Cable v Gray

Background facts and procedural history

1. Pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW) (the Act), for Mr Cable to have an entitlement to a sum for non-economic loss, he needs to show a whole person impairment of greater than 10%.
2. There was no agreement between the parties as to the whether Mr Cable's level of whole person impairment exceeded 10%.
3. Mr Cable made an application to the Medical Assessment Service for an assessment to be carried out. A report of Dr Dixon, orthopaedic surgeon, assessed his whole person impairment under the relevant guidelines at 16%.
4. Mr Cable underwent a further medicolegal examination by Dr Dixon who provided a report dated 30 June 2020, stating that Mr Cable's right shoulder and lower back injuries had not yet stabilised and that it was probable that he would require further operative intervention.
5. On 3 July 2020 Mr Cable had surgery on his right shoulder by Dr Petchell. On 17 September 2020 Mr Cable had lumbar spine surgery performed by Dr Davies. On 6 May 2021 Mr Cable had further surgery on his lower back, again performed by Dr Davies.
6. On 7 December 2020 Dr Rosenthal issued a certificate concluding that Mr Cable's injuries comprising injury to his cervical thoracic and lumbar sacral spine did not give rise to a whole person impairment of greater than 10%.
7. On 20 August 2021 Mr Cable sought a review of Dr Rosenthal's assessment on the basis that the assessment was incorrect in a material respect. This was accepted by the relevant officer at the Person Injury Commission, ("the Commission"), and the application for review was granted.
8. As provided by s 63(3A) of the Act a review panel's task is to make a fresh assessment of all matters. The Panel was not confined to a review of Dr Rosenthal's error. As part of his application for review, Mr Cable provided written submissions which requested that he be physically examined by the Panel and that further medicolegal evidence regarding his recent surgeries be received. It was stated that this could not occur until 2022 because of Dr Dixon's unavailability.
9. On 19 October 2021 the Commission advised that a physical examination by the Panel (or part of it) by Assessors Dr Moloney and Dr Gray would take place on 24 November 2021.
10. On 29 October 2021 Mr Cable's solicitor wrote objecting to the examination being conducted before the further report had been obtained from Dr Dixon.
11. On 4 November 2021 the Commission responded to the letter as follows: "Dear parties, I have made the panel aware of the claimant's request to adjourn the examination until May 2022 because he has an appointment with Assessor (sic) Dixon on 31 March 2022. The Panel advised that they will proceed to review the assessment of Assessor Rosenthal on 24 November 2021. If you want to provide further information please provide it before the examination; afterward, the Panel won't accept it. The Review Panel will expect the claimant to attend the examination on 24 November 2021. Kind Regards, Bhavin Fand. 04/11/2021"
12. On 12 November 2021 Mr Cable's solicitor responded, submitting that it was premature for the Panel to assess Mr Cable and again, sought an opportunity to obtain medicolegal evidence from Dr Dixon and to obtain expert evidence from a biomechanical engineer in response to evidence served by the insurer. There was no reply.
13. On 23 November 2021 Mr Cable's solicitor again wrote to the Commission explaining that Mr Cable was scheduled for further back surgery on 2 December 2021. There was no reply.
14. The Panel issued a certificate dated 5 December 2021, revoking the certificate of Dr Rosenthal and certifying that the only injury suffered by Mr Cable in the accident was: "cervical spine - soft tissue injury". That gave rise to a whole person impairment of 5%. The Panel concluded that "the lumbar spine - soft tissue injury", "right hip - soft tissue injury" and "right shoulder - soft tissue injury" were not caused by the accident.
15. The decision of the Panel to refuse to delay its assessment is the subject of the application for judicial review.

The appeal

1. Mr Cable asserted in his initiating summons that the Panel fell into jurisdictional error and failed to exercise its statutory powers in the following respects: 1. In refusing to adjourn the examination of the plaintiff by the third defendant, the second and third defendants failed to accord the plaintiff procedural fairness in a material respect. Such error meant that the plaintiff was unable to obtain the evidence he desired to put before the third defendant. 2. In failing to give any reasons for refusing the adjournment, the second and/or third defendants failed to accord the plaintiff procedural fairness in a material respect. The failure to provide reasons meant that the plaintiff was not made aware of the reason why the adjournment was not granted. 3. On the face of the decision of the second and/or third defendants not to grant the adjournment and provide reasons in relation thereto, it is not apparent why the application to adjourn made by the plaintiff was not granted.
2. Mr Cable seeks the following: 1. A declaration that the third defendant (the Panel) committed jurisdictional error in refusing to delay the assessment of the plaintiff that took place on 24 November 2021. 2. A declaration that the third defendant (the Panel) committed jurisdictional error in so far as they failed to provide any reasons for the decision not to postpone the examination of the plaintiff by the third defendant after being requested to do so. 3. An order in the nature of certiorari or; alternatively, a declaration setting aside or declaring invalid the certificate of the third defendant (the Panel) made on 5 December 2021. 4. An order that the fourth defendant refer the matter for further assessment by a different review panel.

Relevant principles

1. This Summons for judicial review is brought pursuant to s 69 of the Supreme Court Act 1970 (NSW) which enables the supervision of executive or administrative decision-making in New South Wales.
2. The Court's role is to determine the legality of administrative decisions, not the merits. As Brennan J set out in Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at p 35 to 36: "The duty and jurisdiction of the Court to review administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from illegality, are for the repository of the relevant power and, subject to political control, for the repository alone."
3. Given the necessary deference to the authority of the administrative decision-maker, its reasons are to be read as a whole, fairly and beneficially, and without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at p 271 to 272.
4. The structure of the Act is such that claims assessors are empowered by and must have regard to guidelines made under the Act, which establish procedures for assessing claims. The guidelines are generally binding.
5. Significant to this appeal is the fact that the Panel is bound by the common law to comply with the rules of natural justice and procedural fairness.
6. Any assessment, including any decision-making by the Panel, needs to show in a comprehensive and transparent way the actual path of reasoning: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], [55] and [56]; Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 per Emmett JA (at [34]), Meagher and Leeming JJA agreeing at [1] and [5] respectively.

The Review Panel's task

1. Section 63 of the Act defines the functions of a review panel in these terms: 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the President to refer a medical assessment under this Part by a single medical assessor to a review panel for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (2B) The President is to arrange for any such application to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3) The review panel is to be constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission. (3A) The review of a medical assessment is not limited to a review only of 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. (3B) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. (7) An application under this section must be made within - (a) 28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought, or (b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.
2. Justice Giles elaborated upon the task of a review panel in McKee v Allianz (Australia) Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [38]: "…The review panel has the one task, to review the medical assessment referred to it and either confirm the medical assessor's certificate or revoke it and issue a new certificate. In the manner earlier explained, the members of the appeal panel bring their expertise to that task, and the confirmation or the new certificate embodies their professional opinion as to the matters referred for assessment in whole. In order to come to its decision to confirm the medical assessor's certificate or revoke it and issue a new certificate the review panel must give consideration to the matters referred for assessment in whole. The consideration as to some aspects of the matters may be brief if there is a discrete particularised incorrectness in a material respect and no other incorrectness in a material respect is apparent to the professional gaze of the members of the review panel, and depending on perceived occasion to go further the review panel may then focus on the particularised incorrectness in a material respect. If that occurs, it is not failure in an obligation or the exercise of a discretion. It is the exercise of professional judgment."
3. The Medical Assessment Guidelines issued by the Commission pursuant to s 44(1)(d) include relevantly: 9.7 In the case of clause 9.1.4, an officer of MAS (the Medical Assessment Service) may defer the allocation of the dispute, for a period not exceeding 6 months at a time in circumstances where the officer of MAS is satisfied that: 9.7.1 further information or documentation has been requested.
4. Clause 13.2 of the guidelines provides: 13.2 The Certificate shall include written reasons for the determination in the form approved by the Authorities.

Mr Cable's arguments as to why the Panel's Certificate should be set aside and the matter remitted to a different Review Panel

1. Senior Counsel for Mr Cable contended that there were two jurisdictional errors committed by the Panel. The first was that the Panel refused to defer the assessment of Mr Cable. The second was that no reasons (at all) were given by the Panel for that decision. These errors both amount to jurisdictional error or are errors of law. The assessment by the Panel and its subsequent certificate thus did not comply with the rules of procedural fairness.
2. These failures in procedural fairness fatally affected the Panel's decision. The failure of the Panel to defer the assessment meant that the Panel denied Mr Cable the opportunity to put forward critical expert evidence pertaining to his recent surgery. This was in circumstances where there was no particular urgency to carry out the assessment, nor was there any opposition by any other party to the application to defer the assessment.
3. The Panel failed to give reasons for the decision not to defer the examination. The Panel/Commission is not required to give detailed reasons for every decision made, but there is an obligation to identify why the assessment was not postponed. Without giving any reason (at all) for the decision, the Panel failed to accord procedural fairness to Mr Cable and this constitutes jurisdictional error.

Decision

1. As submitted by Senior Counsel for Mr Cable, there was no particular urgency in carrying out the assessment. On the contrary, it was important to Mr Cable's case that the Review Panel had available to it relevant medical opinion that covered the surgery carried out on Mr Cable so that the Panel could be appropriately informed.
2. No one opposed deferral of the assessment.
3. The position regarding the surgery was made clear in appropriately detailed letters sent on behalf of Mr Cable, to which other than the first of the three, there was not the courtesy of a reply.
4. As stated in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]: "[13] Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case."
5. The timing of the examination was forced for no valid reason and the decision to refuse to postpone it was never explained.
6. This too was a failure to afford procedural fairness and this also constitutes jurisdictional error.
7. Accordingly the certificate of the Panel should be set aside and the matter referred by the fourth defendant for further assessment by a differently constituted review panel.

Orders

1. I make orders as follows: 1. The certificate of the third defendant dated 5 December 2021 is set aside. 2. The fourth defendant is to refer the matter for further assessment by a different review panel.

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: 16 November 2022