Briggs v IAG Limited t/as NRMA Insurance

Supreme Court of NSW|2020-08-18

Judgment

HER HONOUR: This is a judicial review of a review panel of the State Insurance Regulatory Authority ("SIRA").
By summons filed 5 February 2020, the plaintiff seeks firstly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the review panel constituted by SIRA ("the Review Panel") dated 7 November 2019, made purportedly pursuant to ss 7.23 and 7.26 of the Motor Accident Injuries Act 2017 (NSW) ("the MAI Act"); secondly, an order in the nature of mandamus remitting the matters the subject of that decision to SIRA for re-allocation to a differently constituted review panel for determination according to law; and thirdly, if necessary, an interim order or stay in the nature of prohibition, or an interlocutory injunction, preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on that decision until the final determination of these proceedings.

Background

On 22 May 2018, the plaintiff was injured in a motor vehicle accident ("the accident"). It is the plaintiff's case that as a result of the accident, he sustained injuries to the cervical and lumbar spine, including an annular tear of the L4/5 disc.
The insurer is the compulsory third party insurer of the vehicle at fault in the accident.
Liability is not in dispute. However, in the process of determining the plaintiff's level of injury, a dispute arose between the plaintiff and the insurer as to whether his injury was a "minor injury" in accordance with s 1.6 of the MAI Act. Whether the plaintiff's injury is minor has significant bearing on his entitlement to damages.
Section 1.6 defines "minor injury" as follows: "(1) For the purposes of this Act, a minor injury is any one or more of the following - (a) a soft tissue injury, (b) a minor psychological or psychiatric 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."
Pursuant to s 1.6(2), an injury that includes "complete or partial rupture of tendons, ligaments, menisci or cartilage" is not a minor injury under the Act.
Clause 4 of the Motor Accident Injuries Regulation 2017 (NSW) further defines "minor injury" as follows: "4 Meaning of 'minor injury' (section 1.6 (4) of the Act) (1) 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. …"
Under ss 7.1 and 7.17 of the MAI Act, the issue of whether the plaintiff's injury was minor is considered a "medical assessment matter". As such, the plaintiff's medical dispute was referred for assessment by a medical assessor on behalf of SIRA.
On 14 December 2018, Medical Assessor Carr ("the Medical Assessor") assessed the plaintiff and issued a medical assessment certificate ("MAC") certifying that the plaintiff's injury was a minor injury for the purposes of the MAI Act.
The plaintiff applied for a review of the Medical Assessor's decision pursuant to s 7.26 of the MAI Act. Section 7.26 relevantly reads: "7.26 Review of medical assessment by review panel (1) A claimant or an insurer may apply to the proper officer of the Authority to refer a medical assessment under this Division by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect. … (6) 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."
In other words, a review panel is to conduct its assessment afresh: see Frost v Kourouche (2016) NSWLR 214 at [9].
The plaintiff's ground of review before the Review Panel which remains relevant in these proceedings is that the Medical Assessor mischaracterised the plaintiff's lumbar spine disc injury as a "bulge" rather than an annular tear.
The Review Panel proceeded to determine the matter without re-examining the plaintiff. On 7 November 2019, it issued a certificate and reasons pursuant to ss 7.23 and 7.26 of the MAI Act, again certifying that the plaintiff's injury was a minor injury. Unlike the Medical Assessor, the Review Panel determined that the plaintiff did have an annular tear at L4/5 region, but that it was not causally related to the accident. It is the decision of the Review Panel which is subject to judicial review in this Court.

Further relevant legislation and guidelines

In addition to the provisions of the MAI Act set out earlier, the following provisions and guidelines are relevant to these proceedings.
Section 7.1 defines "medical assessment matter" as follows: "medical assessment matter means a matter declared by Schedule 2 to be a medical assessment matter for the purposes of this Part."
Clause 2 of Sch 2 of the MAI Act concerns medical assessment matters. It relevantly reads: "2 Medical assessment matters The following matters are declared to be medical assessment matters for the purposes of Part 7 - (a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage), …"
Section 7.17 of the MAI Act defines "medical dispute" as follows: "medical dispute means- (a) a dispute between a claimant and an insurer about a medical assessment matter, or (b) an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by a claims assessor."
Section 7.23 concerns the status of medical assessments, including the power of a court to reject a MAC and the obligation of the medical assessor (or review panel) to give reasons. It relevantly reads: "7.23 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) The certificate is, in any court proceedings or in any proceedings in connection with a merit review under Division 7.4 or a claims assessment under Division 7.6 - (a) prima facie evidence of any matter certified as to the degree of impairment of earning capacity of the injured person as a result of the injury concerned, and (b) conclusive evidence of any other matter certified. (3) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (4) If a certificate as to any matter is rejected under subsection (3), the court is to refer that matter again for assessment under this Division and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (5) A court may not substitute its own determination as to any medical assessment matter. … (7) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence."
Under s 10.2 of the MAI Act, the Authority may issue Motor Accident Guidelines in respect of any matter authorised or required under the Act. Version 4 of the Motor Accident Guidelines, effective from 17 April 2020, is relevant to these proceedings.
Clauses 6.120-121 of the Motor Accident Guidelines state: "6.120 The assessment should include a comprehensive accurate history, a review of all relevant records available at the assessment, a comprehensive description of the individual's current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The medical assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports. 6.121 While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. Several reports indicate that approximately 30% of people who have never had back pain will have an imaging study that can be interpreted as positive for a herniated disc, and 50% or more will have bulging discs. Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category."
Clause 7.295 of the Motor Accident Guidelines, with reference to s 7.23(7) of the MAI Act, also sets out the Medical Assessor's obligation to set out reasons as follows: "7.295 The medical assessor's certificate is to set out the reasons for any finding as to any matter certified in respect of which the certificate is conclusive evidence, under section 7.23(7) of the Act."

The Review Panel's decision

On 7 November 2019, the Review Panel issued its certificate and reasons in relation to the plaintiff's review. In its review, the Review Panel considered afresh all aspects of the assessment (CB, p 51).
Under the heading "Disputes Identified by the Parties", the Review Panel stated: "The assessor has erred in his assessment of the claimant's lumbar spine injury. The applicant notes the assessor recorded radiological findings which referred to annular tear at L4/5. The applicant submits the spinal disc is a fibrocartilaginous joint and that a complete or partial rupture of the disc does not meet the definition of a soft tissue injury under the Act. The applicant submits the assessor has failed to have regard to the full diagnosis of the injury to the disc in his assessment of the lumbar spine injury."
The Review Panel noted that it received a CD of an MRI scan of the plaintiff's lumbar spine dated 14 August 2018, which was not available to the Medical Assessor. The scan was viewed by each member of the Review Panel.
Under the heading "C. Panel Deliberations", the Review Panel relevantly stated: "The Panel considered the nature of the accident and noted that the accident occurred at Turramurra at the Bobbin Head Road junction with the Pacific Highway. A truck/ute towing a trailer had made a right hand turn into Bobbin Head Road and a car followed the ute. Mr Briggs was driving and had proceeded on a green light through the intersection and there was a T-bone collision with the front of his car and the oncoming car turning right. … The Panel noted that the Police Report stated… Incident details: OCCURRENCE ONLY … Mr Briggs attended his usual medical practice on the day of the accident 22 May 2018 and in the clinical records from the Pymble Medical and Dental Centre, it was noted…. Sore upper and lower back…. No CLTS tenderness but complains of midline back pain. No chest wall/abdominal/pelvic tenderness, pain referred to midline back. … The Panel also noted that on the day of the accident, there was no tenderness over the cervical spine, thoracic or lumbar spine. He did complain of midline back pain but that was not the reason he was referred to the Emergency Department. … The Panel considered the Discharge Referral from Hornsby Hospital dated 22 May 2018 stated - He presented to this facility with motor vehicle accident. Summary of care - Sent in by GP with headache, nausea and back pain. … C spine - C4 tenderness. Full range of movement of neck, some lateral neck tenderness on turning head to right. Nil thoracic or lumbar tenderness. Springing of pelvis causes lower back pain. … Complained of some ongoing back pain, likely muscular from impact of accident. … The Panel noted the Motor Accident Medical Certificate dated 28 May 2018 from Dr Peter Ward stating the injuries as: Neck pain, headaches. Low back pain with right referral. Tender right buttock. The Panel noted that he was referred to the Whiplash Centre and also to a chiropractor. The panel noted the clinical medical record of Dr Ward on 21 September 2018 - This is to advise that as a result of continuing back pain with right-sided referral in a sciatica fashion, together with the suggestion of weakness in right knee flexion, he was referred for MRI of the lumbar spine to exclude radiculopathy. The study revealed a mildly desiccated disc with a broad-based L4/5 disc bulge and a left foraminal tear." (the Review Panel's emphasis)
Under the subheading "Lumbar spine injury - L4/5 disc bulge - annular tear", the Review Panel stated: "In relation to the lumbar spine, this includes the L4/5 disc bulge and annular tear. The Panel noted and confirmed the findings of the MRI scan of the lumbar spine dated 14 August 2018: Clinical notes MVA 22/05/2018.… At L4/5 there is a desiccated disc with minimal broad-based posterior disc bulge and left forminal annular tear of the disc…. Comment: Minor disc desiccation with minimal disc bulge at L4/5 associated with a left posterolateral annular tear but no significant canal or forminal stenosis from this. Otherwise a normal study. The Panel noted 1. that the MRI scan was performed two and a half months after the accident and the clinical complaints were right sciatica and ? weakness in the flexor. The Panel noted that there was no X-ray or other imaging of the lumbar spine on the day of the accident or peri-accident period. 2. that clinical complaints were right sciatica and ? weakness in the flexor. In other words, the symptomatology was in the right leg and the annular tear was on the left side and it was because of right sided sciatica that the MRI scan was performed. 3. In relation to the finding of annular tear, and in relation to the images seen on the MRI scan of the lumbar spine dated 14th February 2019, the Panel noted the SIRA Motor Accident Permanent Impairment Guidelines, paragraph 1.121 - While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. The Panel noted in the BACK LETTER Vol. 19 No 1 January 2004 entitled Shock Over Disc Degeneration in 10 year olds- but are disc abnormalities in this age group surprising? The answer was No. Disc degeneration is found on MRI scans of asymptomatic children."
The Review Panel then referred to an article published in The Spine Journal, "Lumbar Disc Nomenclature: Version 2.0" ("the Spine Journal article"), which it reproduced in detail as follows: "The Panel also noted the Review article titled Lumbar Disc Nomenclature: Version 2.0 - Recommendations of the Combined Task Forces of the North American Spine Society, the American Society of Spine Radiology and the American Society of Neuroradiology in Spine Journal 14 (2014), pages 2525-2545. On page 2527 under the sub-heading Degeration - Degenerative changes in the discs are included in a broad category that includes the sub-categories annular fissure, degeneration and herniation. Annular fissures are separations between the annular fibres or separation of annular fibres from their attachments to the vertebral bone. Fissures are sometimes classified by their orientation. A 'concentric fissure' is a separation or delimination of annular fibres parallel to the peripheral contour of the disc (Figure 2). A 'radial fissure' is a vertically, horizontally, or obliquely orientated separation of (or rent in) annular fibres that extend from the nucleus peripherally to or through the annulus. A 'transverse fissure' is a horizontally orientated fissure limited to the peripheral annulus that may include separation of annular fibres from the apophyseal bone. Relatively wide annular fissures, with stretch of the residual annular margin, at times including avulsion of the annular fragment, have sometimes been called 'annular gaps', a term that is relatively new and not accepted as standard. The term 'fissures' describes the spectrum of these lesions and does not imply that the lesion is a consequence of injury. Use of the term 'tear' can be misunderstood because the analogy to other tears has a connotation of injury, which is inappropriate in this context. The term 'fissure' is the correct term. Use of the term 'tear' should be discouraged and, when it appears, should be recognised that is it usually meant to be synonymous with 'fissure' and not reflective of the result of injury. The original version of this document stated preference for the term 'fissure' but regarded the two terms as almost synonymous. However, in this revision, we regard the term 'tear' as non-standard usage. Degeneration may include any or all of the following: desiccation, fibrosis, narrowing of the disc space, diffuse bulging of the annulus beyond the disc space, fissuring (i.e. annular fissures), mucinous degeneration of the annulus, intradiscal gas, osteophytes of the vertebral apophyses, defects, inflammatory changes and sclerosis of the endplates. Herniation is broadly defined as a localised or focal displacement of disc material beyond the limits of the intervertebral disc space. The disc material may be nucleus, cartilage, fragmented apophyseal bone, annular tissue or any combination thereof. The disc space is defined craniad and caudad by the vertebral body endplates and, peripherally, by the outer edges of the vertebral ring apophyses, exclusive of osteophytes. The term 'localised' or 'focal' refers to the extension of the disc material less than 20% (90°) of the periphery of the disc as viewed in the axial plane. The presence of disc tissue extending beyond the edges of the ring apophyses, throughout the circumference of the disc, is called 'bulging' and is not considered a form of herniation. Asymmetric bulging of disc tissue greater than 25% of the disc circumference is often seen as an adaptation to adjacent deformity, is also not a form of herniation. In evaluating the shape of the disc for a herniation in an axial plane, the shape of the two adjacent vertebrae must be considered. Herniated discs may be classified as protrusion or extrusion, based on the shape of the displaced material. Disc herniations may be further specifically or categorised as contained or uncontained. The category of trauma includes disruption of the disc associated with physical and/or imaging evidence of violent fracture and/or dislocation and does not include repetitive injury, contribution of less than violent trauma to the degenerative process, fragmentation of the ring apophysis in conjunction with the disc herniation, or disc abnormalities in association with degenerative subluxations. Whether or not a 'less than violent' injury has contributed to or been superimposed on a degenerative change is a clinical judgment that cannot be made on the basis of images alone; therefore, from the standpoint of description of images, in the absence of significant imaging evidence of associated violent injury, should be classified as degeneration rather than trauma." (the Review Panel's emphasis)
The Review Panel then continued: "In [the plaintiff's] case the lumbar injury is not considered 'violent' or 'less than violent' because i. he was not stretchered out of his car, ii. no ambulance was called to his assistance and iii. the police record the accident as an occurrence and that he had no injuries iv. he attended his general practice on the day of the accident and was referred to the ED because of Impression - CHI [closed head injury] with worsening headache and nausea and previous head injury on history. No CLTS [cervico thoracic lumbosacral] tenderness but complaints of midline back pain. No chest wall/abdominal/pelvic tenderness, pain referred to midline back. Chest clear. No obvious injuries on limbs. ROM (range of motion) neck and back NAD (no abnormality detected). v. he was assessed at the ED and no X-rays or other imaging was taken of her [sic] back he was not hospitalised following the accident. vi. Examination findings - C spine-C4 tenderness. Full range of movement of neck, some lateral neck tenderness on turning head to right. - Nil thoracic or lumbar tenderness. - Springing of pelvis causes lower back pain. - No chest wall tenderness on palpation, no abrasions. - Nil other joint pain or injury, full ROM of all joints. vii. There was no significant injury to his back to require an x-ray or other imaging studies of his back/lumbar spine at the time of the accident. The MRI scan of the lumbar spine was performed some two and a half months later. Thus, the Panel concluded that the L4/5 disc findings and the annular fissure were not acute traumatic injuries sustained in this motor vehicle accident of 22 May 2018." (the Review Panel's emphasis)
Finally, under the subheading "Minor Injury", the Review Panel stated: "The Review Panel's findings in relation to the minor injury are different to the findings as stated in the certificate issues by [the medical assessor]. The Review Panel has determined that there was a soft tissue injury to the cervical spine and lumbar spine. The Panel noted that the left shoulder blade and right shoulder blade pain was referred pain from the neck. The Panel noted that the right leg was referred pain from the lumbar spine and that the pain in the left leg came on later. The Panel considered there was no injury to the thoracic spine. … In relation to the issues raised in the application, the Review Panel considered those and determined that the injury to the lumbar spine was a minor injury and not a non-minor injury, for the reasons given above."
Having considered the plaintiff's application, the Review Panel revoked the Medical Assessor's certificate dated 14 December 2018 and issued a new certificate determining that the plaintiff's injuries to his cervical spine and lumbar spine were minor injuries for the purposes of the MAI Act.

Judicial review generally

This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both a medical assessor and review panel, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

Grounds of judicial review

The plaintiff seeks a review of the whole of the Review Panel's decision on the grounds that it 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 of 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.
I will now turn to consider the grounds of judicial review in order.

The plaintiff's submissions

The plaintiff submitted that the Review Panel's "findings" from pp 7 to 8 of its decision, extracted earlier in this judgment, are a direct quote from the Spine Journal article. After reproducing the article, the Review Panel then stated that the plaintiff's injury was not "violent" or "less than violent", in reference to terms taken from the Spine Journal article. After listing a number of factors allegedly supporting this finding, and noting that the plaintiff's MRI scan had been taken two months after the accident, the Review Panel concluded: "Thus, the Panel concluded that the L4/5 disc findings and the annular fissure were not acute traumatic injuries sustained in this motor vehicle accident of 22 May 2018."
The plaintiff submitted that the Spine Journal article played a critical role in the Review Panel's adverse finding concerning the nature of his injury. As the Review Panel relied on the Spine Journal article without notice to the parties, the plaintiff submitted that he was denied procedural fairness.
The plaintiff referred to Pascoe v Mechita Pty Ltd [2019] NSWSC 454 ("Pascoe"). In Pascoe, the review panel, in reaching its determination, relied on a set of tables developed by the International Standards Organisation ("ISO") relating to progressive hearing loss. In his Honour's consideration of the judicial review in this Court, Button J stated at [70] and [79]: [70] In my opinion, the plaintiff is correct: it was a denial of procedural fairness for the Panel to take into account the ISO adversely to the plaintiff without giving him notice that it proposed to do so.. … [79] In summary then: by taking into account the ISO adversely to the plaintiff without providing him with notice that it would do so, the Panel denied him procedural fairness; the ISO cannot be characterised as common sense or common knowledge, but rather is something quite specific and detailed; the important adverse consequence to the plaintiff of the determination by the Panel about the level of hearing loss and therefore WPI itself argue for the provision of procedural fairness of a level that encompasses notice with regard to the ISO; and it cannot be said that the plaintiff waived his right to be provided with such notice."
The plaintiff also referred to the well-known passage in Kioa v West (1985) 159 CLR 550; (1985) 62 ALR 321 ("Kioa"), where the High Court held at [40] that decision makers "need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it." This includes providing a claimant with an opportunity to confront evidence contrary to his or her claim.
In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 273 ALR 223 ("SZGUR"), French CJ and Kiefel J stated at [9]: "…Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.." (footnote omitted)
In Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248 ("Kotzman"), Cavanough J stated at [36]-[37]: "[36] In Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576, a Full Court, comprising Northrop, Myles and French JJ, said: Where the exercise of a statutory power attracts the requirement for procedural fairness, the person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [37] More recently, in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, the High Court referred with apparent approval to the passage from the Alphaone decision set out above. The High Court continued [at [32]]: In Alphaone the Full Court rightly said: It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature."
Finally, the plaintiff referred to Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82; (2000) 176 ALR 219 ("Aala"), in which the High Court stated that there is no such thing as a trivial denial of procedural fairness. The High Court concluded at [17]: "We conclude that: (i) the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction in respect of which prohibition will go under s 75(v); (ii) if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by classifying the breach as 'trivial' or non-determinative of the ultimate result - the issue is whether there has or has not been a breach of the obligation; (iii) the practical content of the obligation, and thus the issue of breach, may turn upon the circumstances of the particular case; and (iv) the remedy of prohibition under s 75(v) does not lie as of right, but is discretionary."
The plaintiff submitted that these authorities demonstrate that relying on material without notice to the plaintiff, and to his detriment, amounted to a failure to afford him procedural fairness. As such, the decision of the Review Panel should be set aside.

The insurer's submissions

The insurer refuted that the Review Panel denied the plaintiff procedural fairness by relying on the Spine Journal article without prior notice.
The insurer submitted that in forming his or her opinion, a medical assessor is expected to apply knowledge gleaned from peer-reviewed medical literature, as well as his or her own clinical and professional experience. On the plaintiff's view, it would be a denial of procedural fairness for a medical assessor to refer to medical literature in providing his or her reasons, without first providing the unsuccessful party with notice as to the literature to be referred to, and providing both parties with an opportunity to debate its use. The insurer submitted that this obligation would be far too broad.
The insurer further sought to differentiate these proceedings from Pascoe, in which the review panel assessed the plaintiff's hearing loss using an ISO model developed to calculate a worker's hearing loss, involving the "input" of nuanced assumptions and a process of calculation of which the parties had no prior knowledge. In Pascoe, no notice was given of the actual process of calculation of hearing loss, which was fundamental to the assessment. The insurer submitted that Pascoe is very different from this case.
According to the insurer, the Spine Journal article was not a critical factor in the Review Panel's finding on causation. When read in context, it is clear that the Review Panel referred to the Spine Journal article for the primary purpose of clarifying the meaning of a number of relevant medical terms.
Importantly, the insurer contends that the Review Panel's determination that the plaintiff's left posterolateral annular tear at L4/5 (revealed by an MRI scan) was not caused by the accident was not dictated by the Spine Journal article. Rather, it was a conclusion drawn from the circumstances of the injury, the medical treatment history and the Review Panel's analysis of the radiological findings, each of which involved the exercise of its own clinical judgment.
The insurer submitted that the Review Panel made the following findings relevant to causation: 1. that on the basis that the plaintiff was able to self-extricate from his vehicle, did not require an ambulance to be called, and had no tenderness in his lower back on the day of the accident, any low back injury he suffered was not a "violent" injury; 2. that there was no restriction of range of motion of the plaintiff's back, or any other abnormality in that area, noted on the day of the accident; 3. that despite being assessed at his usual medical centre and in the Emergency Department of Hornsby Hospital, clinicians did not consider it necessary to order x-rays or other radiology of the plaintiff's back; 4. that an MRI scan was not ordered until 2.5 months later; 5. that the Review Panel considered the radiological findings at L4/5 to be degenerative, rather than traumatic in origin; 6. that the annular tear at L4/5 was left-sided, whereas the plaintiffs' sciatica and leg pain are right-sided; 7. that because the plaintiff suffered at most a "less than violent" injury, the exercise of clinical judgment was required to determine whether it was a "minor injury"; and 8. that in the exercise of its clinical judgment, the Review Panel determined that the injury to the plaintiff's lumbar spine was a "minor injury".
The insurer submitted that the Review Panel's reasons concerning causation are clear. As such, there is no error of law and the plaintiff has not been denied procedural fairness.

Resolution

As the Review Panel's use of the Spine Journal article is critical to all three grounds of review, it is necessary to address its contents in some detail.
It is the insurer's case that the Spine Journal article is merely a text clarifying medical terminology, and not a critical factor in the Review Panel's finding on causation. Counsel for the insurer pointed to the abstract of the Spine Journal article, where the authors stated that the intention behind its publication was to revise a 2001 version "to promote greater clarity and consistency of usage of spinal terminology." The abstract went on to state: "…The revised document is presented here, and it represents the consensus recommendations of contemporary combined task forces of the [American Society of Spine Radiology], [American Society of Neuroradiology], and [North American Spine Society]. This article reflects changes consistent with current concepts in radiologic and clinical care."
The abstract then outlined the purpose, study design and results of the article as follows: "PURPOSE: To provide a resource that promotes a clear understanding of lumbar disc terminology amongst clinicians, radiologists, and researchers. All the concerned need standard terms for the normal and pathologic conditions of lumbar discs that can be used accurately and consistently and thus best serve patients with disc disorders. STUDY DESIGN: This article comprises a review of the literature. … RESULTS: The article provides a discussion of the recommended diagnostic categories pertaining to the lumbar disc: normal; congenital/developmental variation; degeneration; trauma; infection/inflammation; neoplasin; and/or morphologic variant of uncertain significance. The article provides a glossary of terms pertaining to the lumbar disc, a detailed discussion of these terms, and their recommended usage. Terms are described as preferred, nonpreferred, nonstandard, and colloquial. Updated illustrations pictorially portray certain key terms. Literature references that provided the basis for the task force recommendations are included." (my emphasis)
In the introduction to the review article on p 2526, the authors state that physicians need standard terms for normal and pathological conditions of lumbar discs. They continue from pp 2526-2527 to state: "Terms that can be interpreted accurately, consistently, and with reasonable precision are particularly important for communicating impressions gained from imaging for clinical diagnostic and therapeutic decision-making. Although clear understanding of the disc terminology between radiologists and clinicians is the focus of this work, such understanding can be critical, also to patients, families, employers, insurers, jurists, social planners, and researchers. … The general principles that guided the original document remain unchanged in this revision. The definitions are based on the anatomy and pathology, primarily as visualised on imaging studies. Recognising that some criteria, under some circumstances, may be unknowable to the observer, the definitions of the terms are not dependent on [and do not] imply the value of specific tests. The definitions of diagnoses are not intended to imply external etiologic events such as trauma, they do not imply relationship to symptoms, and they do not define or imply the need for specific treatment. … The result provides a simple classification of diagnostic terms, which can be expanded, without contradiction, into more precise subclassifications… For a practical purpose, some existing English terms are given meanings different from those found in some contemporary dictionaries. The task forces provide a list and classification of the recommended terms, but, recognising the nature of language practices, discuss and include in the Glossary, commonly used and misused nonrecommended terms and nonstandard definitions. …While it is not always possible to discuss fully the definition of anatomical and pathological terms without some reference to symptoms and etilogy, the definitions themselves stand the test of independence from etiology, symptoms, or treatment." (my emphasis)
The Spine Journal article then continues from pp 2527-2531 in the terms reproduced by the Review Panel, as extracted earlier in this judgment. I note that in its written reasons, the Review Panel did not reproduce the abstract, purpose, study design and results of the Spine Journal article.
I accept that the Spine Journal article, read independently as medical literature, presents as a text written for the purpose of clarifying spinal terminology. However, its function within the Review Panel's reasons is not as clear. Over two pages of its reasons, the Review Panel reproduced the body of the Spine Journal article verbatim, without indentation or quotation, and then added its own conclusion with reference to the article's terms of "violent" and "less than violent" injury. Although the Review Panel prefaced the extract by stating that it "also noted [the Spine Journal article]", it is not clear to a reader that what follows is a direct quote from the article, unless the two texts are held up and compared.
I will address sufficiency of reasons in more detail later in this judgment, as it has been separately articulated as a ground of judicial review in relation to causation. For present purposes, it is sufficient to say that the Review Panel had an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 ("Wingfoot") at [55]. It is not enough for counsel for the insurer to point to the abstract to the Spine Journal article, which states that the text is intended to provide a glossary of medical terms, and impute its contents to the reader of the Review Panel's reasons.
More to the point, even if the Review Panel had more clearly attributed the reproduced portions of the article, in my view its use was a denial of procedural fairness to the plaintiff. The Review Panel was entitled to refer to medical literature which was straightforward or contained common knowledge. It may be that the Spine Journal article can be described in these terms in isolation. However, the Review Panel seems to have made much of the final paragraph of the Spine Journal article, which it reproduced as follows: "The category of trauma includes disruption of the disc associated with physical and/or imaging evidence of violent fracture and/or dislocation and does not include repetitive injury, contribution of less than violent trauma to the degenerative process, fragmentation of the ring apophysis in conjunction with the disc herniation, or disc abnormalities in association with degenerative subluxations. Whether or not a 'less than violent' injury has contributed to or been superimposed on a degenerative change is a clinical judgment that cannot be made on the basis of images alone; therefore, from the standpoint of description of images, in the absence of significant imaging evidence of associated violent injury, should be classified as degeneration rather than trauma."
The Review Panel's resultant conclusion that the plaintiff did not suffer a "violent" or "less than violent" injury was a finding informed by the terms of a source previously unknown to the parties. The terms "violent" and "less than violent", pulled from the article, introduce defined standards of severity which do not appear in the statue or relevant guidelines. Had the parties been advised that the Review Panel intended to rely on the Spine Journal article, they may have consulted their medico-legal experts to make submissions in relation to the concepts it introduced.
As in Pascoe, it is my view that the Review Panel in these proceedings used the 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.

Ground 2 - Failure to apply correct principles of causation

The plaintiff's submissions

The plaintiff submitted that in determining causation of the annular tear, the Review Panel relied on two factors: the Spine Journal article and the lack of contemporaneous evidence of the injury.
The plaintiff submitted that the review panel made much of the absence of an immediate complaint of lower back pain. It noted that the plaintiff was not referred for imaging studies of his lower back at the time of the accident. The Review Panel then concluded: "The MRI scan of the lumbar spine was performed some two and a half months later. Thus, the Panel concluded that the L4/5 disc findings and the annular fissure were not acute traumatic injuries sustained in this motor vehicle accident of 22 May 2018."
The plaintiff submitted that by reasoning in this manner, the Review Panel has fallen into the type of error identified in Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 ("Bugat"); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 ("McGiffen"). The error is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation.
In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]: "[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered 'pain in her neck going out to both shoulders'. [32] While I accept that, as an administrative decision-maker, the panel's reasons should not be subjected to 'minute and detailed textual criticism in the hope of finding something on which to base an argument' [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record."
In McGiffen, the Court of Appeal held at [64] - [65]: [64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the 'gait derangement', itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident. [65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(l)(d). For that reason, the decision recorded in the panel's certificate must be treated as a purported and not real exercise of its statutory function under s 58(l)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error."
The plaintiff submitted that the Review Panel was further distracted from its statutory task by applying a test for causation that it drew from the Spine Journal article, rather than from the relevant guidelines informed by the common law. As such, the Review Panel failed to apply the required test in order to discharge its jurisdictional function. This was jurisdictional error.

The insurer's submissions

The insurer identified the plaintiff's complaint on this ground as being that the Review Panel treated the lack of contemporaneous evidence of significant injury as determinative on the question of causation, rather than as one factor relevant to causation. The insurer noted that the plaintiff does not appear to dispute that there was, in fact, a lack of contemporaneous evidence of significant spinal injury.
The insurer says that the Review Panel did not treat the absence of contemporaneous evidence alone as determinative of the question of causation. The Review Panel interpreted the radiological findings for itself, and considered that the changes at L4/5 were degenerative rather that traumatic in origin. This involved the exercise of the Review Panel's collective clinical judgment.
The Review Panel also took into account that the annular tear at L4/5 is left-sided, whereas Mr Briggs' sciatica and leg pain are right-sided. Again, in the Review Panel's judgment, this is consistent with the plaintiff's symptoms being of degenerative origin, rather than caused by traumatic disc injury.
So in determining the question of causation of the plaintiff's annular tear, the Review Panel went beyond the lack of contemporaneous evidence of significant spinal injury. It considered that factor alongside its clinical interpretation of the radiological findings, and the pattern of the plaintiff's symptoms. The Review Panel did not fall into the same error as was identified in Bugat or McGiffen. As such, the insurer submitted that there is no error in the Review Panel's approach to the question of causation.

Resolution

I have set out the Review Panel's reasons in relation to causation earlier in this judgment. In addition to setting out the accident history, the Review Panel noted the clinical record of Dr Ward, who had referred the plaintiff for a MRI scan after he complained of right-sided back pain, sciatica and weakness in the right knee. The MRI scan, taken two and a half months after the accident, revealed a left-sided annular tear.
After setting out the extract from the Spine Journal article, the Review Panel then listed seven factors (i)-(vii) which it considered significant to its conclusion that the plaintiff had not suffered a "violent" or "less than violent" injury to the lumbar spine. The Review Panel then concluded: "Thus, the Panel concluded that the L4/5 disc findings and the annular fissure were not acute traumatic injuries sustained in this motor vehicle accident of 22 May 2018."
I have already set out my reasons for finding the Review Panel's use of the Spine Journal article to have been in error. Be that as it may, I do not accept that the effect of these reasons is that the Review Panel has treated the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Rather, the Review Panel noted an extensive body of collective factors, including that the plaintiff's contemporaneous complaints concerned his right knee and back, whereas the eventual MRI revealed a left-sided annular tear. In my view, it was open to the Review Panel in the exercise of its clinical judgment to determine that although later MRIs showed an annular fissure in the L4/5 disc, it was not, on the evidence, an acute traumatic injury caused by the subject accident, but more likely degenerative. This ground of review fails.

The plaintiff's submissions

The plaintiff referred to Wingfoot at [55], which set out the obligation of a medical assessor to provide reasons as follows: "[55] The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
This case has been consistently applied in NSW in relation to medical assessors under the Motor Accidents Compensation Act 1999 (NSW), the predecessor to the current legislation, and applies to the MAI Act.
The plaintiff submitted that in relation to its findings, the Review Panel set out a summary of the evidence before it, including the Spine Journal article, and then concluded: "There was no significant injury to his back to require an x-ray or other imaging studies of his back/lumbar spine at the time of the accident The MRI scan of the lumbar spine was performed some two and a half months later. Thus, the Panel concluded that the L4/5 disc findings and the annular fissure were not acute traumatic injuries sustained in this motor vehicle accident of 22 May 2018."
The plaintiff submitted that there is an unexplained leap in the Review Panel's reasoning process in respect of causation. It simply leapt from setting out a summary of the evidence to a conclusion that the annular tear was not causally related to the subject motor vehicle accident.
The plaintiff further submitted that the Review Panel had a heightened obligation to consider the issue of causation because it was the subject of extensive submissions before it. The plaintiff had relied specifically on reports from Dr Ward and Dr Brooker, who opined that the annular tear was causally related to the subject accident.
The plaintiff referred to Campbelltown City Council v Vegan (2006) 67 NSWLR 372; (2006) 235 ALR 342 ("Vegan"), where Basten JA stated at [121]: "[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel."
The plaintiff submitted that the Review Panel was obliged to explain why it preferred the conclusion that the annular tears were not causally related to the accident, over the conclusion that they were causally related to the accident, in circumstances where the medical evidence before it supported the latter conclusion. In failing to address and engage with the plaintiff's expert medical case, the Review Panel failed to address and engage with a substantial and clearly articulated case put by the plaintiff, which is constructive failure to exercise jurisdiction and a denial of procedural fairness.

The insurer's submissions

The insurer submitted that the plaintiff's summary of the Review Panel's reasons as to causation does not do justice to the Review Panel's analysis. The relevant reasons occupy three pages of consideration.
Having set out the relevant portions of the police report, general practitioner's notes, hospital clinical records and medical certificates, the Review Panel summarised the results of an MRI scan of the lumbar spine on 14 August 2018 and provided its comments as to the significance of the radiological changes, including a comparison with the pattern of the plaintiff's reported symptoms.
The Review Panel then referred in detail to the nature of degenerative changes that may affect the discs in the lumbar spine, and explained the medical terminology by reference to the Spine Journal article. The Review Panel then explained its conclusion conclusion that the annular tear at L4/5 is not of traumatic origin.
The insurer noted that the Review Panel's reasons on causation are not to be read selectively; the whole of the reasons should be taken into account, not just its conclusion.

Resolution

As foreshadowed in relation to ground 1, the standard to which the Review Panel was required to set out its written reasons is not the standard required of a Court. Rather, the Review Panel was required to set out its actual path of reasoning in sufficient detail to enable to a reader to determine whether it fell into error. The Review Panel was not required to engage with every medico-legal opinion to which the plaintiff referred, nor to explain why it did not arrive at an opinion it did not form, even if that opinion was shown by material before it to have been formed by someone else: see Wingfoot at [56].
I have set out a summary of the Review Panel's reasons in relation to causation under the second ground. It is my view that when read as a whole and fairly, the Review Panel's reasons meet the required standard. They indicate the Review Panel's opinion that the circumstances of the accident were not consistent with significant spinal injury; that there was a lack of contemporaneous evidence of significant spinal injury; that the nature and pattern of medical treatment following the accident is not consistent with significant spinal injury; that the radiological findings do not fit the pattern of the symptoms of which the plaintiff complains; and that disc degeneration unrelated to trauma is another explanation for the radiological changes. Having set out these factors, the Review Panel stated that in the exercise of its clinical judgment, it was not satisfied that the motor accident caused the plaintiff's annular tear at L4/5. I do not agree that there is an "unexplained leap" in this path of reasoning, as submitted by the plaintiff. This ground of review fails.

Result

The result is that the Review Panel, in drawing an adverse conclusion about the plaintiff's claim from concepts introduced by the Spine Journal article, without notice, denied him procedural fairness. The Review Panel has constructively failed to exercise jurisdiction and made errors of law as it relates to findings on whole person impairment arising from the accident. It is not clear that had the parties been afforded the opportunity to put on submissions in relation to the Spine Journal article, the Review Panel would not have reached a different conclusion. As such, in the exercise of my discretion, it is my view that the decision should be quashed and the proceedings remitted to SIRA to be determined in according to law.

Costs

Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs on an ordinary basis.

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: 1. In the nature of certiorari removing into the Court the decision of the Review Panel and quashing that decision.

The Court further orders that: 1. 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. 2. The first defendant is to pay the plaintiff's costs on an ordinary basis. **********

Amendments 24 February 2021 - "Motor Accidents Injuries Act 2017 (NSW)" amended to "Motor Accident Injuries Act 2017 (NSW)" 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: 24 February 2021

"Motor Accidents Injuries Act 2017(NSW)

"Motor Accident Injuries Act 2017(NSW)

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