HEADNOTE
[This headnote is not to be read as part of the judgment]
On 17 April 2017 the plaintiff, Carolyn Jean Bucca, was injured after a motorised buggy collided with her at the Royal Easter Show. QBE Insurance (Australia) Ltd, the insurer, admitted liability. There was a dispute as to the plaintiff's degree of permanent impairment, and whether it exceeded the 10% threshold required for damages for non-economic loss. On 7 September 2020, the plaintiff made an application for assessment of her physical injuries and sleep disorder. The plaintiff underwent two separate assessments, and on 9 December 2021 a combined medical certificate was issued that assessed her impairment as above the 10% threshold.
The insurer lodged a review application of the two assessments, and a medical review panel (the Panel) was constituted by the President of the Personal Injury Commission to conduct the review. The Panel re-examined the plaintiff on 17 August and 4 November of 2022 for her physical injuries and sleep disorder respectively. After a delay of over a year, the Panel issued two certificates on 9 and 12 January of 2024 that assessed her whole person impairment below the 10% threshold.
The plaintiff filed an application for judicial review, with the issues for determination being:
(i) the temporal limits governing the review;
(ii) the obligation to determine impairment at the time of the assessment;
(iii) the legal consequence of the delay in issuing the certificates;
(iv) the Panel's interpretation of the guidelines relating to the sleep disorder; and
(v) costs.
Held, dismissing the proceedings with costs:
As to issue (i) (governing procedures)
1 Although the plaintiff's application was a "pending" and "unheard" proceeding at the establishment day for the operation of the Commission, on the issue of the initial medical assessment certificates it became a "completed pre-establishment proceeding" under cl 14B of Sch 1 to the Personal Injury Commission Act 2020 (NSW) (PIC Act): [16]-[18]. Accordingly, the Personal Injury Commission Rules 2021 (NSW) applied and the Medical Assessment Guidelines were not engaged: [25]. The ground of review alleging failure to comply with temporal limitations in the Guidelines is rejected: [26].
2 If the Medical Assessment Guidelines were engaged, they were neither statutory requirements, nor delegated legislation. Failure to comply with their temporal requirements did not constitute an error of law on the face of the record, nor a constructive failure to exercise jurisdiction: [40]-[51].
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 Ali v AAI Ltd [2016] NSWCA 110; 75 MVR 502 considered; GIO v Smith [2011] NSWSC 802 disapproved.
As to issue (ii) (time of determining impairment)
3 Although cl 1.21 of the Permanent Impairment Guidelines required the Panel's "evaluation" to consider the impairment as it was at the time of the assessment, the purpose of the rule was not to separate the stages of the assessment process, but to remind the Panel that, although reviewing past medical records, its focus was on the current level of impairment, and also it was not to anticipate future changes: [37], [39].
As to issue (iii) (effect of delay)
4 Although the delay in completing the reviews was excessive and unexplained, there was no real and substantial risk that the Panel's ability to make a proper assessment of the plaintiff's degree of permanent impairment caused by the physical injuries was affected: [64]. It was apparent that the report of the re-examination of the plaintiff was prepared at the time of the examination. The assessment of medical histories, the parties' submissions and the contemporaneous notes from the re-examinations all could have been undertaken belatedly without any risk to the soundness of the determination: [62]-[63].
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 applied. AAI Limited trading as GIO v Amos [2024] NSWCA 65; Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 considered.
5 Clause of 1.21 of the Permanent Impairment Guidelines, read in context, does not impose any temporal requirements upon the evaluation undertaken by a panel: [37]. As such, the Panel correctly directed its assessment to the plaintiff's current degree of impairment: [39].
As to issue (iv) (sleep disorder)
6 The assessment of impairment due to a sleep disorder, like the pain causing it, was not assessed separately from the physical injury: [71]. It was not affected by any delay in completing the assessment: [55].
7 The proper construction of the Permanent Impairment Guidelines, with the American Medical Association, Guides to Evaluation of Permanent Impairment (4th ed, 1993) is not a matter for the Court. The construction and application of guidelines prepared with medical input, is for the medical assessors: [74]-[78].
Loper Bright Enterprises v Raimondo 603 US _ (2024) (28 June 2024); Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 referred to.
As to issue (v) (costs)
8 It is open for the insurer to make an application for costs of proceedings caused by the delay to be paid by a body responsible for the delay, possibly the Commission or the State, within 14 days of this judgment: [80].
9 The plaintiff's application for a certificate under the Suitors' Fund Act 1951 rejected because she was not the respondent to a successful appeal: [84].
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; Allianz Australia Insurance Ltd v Habib (No 2) [2015] NSWSC 1870 referred to; GIO General Ltd v Smith (No 2) [2011] NSWSC 998; IAG Ltd v Riley [2013] NSWSC 684 not followed.