination; and 5. diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
10. In Mr Briggs's case that would include, without attempting to be exhaustive: 1. Mr Briggs's age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain; 2. the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and 3. Mr Briggs's circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
11. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made "a non-medical informed judgement" as to whether it was likely that the motor accident caused or contributed to Mr Briggs's injury in question.
12. On a fair reading of the second review panel's reasons, the panel failed to apply the correct test of causation in relation to Mr Briggs's injury which had the consequence that the panel also failed to obtain or consider relevant material. The panel in effect asked itself the wrong question in this regard and failed to perform the statutory task required of it. Thus, the second review panel made a jurisdictional error and the error was also an error of law on the face of the record.
13. For these reasons, ground 2 has been made out.

Grounds 3, 4 and 5

1. Since grounds 1 and 2 have been made out, it is not necessary to consider grounds 3, 4 and 5.
2. Nonetheless, it can be noted that, in substance, grounds 3 and 4 have been addressed as part of ground 2 where it was concluded that, inter alia, the second review panel failed to consider all of the material before it including: 1. what should have been taken into account by reason of cl 5.6 of the Guidelines; and 2. the "substantial and clearly articulated argument" advanced on behalf of the plaintiff in relation to causation and the material in support of that argument.
3. Ground 5 involved a contention that there had been a failure to give adequate reasons as required by s 7.23(7) of the MAI Act. Since the second review panel's certificate and reasons have disclosed the nature and extent of the panel's reasoning by which it reached its conclusions sufficiently to allow the reasons to be considered properly for the purposes of the other grounds, I do not accept that any additional or independent ground of inadequacy of reasons has been made out.

Relief

1. Since I have reached the conclusion that the second review panel's certificate of 20 February 2021 was affected by jurisdictional error and error of law on the face of the record, the certificate is liable to be set aside. In deciding whether to grant such relief by way of an order in the nature of certiorari, under s 69 of the Supreme Court Act, the Court has a discretion: Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] (Sackville AJA, Leeming JA and Adamson J agreeing) citing Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 at [95] (McHugh J); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).
2. No factors militating against granting relief were raised by the plaintiff. In the absence of an active contradictor at the hearing, I gave particular attention to whether there was any reason why the relief sought should not be granted in this case but I could discern none.
3. Accordingly, in my view the third defendant's decision as set out in the certificate of 20 February 2021 should be set aside. In this situation, it will be necessary for the second defendant to refer the plaintiff's medical assessment to a review panel to consider the matter afresh in accordance with s 7.26(6) and other relevant provisions and principles of law. Consequently, it will be appropriate also to order that the plaintiff's matter be remitted to the second defendant to be referred to a review panel to be dealt with according to law.
4. In all the circumstances, it would also be preferrable for the review panel to which the plaintiff's matter is to be referred for review, after remittal, should be constituted differently from both the first and second review panels.

Costs

1. In light of the submitting appearances filed by all defendants in these proceedings, the plaintiff's position at the hearing was that he did not seek any order as to costs.

Orders

1. For the reasons set out above, the orders of the Court are: 1. The certificate of the third defendants dated 20 February 2021 is set aside. 2. The plaintiff's review of the medical assessment of Assessor Carr which is the subject of the certificate dated 14 December 2018 is remitted to the second defendant to be referred, under s 7.26 of the Motor Accident Injuries Act 2017 (NSW), to a review panel to be dealt with according to law. 3. There is no order as to costs, to the intent that the parties are to pay their own 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: 31 March 2022