Alliance Australia Insurance Limited v Cervantes [2012] NSWCA 244
Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950
71 MVR 496
Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22
Bugat v Fox [2014] NSWSC 888
Source
Original judgment source is linked above.
Catchwords
77 MVR 348Alliance Australia Insurance Limited v Cervantes [2012] NSWCA 244Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 95071 MVR 496
Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22
Bugat v Fox [2014] NSWSC 88867 MVR 150
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259[1996] HCA 6
Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSCNguyen v Motor Accidents Authority (NSW) [2011] NSWSC 35158 MVR 29
Owen v Motor Accidents Authority of NSW [2012] NSWSC 65061 MVR 245
Rodger v De Gelder [2015] NSWCA 21171 MVR 514
Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR
The plaintiff seeks judicial review of a decision made on 11 September 2017 by the third defendant being a review panel of the Motor Accident Medical Assessment Service (The Review Panel) convened by the Proper Officer of the State Insurance Regulatory Authority (The Authority). The decision was made pursuant to ss 61 and 63(3) of the Motor Accidents Compensation Act 1999 (NSW) (the Act) and is said to contain a number of jurisdictional errors, or errors of law on the face of the record. The plaintiff orders in the nature of certiorari and mandamus setting aside the decision made, and remitting the matter for redetermination, by the Review Panel; or a declaration that the decision is invalid.
[3]
Background facts
The evidence at the hearing consisted of the affidavit of Kin Lap Chow sworn on 11 December 2017 and attachments (p, KLC). Mr Chow is the solicitor with daily carriage of the matter on behalf of the plaintiff.
On 14 October 2015 the plaintiff suffered injuries in a motor vehicle accident while holidaying on the NSW South Coast. The plaintiff was a rear-seat passenger in the family car wearing a seatbelt when it was hit from behind by another vehicle travelling at a 'reasonable speed' (p 162, KLC). Due to the force of the impact the plaintiff's head was thrown violently forward then backwards. The rear seat was not fitted with a head restraint.
Following the collision emergency services attended the scene and the plaintiff was taken by ambulance to Wollongong Hospital to undergo examination and treatment. The plaintiff alleges that she suffered injury to her cervical-spine, her left shoulder and right shoulder in the accident.
The incident occurred while the plaintiff was on annual leave from her work as a care service employee. She did not return to work until beginning of November 2015, about three weeks or so after the accident. Upon her return the plaintiff found that her ongoing neck pain and restricted movement interfered with her ability to satisfactorily complete her duties. Due to her limitations the plaintiff was forced to cease working.
The plaintiff underwent a variety of treatments with varying degrees of success. Initially she received physiotherapy for her neck which did not result in any improvements in her pain levels. It became apparent during the subsequent medical assessments of the plaintiff that the physiotherapy treatment may have aggravated the underlying neck injury.
Subsequently, the plaintiff was referred for multi-disciplinary pain management. It appears this approach was also ineffective and consisted primarily of coping strategies rather than of interventional treatments. Amongst the therapies employed, the plaintiff utilised a transcutaneous electrical nerve simulation (TENS) machine, a device used for pain management. It is unclear how effective this was for the plaintiff.
The plaintiff continued to endure ongoing pain and significant discomfort, leading her to explore both conventional and non-conventional ways of improving her pain. Despite the plaintiff's efforts the treatments she received proved largely ineffective.
After being forced to leave work, the plaintiff was left without employment and burdened by the ongoing physical and mental effects of the injury.
As the injury wore on, the mental wellbeing of the plaintiff worsened as her ongoing pain precluded her from undertaking the physical outdoor activities that she had previously enjoyed. The plaintiff was eventually prescribed anti-depressants in an effort to treat her psychological condition.
Twelve months after the accident, the plaintiff's condition was not improving The plaintiff's solicitor wrote to the first defendant (the insurer) on 17 October 2016 requesting that the insurer concede that the plaintiff had suffered whole person impairment greater than 10%, the threshold for non-economic loss damages. This claim was rejected by the insurer on 27 October 2016 by email advising the plaintiff's solicitor the insurer would not concede the degree of permanent impairment claimed. This triggered the initiation of dispute resolution mechanisms under the Act.
[4]
Medical Assessment Certificate: 3 March 2017
Under s 59 of the Act the dispute was referred by the plaintiff to the Medical Assessment Service (MAS). On 3 March 2017 Medical Assessor Dr Chris Harrington issued a Medical Assessment Certificate under Part 3.4 of the Act which certified that the plaintiff had a whole person impairment of greater than 10% pursuant to s 131 of the Act.
The following claimed injuries were referred for assessment by MAS they (p 161, KLC):
Neck - soft tissue injury; whiplash
Head - soft tissue injury; whiplash
Thoracic spine - soft tissue injury
Right shoulder - soft tissue injury
Right arm - soft tissue injury
Left arm - soft tissue injury
Right side torso - soft tissue injury
Right hip - soft tissue injury
Right leg - soft tissue injury
Left shoulder - aggravation of pre-existing injury
The medical certificate was issued on 3 March 2017 certified that the permanent impairment of the plaintiff was greater than 10%. Dr Harrington arrived at this conclusion by combining an impairment of 5% for the cervical spine with 4% impairment of each upper extremity referable to injury to the left and right shoulder. This apparently produced a combined total of 13% (p 168, KLC).
[5]
Dr Harrington's reasons
Dr Harrington considered that the plaintiff did not present as completely authentic over the entirety of the assessment, observing that "there might have been a small amount of a contrived presentation" (p 164, KLC). This however was not explained in any greater detail in the certificate and did not form the basis of any additional conclusion in the Reasons.
Based upon his assessment and review of supporting material Dr Harrington concluded that the plaintiff had a permanently impaired neck, a permanently impaired right shoulder and a permanently impaired left shoulder, he summarised this finding in the following terms: (p 166, KLC)
In my opinion Ms Cahill's injuries have stabilised. I consider Ms Cahill to have reached maximum medical improvement.
She has ongoing pain and restricted movement of the neck which has resulted in permanent impairment.
She has ongoing pain and restricted movement of the right shoulder which has resulted in permanent impairment.
She has ongoing pain and restricted movement of the left shoulder which has resulted in permanent impairment
A previous left shoulder injury was ruled out as a potential contributor to the current injury despite underlying rotator cuff pathology, because the plaintiff 'was able to return to pre-injury duties and was asymptomatic at the time of the subject motor accident' (p 167, KLC).
These findings were contested by the insurer which lodged an application for review.
[6]
Review Panel's Certificate, 11 September 2017
The insurer argued that Dr Harrington's assessment was incorrect in the following respects said to be material:
1. It was an error to relate any injury to each shoulder to the motor accident as there was no contemporaneous record of in such injury in the medical material relating to the accident;
2. The degree of permanent impairment for the plaintiff's neck injury was over-assessed;
3. Failed to give adequate reasons for his assessment in the light of him finding inconsistency of presentation;
4. Failed to give adequate reasons for relating the impairment of the plaintiff's shoulders to the motor accident.
The plaintiff, through her solicitors, argued that the connection between the motor accident and injuries to her shoulders was adequately documented in contemporaneous documents. Reference was made in particular to the juxtaposition of "neck injury" and "whiplash", or like language, in the primary documents as indicating that there were more extensive injuries than a neck injury only (p. 208 [20], KLC). Particular emphasis was laid on the injury details and markings on a "body map" in the medical certificate forming part of her personal injury claim form (p 105, KLC). The injury details were given as "neck pain - whiplash" and it was argued that the markings on the "body map" detailed 4 sites of injury: neck; thoracic spine; left shoulder; and right shoulder. Otherwise issue was joined with the insurer.
On 14 June 2017 the proper officer of the Authority determined that the proceedings before the Authority were to be referred to a Review Panel under s 63(3) of the Act. The proper officer was satisfied there were reasonable grounds to suspect Dr Harrington erred in relating the impairment of the plaintiff's upper extremities to the motor accident: s 63(3) of the Act. It was unnecessary for her to consider the remaining grounds. The Review Panel was constituted by three medical assessors; Dr Crane, Dr Assem and Dr Moloney. With the consent of the parties, Dr Moloney alone medically examined the plaintiff on behalf of the other panel members as part of their review.
The Review Panel called for and received photographs of the damage to the car the plaintiff was travelling in. They considered the damage was consistent with "a moderate rear impact" (p. 217, KLC).
On 10 September 2017, the Review Panel determined that the plaintiff did not suffer injury to her left shoulder or her right shoulder in the motor vehicle accident which led them to conclude that the plaintiff did not have a whole person impairment exceeding 10%. The Review Panel issued a new certificate of assessment under s 63(4) of the Act containing this finding and revoking the certificate of 3 March 2017.
[7]
Review Panel Reasons
It's not necessary to summarise the whole of the Review Panel's reasons. The issue at the hearing, as my analysis of the written submissions below demonstrates, was principally whether the Review Panel's decision that injuries to the plaintiff's left shoulder and right shoulder were not caused by the motor accident (p 216, KLC) was vitiated by jurisdictional error.
As I have stated Dr Moloney examined the plaintiff on behalf of the Review Panel. Dr Moloney recorded the history he received from the plaintiff that her main complaint when she was taken to Wollongong Hospital by ambulance after the accident "was severe neck pain" (p 217, KLC). In relation to her then current symptoms, Dr Moloney summarised the position as follows (p 218, KLC).
The most severe pain is in the neck which radiates into both trapezius muscles but more so on the right and into the interscapular region. Most days it is associated with an occipital headache which increases during the day in intensity. There is some radiation of pain into the right arm which includes the axilla, scapula and pectoral muscles. There is occasional pins and needles in the entire right arm, but none in the left (sic).
There was also a complaint of low back pain and that "she has been very anxious and has had a very poor sleep pattern mainly due to neck pain".
On clinical examination there was a reduction in the range of movement of the cervical spine, tenderness "all over the cervical spines and trapezius muscles more so on the right". There was tenderness over both shoulder blades, but no guarding or muscle spasm in the neck. When examining the upper extremities by use of a goniometer some limitation of the range of shoulder movement was noted. Dr Moloney recorded at (p 219, KLC):
[The plaintiff] stated that the limitation in shoulder movement was due to pain in the pectoral muscle region bilaterally with some pain in the anterior right shoulder and right scapular region. There was a normal range of elbow movement.
….
It was noted that there had been variations in shoulder range of movement with the different assessments being made. [The plaintiff] stated that she thought that the shoulder pain was present from the start, but she was unsure precisely when this occurred. She could not explain why there had been near-normal ranges of movement after the accident and even much better range of movement in February 2017 when Assessor Harrington. At the time of my examination there were also variations on repeat testing.
(At p 219 - 20, KLC)
[8]
Submissions
I have had the benefit of written submissions from the plaintiff and the defendant supplemented with oral argument at the hearing.
[9]
Plaintiff's summary submissions: Failure to consider the Initial Medical Certificate
The central submission of the plaintiff at [22] of the written submissions filed 4 May 2018 is the assertion that the Review Panel failed to appropriately consider the injury certificate and "body map" (p 105, KLC) and in so doing erroneously determined that (p 221, KLC):
1. There was no contemporaneous documentation of any injury to the right shoulder in the motor vehicle accident on 14 October 2015;
2. The initial medical certificate written by the plaintiff's treating general practitioner dated 23 December 2015 recorded the plaintiff's neck as the only injured area;
3. There was no contemporaneous documentation of any injury to the left shoulder due to the accident;
4. The treating general practitioner did not mention any injury to the left shoulder in the initial medical certificate dated 23 December 2015;
5. The treating general practitioner did not mention any injury to the right shoulder in the initial medical certificate dated 23 December 2015.
It is the submission of the plaintiff (at [17]) that the conclusion of the Review Panel failing to find a WPI in excess of 10% was essentially based upon the panel's purported finding on causation in relation to the plaintiff's injuries to her left and right shoulders. Namely, that the injuries to the left and right shoulders were not causally related to the motor vehicle accident and therefore did not give rise to any permanent impairment.
In the alternative, the plaintiff's contended that the Review Panel should have given regard to the "body map" graphic (p. 105, KLC). It is the submission of the plaintiff (at [25]) that this "plainly and graphically" contains a contemporaneous record of injury to the plaintiff's left and right shoulders. That record, it is suggested, is in the form of two marks placed on the left and right shoulders of the body map graphic which are indicative of injuries received in the motor accident.
By failing to consider the markings on the body map graphic the plaintiff submits that the medical review panel misdirected itself when finding that there was 'no contemporaneous documentation of any injury to the left or right shoulders in the motor vehicle accident'. It is stated by the plaintiff at [33] that this amounts to a failure of the medical review panel to take into account a relevant consideration.
[10]
Plaintiff's summary submissions: Panel's reliance on the purported lack of contemporaneous records as determinative of the question of causation
The plaintiff submits that even if it is found that there were no contemporaneous records of injury to the left and/or right shoulders the Review Panel erred in assuming that the purported lack of contemporaneous records was determinative of the issue of causation. It is said that such an error would be the same error identified in Bugat v Fox [2014] NSWSC 888; 67 MVR 150 where the Court held that one of the pivotal questions for a Review Panel was whether the injuries of which the Plaintiff complained had been caused (or materially contributed to) by the motor accident alleged. Of that question RS Hulme AJ observed at [31]-[32]:
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 accident she suffered "pain in her neck going out to both shoulders".
The learned judge reminded himself that as an administrative decision maker, the Review 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 Limited v Motor Accident Authority of NSW [2006] NSWSC 1096 at [36]. However, RS Hulme AJ noted the following:
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.
On the basis of the principles expounded in Bugat v Fox and the facts of this case the plaintiff asserts that the Review Panel has impermissibly relied solely on the purported lack of contemporaneous records in making its determination on causation of the plaintiff's left and right shoulder injuries. In so doing, it is said that the Review Panel has given little or no weight to the plaintiff's own evidence as was given before the panel (p 219-220, KLC), recorded in the following terms as set out above: '[the plaintiff] stated that she thought that the shoulder pain was present from the start but she was unsure precisely when this occurred'.
[11]
First Defendant's submissions
The insurer made a number of submissions in reply to the Plaintiff's legal challenge to the validity of the Review panel's decision which are summarised below.
[12]
Function of a Review panel
It was submitted by the insurer that the function of a medical Review Panel is to form and explain its own opinion on the medical question referred to it. This function was described by the High Court of Australia in Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR; [2013] HCA 43 in relation to an analogous scheme under Victorian legislation in the following terms (at [47]):
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the medical panel is doubtless obliged to observe procedural fairness…It goes too far, however, to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions.
[13]
Alleged failure to take into account the initial Medical Certificate
The insurer submits that the markings on the "body map" (p 105, KLC) are neither 'plain' nor 'obvious'. The forward view is not necessarily open to the construction that the shoulders are marked as the only possibility. Moreover in addressing the assertion that the initial medical certificate was never referred to by the second review panel the defendant says that the panel did respond to the submissions involving the medical certificate at (p 221, KLC). This is the certificate of December 2015.
The insurer disputes that it can be said categorically that these markings were on the left and right shoulders. The insurer says that it was open to the medical assessors review panel to find the markings on the left and right shoulders of the body map graphic were intended to reference the neck as opposed to either shoulder. The "body map" should be read together with the injury details, "neck pain - whiplash".
The insurer challenges the plaintiff's reliance on Bugat v Fox. The insurer argues that the Review Panel did not regard the absence of contemporaneous notes to be determinative of causation. Rather, the Review Panel expressly had regard to a variety of other considerations. The insurer relied upon Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at p 271-272 stating a beneficial construction be given to the Reasons and that they be read as whole. A list of eleven other considerations which the insurer says were also part of the reasons that went to the issue of causation (in addition to the lack of contemporaneous notes) and formed part of the Review Panel's determination were set out at [41] of the insurer's written submissions.
The defendant submits (at [44]) that there is no error of the type described by the Court of Appeal in AAI Ltd t/as GIO McGiffen [2016] NSWCA 229; 77 MVR 348. There it was found that a Review Panel was in error for 'deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence' (at [65]).
The insurer submitted that the present matter accorded with the decision of Adamson J in Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950; 71 MVR 496 (at [52] ff):
[52] The Review Panel also took into account the circumstances that the claim form referred only to an injury to the Plaintiff's neck. Although the claim form had been filled in by the plaintiff's solicitor and not by the plaintiff himself…
[53] In these circumstances it was open to the Review Panel to find, as it did, that the Plaintiff did not sustain injuries to the areas claimed other than the neck in the motor vehicle accident. I reject the Plaintiff's submission that the Review Panel impermissibly allowed the clinical notes to be "determinative". Such a submission does not do justice to the careful process undertaken by the Review Panel…
[54] The reasons reveal that the Review Panel had regard to the following in coming to a conclusion on causation: the parties' submissions; Dr Kurtzers clinical notes; the claim form signed by the plaintiff on 28 September 2011; the initial medical certificate; various radiological reports and a Centrelink Medical Assessment, as well as the additional material provided by the Plaintiff's solicitors which included the statements of the plaintiff his wife and Ms Lee Brown.
[55] That the Review Panel gave weight to contemporaneous clinical notes was unexceptional and reflects the well-known reliability of such records…
[14]
Decision
With respect, I do not think it can be seriously argued that the Review Panel failed to consider the content of the Plaintiff's treating GP's medical certificate which formed part of the plaintiff's personal injury claim form (p 105, KLC). As the insurer has argued it was expressly referred to by the Review Panel in those passages of their reasons (set out above at [30]) dealing with their conclusions in relation to whether an injury to the left shoulder and the right shoulder was received in the motor accident. As the insurer emphasised the "body map" must be considered in conjunction with what the GP has written under the heading "Injury Details". Those words "neck pain - whiplash" are not terms of art, nor do they, of necessity, lead to only one legal conclusion as the plaintiff submitted both before the Review Panel and before me.
In written submissions, the insurer referred, among other things, to Black's Medical Dictionary, 43rd Edition (2017) defining whiplash in the following terms:
An injury to the neck region caused by forcible flexion and, for example after a car accident, involving sudden deceleration. The injury usually affects the ligaments, spinal joints and soft tissues of the neck. … Pain and stiffness of the neck result.
I accept that this accords with the ordinary meaning of the term whiplash. It relates specifically to injury to the neck. Its aptness may be taken to be the consideration that this simple word in every day use describes the mechanism of the infliction of the injury to the neck as set out in Black. In context, in the present case, it certainly does not, as was argued, connote an injury which is separate to, or different from, the plaintiff's "neck pain". In its ordinary meaning one would understand "neck pain" to be a description of the symptom and "whiplash" to be the nature, or mechanism, of the injury.
Moreover looking at the "body map", I do not agree that it necessarily depicts four separate locations of injury. The posterior view (to the right) shows neck pain and also pain in the thoracic spine. The forward view shows what I would regard as pain at the base of the neck on each of its lateral aspects. The markings are not at the shoulder.
Moreover, I would infer that the "body map" was completed by the GP. I say this because another "body map" to illustrate the plaintiff's "injuries from the accident" appears at (p 102, KLC). The handwritten particulars of injury appear as follows:
What are you injuries from the accident?
List all your injuries below, and mark the affected areas on the body map.
Injury Location (for example, left or right)
Neck Whiplash
Head Memory
[15]
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 May 2019
The new certificate set out the assessment in the following terms:
THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER SECTION 63(4) IS AS FOLLOWS:
The panel revokes the certificate dated 3 March 2017 and issues a new certificate determining that:
The following injury caused by the motor accident gives rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%:
Cervical spine - soft tissue injury
In reaching its decision the Review Panel considered the matters cited in the Application for Review and noted that the following aspects of the assessment were disputed (page 216, KLC):
Permanent impairment as regards causation an assessment of the left and right shoulders and assessment of the cervical spine (sic).
The Review Panel added, "There was no response from this application". This is odd because undated submissions were forwarded under cover of an email dated 14 July 2017. The panel's reasons also refer to "Reply form and attached documents" as being among the material reviewed (p 215, KLC). It was not argued that this material, including the written submissions, was not put before the Review Panel and I find that it was. The "no response" comment is a non-material error. As I say below, it was argued when resolving to issue whether the plaintiff's shoulders were injured in the motor accident that the Review Panel did not consider the argument advanced about the "injury details" and "body map".
Under the heading "Panel Deliberations" the following relevant findings were made (at p 220, KLC):
There was documentation that Ms Cahill sustained a soft tissue injury to her cervical spine at the time of the accident. It was documented by the ambulance officer and in the discharge summary from hospital as well as by the treating GP in [her] medical certificate (p 105, KLC).
The injury is assessed using table 73 of AMA Fourth Edition. On testing range of movement dysmetria was present without guarding or spasm in the cervical musculature. There were no signs of radiculopathy or non-verifiable radicular complaints in the upper limbs. This gives the classification of DRE I which II 5% WPI (sic).
The Review Panel rejected the claimed soft tissue injuries to the head, thoracic spine, right and left arms, right side of the torso, right hip and right leg principally on the ground that there was no contemporaneous evidence of injury to these areas of the plaintiff's body. I will not dwell on these reasons because these findings are apparently not contentious. But it is necessary to set out the reasons for the conclusions relating to impairment of each of the plaintiff's shoulders (p 220-1 KLC):
Right shoulder - soft tissue injury
There is no contemporaneous documentation of any injury to the right shoulder sustained in the motor vehicle accident on 14 October 2015. The initial medical certificate written by the treating GP in December 2015 (p. 105 KLC) recorded the neck as the only injured area. [Her] referral to a physiotherapist on 30 November 2015 was also to only treat the neck region. The first mention of pain in this region was in March 2016 which is 5 months after the accident. This did not mention specifically an injury to the shoulder but rather pain radiating down the arms. No investigations have been undertaken on the right shoulder and the limitations observed were due to symptoms at remote locations rather than a Nguyen type pattern of pain referred from the cervical spine to the right shoulder. Neck movement does not cause any pain in the shoulder region. The panel does not consider that there has been an injury sustained in the right shoulder due to the accident. The Panel also notes the inconsistency on testing range of movement of the shoulder at the time of our examination and also in comparison to previous medical assessments.
Left shoulder - soft tissue injury
There is also no contemporaneous evidence of any injury to the left shoulder due to the accident. There is a past history of a rotator cuff tear in the left side in 2014, but it was noted that there was a full range of movement of the left shoulder prior to the accident in 2015. The treating GP did not mention any injury to the left shoulder in [her] medical certificate or referral to the physiotherapist and only recorded pain into the shoulders 5 months after the accident. No investigations have been undertaken on either shoulder and no treatment has been undertaken. The limitations were due to symptoms at remote locations rather than a Nguyen type pattern of referral of pain from the cervical spine to the left shoulder. The Panel does not consider that this shoulder was injured in the accident. As with the right shoulder there have been great inconsistencies on testing range of movement of the time of our examination and in comparison to previous assessments.
I take the reference to Nguyen to be a reference to the decision of Hall J in Nguyen v Motor Accidents Authority (NSW) [2011] NSWSC 351; 58 MVR 296 at [92] - [101]; [119] - [120]. I should point out that it was not argued on behalf of the plaintiff that the Review Panel fell into error of the type identified in Nguyen.
The authority relied upon to substantiate this view is the decision of the Court of Appeal in Rodger v De Gelder [2015] NSWCA 211; 71 MVR 514 upholding the ruling the ruling of the primary judge. Gleeson JA said (at [109]):
Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel's decision recorded it its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review. (Citation omitted)
(See also: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245.)
The plaintiff submits (at [37]) that the medical certificate plainly indicates physical injury to the left and right shoulders. If the medical review panel found against the plaintiff on the question of causation on the basis of an absence of contemporaneous complaint the panel's assessment decision is invalid and it should be set aside.
The plaintiff submits that the review panel failed to consider and apply the test for legal causation, and argues that there was a constructive failure on the part of the medical assessors panel to exercise its duty pursuant to s 63 of the Act. The decision is said on this basis to be invalid. In making this submission the plaintiff relies on: Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231 and Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22.
The insurer submits that the Plaintiff's own evidence does not support a conclusion that the shoulder pain was present immediately after the accident, given that she is recorded as saying "she is unsure precisely when this occurred". It is the submission of the defendant that this indicates that she is uncertain whether the pain was in fact present from the start following the accident. As this is recorded in their reasons it cannot be said the Review Panel failed to have regard to this history or the manner of its expression.
The defendant submitted that no error of law or jurisdictional error has been demonstrated in the Panel's decision.
This "body map" has the affected areas marked on the posterior aspect only. There are no injuries marked on the anterior aspect. The injuries marked on the posterior aspect are quite clearly the top of the plaintiff's head and her neck. The juxtaposition of "neck" as the injury with "whiplash" as the location demonstrates that the two words are describing one and the same thing: a neck injury. There are no words and no marking in any way suggestive of, or consistent with, a shoulder injury. That these documents do not support a connection, let alone a necessary connection, between the motor accident and impairment of the left shoulder and the right shoulder was a conclusion well open to the Review Panel. Nor can it be said, in dealing with the plaintiff's argument as it did, that the Review Panel had failed to respond to "a substantial and clearly articulated argument relying on established facts": Alliance Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [22]; Rodger v De Gelder at [89] - [96], [109]; AAI Limited T/as v GIO v McGiffen [2016] NSWCA 229; 77 MVR 348 at [66]. It must be borne in mind that this is not a case like Nguyen v Motor Accidents Authority or AAI v McGiffen where the plaintiff's case was that as a consequence of the primary injury, a secondary physical injury arose later in point of time by dint of a discernible causal pathway.
I accept that it is clearly established in this area of administrative law that to decide causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury "only partially" addresses the question posed by s 58(1)(d) of the Act. That paragraph refers to the degree of permanent impairment caused by the injuries resulting from the motor accident. This error will lead to the certificate of the Review Panel to being set aside as "a purported and not real exercise of its statutory function": AAI v McGiffen at [65]. But as the insurer has argued the absence of discernible contemporaneous complaint of injury was only one factor referred to by the Review Panel.
As the insurer has argued, the Review Panel (p 221, KLC) referred to a number of factors in the critical passages set out above at [30]. Of these, the absence of a contemporaneous record of complaint was but one. Other factors were the content of the December 2005 medical certificate (p 105, KLC); the GP's referral to a physiotherapist with a request for treatment to the neck only; the first explicit mention of pain involving the shoulders being in March 2016, 5 months after the accident; the fact that this complaint was not restricted to the shoulder, but extended to pain radiating down the arms; no investigation was undertaken to diagnose injury on either the right or left shoulder; such limitations of movement as Dr Moloney was prepared to accept in the shoulder were due to symptoms in the pectoral muscles rather than referred pain from the neck; neck movement did not cause pain in the shoulders and there was inconsistency on testing of the shoulders on clinical examination. These considerations applied equally to the right shoulder and the left shoulder.
In considering the sufficiency of this evidence, one should bear in mind the nature of the Review Panel's function as described by the High Court in Wingfoot (at [43] above). And as the Court of Appeal said in AAI v McGiffen (at [88]), as an expert panel the Review Panel was entitled to make its own assessment as to the adequacy of the evidence proving, or disproving, an "injury". It cannot be said in the circumstances as this case that there was no material supporting the Review Panel's conclusion of fact or, as I have said, that the material before it admitted of one correct answer only. If the Review Panel fell into error in regard to the central issue, it was an error of fact within jurisdiction.
I accept the argument that this case falls into the category discussed by Adamson J in Bradley where it was open to the Review Panel "to find, as it did, that the plaintiff did not sustain injuries to the areas claimed other than the neck in the motor vehicle accident". As her Honour said, the weight given to contemporaneous clinical notes was unexceptional. Here the Review Panel did not fall into the mistake of treating the absence of contemporaneous record as decisive.
For these reasons I order:
1. Refuse relief sought;
2. Dismiss the proceedings;
3. The plaintiff to pay the first defendant's costs.