Cornwall v Allianz Australia Insurance Limited

Supreme Court of NSW|2021-11-03

Judgment

HER HONOUR: This is a judicial review of a decision of the Proper Officer of the President of the Personal Injury Commission of New South Wales.
The Proper Officer, Tami O'Carroll ("the Proper Officer") made a decision under s 62 of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act") dismissing the plaintiff's application for a further medical assessment referral.
By amended summons filed 28 May 2021, the plaintiff relevantly seeks: 1. An order that plaintiff's application for further medical assessment be referred to a medical assessor for assessment under the MAC Act; 2. In the alternative, that the plaintiff's application for further assessment be remitted to the Proper Officer of the President of the President of the Personal Injury Commission for determination according to law.
The plaintiff is David Cornwall. The first defendant is Allianz Australia Insurance Limited ("the insurer"). The second defendant is the President of the Personal Injury Commission. The third defendant is the Proper Officer. The parties relied on a joint court book ("Ex A").

Background

On 3 January 2015, the plaintiff suffered injuries in a motor vehicle accident. He was "rear ended" twice. The first collision was when he was driving his vehicle and the second as he was leaning through the window of his car from outside to obtain something from the glovebox of his car after both vehicles had pulled to the side of the road. Both collisions were the fault of the insured driver for whom the first defendant is the relevant compulsory third party insurer.

Assessment by Approved Medical Assessor

On 11 September 2017, the plaintiff's claim was the subject of a medical assessment by the Medical Assessor, Dr Alan Home ("the Assessor"). On 14 September 2017, the Assessor issued a Medical Assessment Certificate pursuant to Pt 3.4 of the MAC Act (Ex A, 101).
The Medical Assessment certificate deposes that the injuries to be assessed were the following (Ex A, 102): "Cervical spine - soft tissue injury, T1 fracture of sciatica Lumbar spine - soft tissue injury, secondary to right L5/S1 disc protrusion compressing the right S1 nerve root, disc dehydration and sciatica Right leg & foot - paraethesia, decreased sensation"
Under the heading 'Post-accident' the Assessor stated (Ex A, 110): "The report of physiotherapist, Trudy Crapp, dated 7 January 2015, four days post accident documents of complaints of right sided neck pain, right lateral rib pain, left sided neck and upper trapezius pain and aggravation of bilateral lower back pain and upper gluteal pain with severity since the motor vehicle accident."
Under the heading 'Diagnosis and Causation' the Assessor stated (Ex A, 112): "He reports an increase in back pain symptoms progressively from the accident and confirms that this was reported to his general practioner and physiotherapist. His physiotherapist records an increase in lower back pain symptoms within four days of the accident and treatment was administered for this increase in lower back pain. There is also documentation of increased lower back pain by his general practitioner several weeks after the accident. There was then the development of an acute right-sided L5/S1 disc protrusion causing S1 nerve root compression representing an extension of pre-accident on imaging at L5/S1 with larger disc protrusion seen on the post-accident imaging. Therefore, it is probable that Mr Cornwall experienced aggravation of L5/S1 discopathy from the motor vehicle accident, noting the mechanism of the accident which involved sufficient force to cause injury to the lumbar spine, particularly in the second phase of the accident when his vehicle was struck whilst accessing the passenger side of his vehicle. The subsequent extension of the disc protrusion on or about 6 February 2015 represents an extension of the aggravation of the underlying pathology and is also causally related to the motor vehicle accident. There has been a consequential retirement for three surgical operations, culminating in fusion at the L5/S1 level. There has been full recovery from his early complains of neck, chest and right shoulder pain. The undisplaced hairline fracture of the T1 transverse process does not attract an additional impairment rating."
The Assessor subsequently found the plaintiff to have a 25% whole person impairment ("WPI") caused by the motor accident (Ex A, 114).

Review of the Assessor's decision

On 24 September 2017, the insurer lodged an application for review of the Assessor's Medical Assessment Certificate (Ex A, 117).
On 2 January 2018, the Proper Officer of the State Insurance Regulatory Authority ("SIRA") decided that there was reasonable cause to suspect a material error in the medical assessment and referred the matter to an Appeal Panel for review (Ex A, 137). At the time s 63(3) of the MAC Act provided: "The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer 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."
On 25 January 2018, following a teleconference the Review Panel contacted the plaintiff requesting the following additional information (Ex A, 140): "Complete clinical records of Dr Pope, both before and after the accident Clinical records of any treating rheumatologists, both before and after the accident Clinical records of any treating neurosurgeons, both before and after the accident Photos of damage to any vehicle involved in the motor vehicle accident."
On 2 February 2018, the solicitor for the plaintiff responded via email attaching the clinical notes of Dr Raoul Pope and the clinical notes of Associate Professor Al Muderis (Ex A, 142).

The Appeal Panel decision

On 26 April 2018, the Appeal Panel revoked the Assessor's Certificate and substituted its own view in accordance with s 64(4) of the MAC Act and issued a certificate (Ex A, 145).
Under the heading 'Panel Deliberations' the Appeal Panel stated in relation to the lumbar spine (Ex A, 149): "Overall, the Panel does not accept evidence to indicate the contribution of the soft tissue injury to the low back consequential upon the subject MVA was more than a negligible contributor to the underlying well-documented back disorder, which has led to the need for an eventual spinal fusion Consequently, although the Panel does accept causation of a soft tissue injury to the lower back resulting from the subject MVA. However, the Panel has determined that this soft tissue injury resolved and that the current impairment of the lumbar spine is related to the progression of the pre-existing spinal discogenic disease and the subsequent surgery. It is not medically feasible or explicable for a minor soft tissue injury of the lumbar spine without evidence of fracture or other significant injury to cause ongoing symptoms and the requirement for surgery. Therefore the Panel concluded that the current impairment was due to a preexisting condition and therefore should not be assessed (Permanent Impairment Guidelines, Chapter 1.35, page 6)."
The result was that the Appeal Panel found the plaintiff had suffered 0% WPI as a result of the accident.
On 28 March 2019, the Appeal Panel's Certificate was set aside by Schmidt J in Cornwall v Allianz [2019] NSWSC 324. In this decision, Her Honour stated at [47], [60]-[61] and [72]-[73]: "[47] It follows that Mr Cornwall's case, that the Panel erred in its assessment of the accident circumstances, must be accepted. The Panel was obliged by Guideline 1.9 to consider whether the second collision, which ended with him falling to the ground, was more than a negligible contributing cause of the impairment of his lumbar spine. This it failed to do. … [60] In coming to its own opinions, the Panel had to consider all of these matters, as well as Assessor Home's opinions and the reasons on which they were based It also had to disclose the actual path of reasoning by which it arrived at its finally different conclusion. [61] This, I am satisfied, it failed to do. … [72] To the contrary, having concluded that the accident had caused the injuries which the Panel identified, it was not open to it to proceed on the basis that they were simply "not relevant" to its assessment of whether those injuries had contributed to the impairment of Mr Cornwall's spine. After all, that was the issue which it was called upon to resolve. [73] Nor was the level of Mr Cornwall's impairment caused by his pre-existing injuries, that is the impairment he was suffering before the collisions, or any impairment caused by the surgeries which he had to have after the collisions, only of "academic interest", as the insurer also contended. They were rather both a part of what the Review Panel necessarily had to consider, in accordance with Guideline 1.35, in resolving whether or not the collisions had also contributed to Mr Cornwall's impairment, by more than a negligible amount."

The second Appeal Panel

The matter was remitted to the Proper Officer to be determined according to law. On 5 August 2019, an Appeal Panel ("the second Appeal Panel") issued a further certificate (Ex A, 207).
Under the heading 'This Review Panel noted the following documentation' the second Appeal Panel stated (Ex A, 218): "Physiotherapy correspondence dated 7 March 2015 of Ms Trudi Crapp referred to the motor accident a few days before with right sided neck pain toward the shoulder, right mid lateral rib pain, left neck/upper trapezial pain and aggravated bilateral low back pain with upper gluteal pain. There were various physiotherapy consultations in January 2015. … The lower back was especially painful on 23 January 2015. The first mention of the right leg is on 3 February 2015 when there is numbness reported with shooting/burning pain. On 6 February 2015 there was pain in the right side of the lower back into the buttock and mid-high with problems weight bearing and collapse of the right leg. … MRI Lumbar spine 20/2/12 demonstrated PL disc extrusion into the right L5-S1 lateral recess with compression of right S1 root and inflammatory change. There were also L45 DJD changes. Physiotherapy correspondence of Ms Trudi Crapp dated 6/2/15 noted acute onset of severe right leg pain earlier that day being unable to weight bear, with burning sensation affecting the sole of foot. … The neurosurgical correspondence of Dr Jonathan Parkinson dated 10/3/15 was noted. In the motor accident there had been lateral flexion dorsal force transmitted to the lumbar spine. There had been a T1 fracture. There was low back pain and then right leg pain developing over a few days. … The orthopaedic medicolegal report of Dr Peter Giblin 25 January 2016 was noted. Dr Giblin noted the subject near end accident complicated by further rear-end impact. There were back symptoms afterwards, and then a month later, he developed right leg pain and it worsened. … He deemed 20% WPI from which he deducted 1/10 for pre-existing condition with residual 18% WPI due to the motor accident. … The neurosurgical medicolegal report of Dr Balsam Darwish 23/5/16 was noted. ... Since the accident, he had developed neck pain and low back pain with radiation to the right leg. … He deemed 25% WPI for the lumbar spine. … Dr Peter Giblin on 1/12/16 noted that he had responded well to SCS in April 2016 with redo in June 2016 because the wires had moved. … His conclusion regarding WPI was unchanged (18%). … GP records from Cherrybrook Medical Centre were noted. ... There had been a motor accident on 18/6/2013. On 12/3/2014 there was sore hips and back pain on and off. On 9/12/2014 there had been back pain for over a year. There had been bilateral hip arthroscopy. He was on Targin and pain medications. He was seeing a spinal specialist Dr Pope and Dr Al Muderis, hip specialist. By 30/12/14 bone scan showed no focal uptake. There was symmetrical mild increase at the SIJ. There were symptoms in the back upper and lower. At the upper back, there were symptoms in interscapular area and in the lower back across the sacroiliac area. … On 7/1/15 there was tenderness below C7 and the right chest wall was mildly tender. He was still having low back pain - tailbone area from before. Family members were positive for HLAB27. … On 24/1/15 there was lower lumbar spine sacral midline and paravertebral tenderness. Physiotherapy and pain management would continue. … By 31/1/15 the neck was less sore and the right upper and lower back pain was still present with tossing and turning at night. X-rays of the LS spine and SI regions were normal. On 7/2/15 there was reference to right low back pain two days ago although on 6/215 he stood up from bed being unable to weight bear on right leg. … The Panel considered all of the available evidence, deciding that the available information indicated a pre-existing WPI of the lumbar spine of either DREI (0%) or else DREII (5%). The Panel noted that the claimant's main complaints predating the subject motor accident were of law back pain, with episodic leg pain, involving the left posterior thigh not below the knee. ... The Panel thought there was no doubt that he had exacerbated the lower back condition given the mechanism of the motor accident… … The Panel noted however that the onset of right lower limb pain did not occur until four weeks after the subject motor accident. Imaging at the time demonstrated a right-sided L5-S1 disc protrusion. The Panel decided that a re-examination of the claimant was necessary to clarify the trajectory of lower back symptoms from before the motor accident through early February 2015 when he developed severe right-sided scaitica making it difficult for him to weight bear through the right leg. … The same evening, the entire body started to ache, as though he had been "beaten around." He saw his GP the next day, to complain of neck, back and right shoulder pain being referred for x-rays and scans. … For the first few weeks after there was neck and right shoulder pain predominating, as well as his pre-existing low back pain (which the GP in records noted was in the same location as symptoms predating the subject 2015 motor accident). ... As the neck, upper back and right shoulder pain settled down (to the present occasional ache), he noted ongoing lower back pain, a little worse than that predating the accident. In addition, he thought he low back pain after the 2015 motor accident extended a little further up the back toward the lower thoracic spine. However, he clearly told the Panel examiners that right leg pain did not develop until four weeks after the accident. There was no specific incident inducing the right leg pain - he simply woke up one morning to go to the bathroom, when there was an onset of severe right lower limp pain extending from the right buttock, along the posterior thigh and calf into the heel and sole of the foot."
Under the heading 'C. Panel Deliberations', the second Appeal Panel relevantly stated (Ex A, 226): "Injuries: The Panel having noted the specific mechanism of the accident including the events occurring whilst leaning into vehicle, found there had been soft tissue injuries of the neck and lower back due to the subject accident. … In subsequent consultations on 5/1/15, 7/1/15, and 12/1/15 there is mostly reference to neck and upper back pain… … The low back is mentioned again on 7/1/15 and the right shoulder is noted on 12/1/15. On 17/1/15 there was still soreness of the right shoulder and upper back. The lower back is mentioned again on 24/1/15, and on 31/1/15 both the lower back and upper back especially right-sided symptoms are mentioned. On 7/2/15, a month after the motor accident, right leg pain is mentioned for the first time. … The Panel also noted the content of the GP records indicating that the claimant had been suffering from low back pain (without leg pain) … The Panel determined that the claimant had sustained a soft tissue injury of the lower back from the motor accident, the effects of which had resolved. Essentially, the claimant had chronic low back pain before the motor accident (for which he had been taking Targin in December 2014), upon which symptoms in the neck, upper back and right shoulder superimposed after the accident. The available information dictates that the symptoms in the neck, right shoulder and upper back abated, whereas there were persistent symptoms in the lower back after the motor accident, similar to those which had preceded the subject motor accident. There was no sign of right lower limb symptoms until four weeks after the subject motor accident, and given the temporal delay, the Panel found no relationship between the delayed onset of right leg symptoms secondary to disc prolapse and the subject motor accident. Had the right-side disc prolapse been caused by the motor accident, there would have been right-sided leg symptoms with increased low back pain within a few days of the motor accident, which was not the case here."
Under the heading '4. Panel Decision' The second Appeal Panel made the following findings (Ex A, 227): "The Review Panel found that the accident WAS a cause of the following claimed injuries: • Cervical spine-soft tissue injury The Review Panel found that the accident was NOT a cause of the following claimed injuries: • Right-sided SI radiculopathy due to L5-S1 disc prolapse requiring lumbar spine decompression and later, lumbar fusion The Review Panel found that the following injuries were found resolved and give rise to no assessable impairment: • Lumbar spine-soft tissue injury The Panel found the following injuries Not listed by the Parties but caused by the subject accident: • T1 transverse process fracture - undisplaced, resolved As noted, there would be 0% WP1 for this injury according to AMA4 and the MAAS PIG June 2018 The Review Panel considered that the following injuries give rise to a permanent impairment: • Cervical spine - soft tissue injury"
Following these findings, the Second Appeal Panel assessed the plaintiff's injuries at 0% WPI (Ex A, 227).

The Proper Officer's decision

On 7 October 2020, the plaintiff made an application under s 62(1)(a) of the MAC Act for further assessment (Ex A, 229).
In support of his application, the plaintiff relied on the reports of Dr Dawish (dated 5 March 2020 and 14 July 2020), the reports of Dr Giblin (dated 31 March 2020 and 12 May 2020), the reports of Dr Parkinson (dated 13 July 2020) and the report of Ben Reidy (5 May 2020).
On 15 February 2021, the Proper Officer delivered her determination of the plaintiff's application for further Medical Assessment (Ex A, 32):
The Proper Officer summarised and set out both party's submissions in her reasons. She summarsied the decision of the second Appeal Panel. The relevant portions record at [15]-[23] (Ex A, 35): "[15] The Panel states that it considered that the available information indicated a pre-existing WPI of the lumbar spine of either DRE I (0%) or else DRE II (10%). It notes that the claimant's main complaints pre-dating the accident were of lower back pain with episodic leg pain involving the left posterior thigh not below the knee. It notes that the claimant had scans in 2011 and 2021 and seen a Neurosurgeon for symptoms arising from degenerate L4-5 and L5-S1 discs but that at the time of the accident there was no clean evidence of radiculopathy. [16] The panel state that there was no doubt that the claimant had exacerbated the lower back condition given the mechanism of injury, however, it noted that the onset of right lower limb pain did not occur until four weeks after the subject motor accident. It decided that re-examination was necessary to clarify the trajectory of lower back symptoms from before the motor accident through to early February 2015, when he developed severe right side sciatica. … [19] The Assessors note that the claimant had ongoing low back pain, a little worse than pre-dating the accident, and that he thought low back pain after the accident extended a little further up the back "towards the lower thoracic spine. The Panel state: "However, he clearly told the Panel examiners that right leg pain did not develop until four weeks after the accident There was no specific incident inducing the right leg pain - he simply woke up one morning to go to the bathroom, when there was onset of severe right lower limb pain extending from the right buttock, along the posterior thigh and calf into the heel and sole of the foot." [22] The Panel concluded that the claimant sustained a soft tissue injury of the lower back from the motor accident, the effects of which had resolved and that the accident was NOT a cause of "right-sided SI radiculopathy due to L5-S1 disc prolapse requiring lumbar spine decompression and later, lumbar fusion " [23] They found that the claimant had undergone L5-S1 fusion for reasons not due to the motor accident noting that the claimant had chronic low back pain prior to the accident for which he had been taking analgesics in December 2014 and that symptoms of persisting lower back pain after the accident were similar to those which had preceded the accident. They placed significance on the fact that there was no sign of right lower limb symptoms until four weeks after the accident, concluding: "Given the temporal delay, the Panel found no relationship between the delayed onset of right leg symptoms secondary to disc prolapse and the subject motor accident. Had the right-sided disc prolapse been caused by the motor accident, there would have been right-sided leg symptoms with increased low back pain within a few days of the motor accident, which was not the case here."
Then the Proper Officer turned her attention to the contents of the reports of Drs Darwish, Giblin, Parkinson and Reidy. In her reasons, she relevantly recorded at [26]-[50] (Ex A, 38): "Reports of Dr Darwish … [26] The report dated 14 July 2020 is a one page supplementary report. Dr Darwish states: In response to your question, most of [the claimant's] symptoms developed after the first motor vehicle accident on 3 January 2015. As a result of this accident, he required initial right L5/S1 discectomy in April without improvement and L5/S1 laminectomy, discectomy and fusion in July 2015. He also required insertion of spinal cord stimulator in 2016. The second accident caused aggravation of his symptoms but did not lead to any surgery and the x-ray showed no fractures. In my opinion, 95% of the symptoms and the impairment was caused by the first motor vehicle accident. The second motor vehicle accident is responsible for 5% of his current symptoms. These are all approximations. [27] The claimant submits the reports of Dr Darwish provide additional relevant information in relation to the aggravation of his low back and upper gluteal pain, felt within days of the accident. I note that the reports appear to provide an update of Dr Darwish's opinion of his current symptomology and the contribution of the second accident to that symptomology, however, even if I accepted that the reports provide addition information about 'the injury', I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the previous assessment. [28] It is clear from the reasoning of the Panel that one of the significant factors leading to its conclusion that the subject accident was not a cause of "right-sided SI radiculopathy due to L5-S1 disc prolapse requiring lumbar spine decompression and later, lumbar fusion" was the claimant's pre-existing symptomatic low back pain and the fact that leg pain did not develop until four weeks after the accident. There appears to be nothing in the reports from Dr Darwish that I consider such as to be capable of having any effect on the outcome of that assessment. … [29] Whilst I note that Dr Darwish attributes the need for surgery to the subject accident in his supplementary report, this opinion had clearly been put to the Panel for consideration via a prior report from Dr Darwish as well as in other medical reports that were considered by the Panel. Dr Darwish appears to provide little reasoning in this supplementary report to support his conclusion and it is not evident that his conclusion is based on any findings, history or the like which differ to those that previously expressed and considered by the Panel or which would add to the cogency of reasons supporting this view. [30] It is also not evident to me from the face of the report or the submissions that the report has the capacity to effect the Panel's finding that the soft tissue injury to the lumbar spine, which they found had been caused by the accident, had resolved. [31] I am therefore not satisfied that the reports from Dr Darwish are additional relevant information such as to be capable of having a material effect on the assessment of the lumbar spine injury. … Reports from Dr Giblin … [33] I note that Dr Giblin attributes the need for lumbar spine surgery and resulting impairment to the subject accident, finds that this injury is DRE category 4 and assesses 20% WPI. He states: Further to my previous report, and in reply to your letter 1 May 2020 my records indicate that the motor vehicle accident 3 January 2015 was associated with soft tissue symptoms in the neck and lower back and shortly thereafter, pain in the right leg. This caused him to have three operations in 2015, the later one being an instrumented L5/S1 fusion. [35] For the same reasons as outlined above, even if I accept that the reports provide additional relevant information about the injury, I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment of the lumbar spine. [36] Whilst I note that Dr Giblin attributes the need for surgery to the subject accident in his supplementary report, this opinion had clearly been put to the Panel for consideration. Dr Giblin appears to provide little reasoning in this supplementary report to support his conclusion, appearing to refer to records relied upon in previous reports and not adding anything additional. It is not evident that his conclusion is based on any findings, history or the like which differ to those that previously expressed and considered by the Panel or which would add to the cogency of reasons supporting this view. [37] Similarly, whilst I acknowledge that Dr Giblin assesses WPI arising from the lumbar spine injury sustained in the subject accident at 20%, this is an assessment which was put in other medical reports that were considered by the Panel. I also note that the assessment of DRE category IV is essentially based on the fact of the claimant undergoing the surgeries in 2015 and 2016 which the Panel found not to be causally related to the subject accident. [38] It is also not evident to me from the face of the report or the submissions that the report has the capacity to effect the Panel's finding that the soft tissue injury to the lumbar spine, which they found had been caused by the accident, had resolved. [39] I am not satisfied that the reports from Dr Giblin are additional relevant information such as to be capable of having a material effect on the assessment of the lumbar spine injury. … Report of Dr Parkinson dated 13 July 2020 [41] Whilst I acknowledge that Dr Parkinson finds that "the temporal association between the accident and symptom development strongly suggests a causative connection". However, this was in response to a question where Dr Parkinson was asked: Having assumed that there was an aggravation of low back pain with upper gluteal pain felt within days of the subject motor vehicle accident on 3 January 2015, requiring treatment between the time of the accident and 3 February 2015, does that make it more probable than not that the development of disc protrusion and nerve root impingement resulting surgery was caused by the motor vehicle accident on 3 January 2015. [42] I consider that this assumption, which appears to underpin Dr Parkinson's opinion, is at odds with the claimant's report to the Panel that the right leg pain extending into the buttock did not develop until four weeks after the accident, when he awoke with such pain after no specific incident. [43] Again, whilst I note that Dr Parkinson opines in this report that the subject accident responded in L5/S1 disc herniation, this was an opinion that was put to the Panel in various medical reports and was an issue which was addressed by the Panel at length in their reasoning. [44] It is also not evident to me from the face of the report or the submissions, that the report has the capacity to effect the Panel's finding that the soft tissue injury to the lumbar spine, which they found had been caused by the accident, had resolved. [45] I am not satisfied that the report from Dr Parkinson is additional relevant information such as to be capable of having a material effect on the assessment of the lumbar spine injury. … Radiological report of Dr Reidy dated 5 May 2020 … [50] Whilst I acknowledge that the report may be additional relevant information as it post-dates the assessment and may indicate the presence of new symptomology, in particular left side radiculopathy, which was not present at the time of assessment, Dr Reidy does not suggest the cause of such symptomology, in particular there appears to be nothing on the face of the report that supports that this 'new' left sided symptomology is causally related to the subject accident. Therefore, I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment of the assessment."
The Proper Officer was not satisfied that there was a deterioration of the injury or additional relevant information about the injury such as to be capable of having a material effect on the outcome of the previous assessment. The application for further medical assessment was refused.
The essential question in this appeal is whether the Proper Officer misconstrued the precondition to a referral of a medical dispute for further assessment under s 62(1) of the MAC Act on the ground of additional relevant information as qualified by s 62(1A).

Relevant legislation

The relevant provisions of the MAC Act are as follows: 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. (3), (4) (Repealed) 61 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) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) (Repealed) … 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the "proper officer of the Authority"). … 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part 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 only be made on the grounds that the assessment was incorrect in a material respect. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer 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. …

The legal principles

Both parties referred to Jubb v Insurance Australia Limited [2016] NSWCA 153 ("Jubb") and AAI Ltd t/a AAMI v Chan [2021] NSWCA 19 ("Chan").
In Jubb, at [54], [55], [60] and [80], Gleeson JA (with whom Meagher JA and Emmett AJA agreed) stated: "A. Construction of s 62(1A) - "additional relevant information" [54] Counsel for the appellant identified the additional information relied on by the insurer in the clinical notes of Ms Ozturk as relating to the "issues" of the appellant's general mental state, relationship with his children, therapy, self-harm, and suicidal ideation. The additional information in the Rush worth statement was identified as relating to the "issue" of the appellant's work performance. Counsel for the appellant properly acknowledged that in each case the information was "relevant information" to the assessment of the degree of permanent impairment of the appellant caused by the motor accident. It was not in dispute that the information relied on by the insurer as "additional", addressed "issues" that had already been considered by Dr Baker in his assessment on 9 August 2013. [55] On the appellant's proposed construction of s62(1A), the phrase "additional relevant information" is to be read down as excluding information concerning issues which have already been considered by the previous medical assessor. This constraint is required, the appellant argued, "otherwise there could be recurrent applications for reassessment … and there must be some limit placed on that". … [60] The first is that it ignores the clear language of s 62, including the phrase "referred again". The ordinary meaning of the word "additional" is "supplementary". In the context of s 62(1)(a) and subs (1A), the phrase "additional relevant information", as used in s 62, refers to information which is additional to that which was before the medical assessor when the previous medical assessment was carried out: Miles v Motor Accident Authority of NSW[2013] NSWSC 927 (Miles) at [34] (Hoeben CJ at CL). That the information relied on as being "additional", relates to the "same issue" as considered by the previous medical assessor, is not inconsistent with the ordinary meaning of "additional" when used in the phrase "additional relevant information". As Hoeben CJ at CL observed in Miles(at [34]): "[35] The comparison is between information which was before the medical assessor when the previous medical assessment took place and information which is additional to that which is of such a character that it is capable of changing the outcome of the previous medical assessment if it were placed before the medical assessor." … [80] Secondly, the premise of the second proposition in Singh (No 2) seems to be that a further medical opinion cannot constitute "additional information" unless it is based on a change in the claimant's underlying symptoms and circumstances. The correctness of that premise may be doubted. It would seem to conflate the separate grounds referred to in s 62(1)(a) of "deterioration of the injury" and "additional relevant information". For the latter ground, it is the character of the information as additional and relevant which is to be evaluated by the proper officer when forming the opinion or state of satisfaction required by s 62(1A). A further medical opinion based on the same material as was available at the time of the earlier assessment may, depending on the cogency of reasons for the opinion expressed, constitute additional information. So much seems to have been accepted by Meagher JA in Henderson v QBE Insurance at [106]."
In Chan, Leeming JA (with whom Gleeson JA agreed) stated at [16]-[22], [68]-[70], [72], [74]-[75] and [79]: "[16] It will be seen that the bases on which there may be a referral for further medical assessment by a party (as opposed to by a court or claims assessor) are limited to the two grounds in s 62(1)(a): deterioration of the injury or additional relevant information about the injury. In the present case, only the latter was relevant. It will also be seen that where an application is based on either or both of the two grounds in s 62(1)(a), the first step is to determine whether the prohibition in s 62(1A) requires the application for further assessment to be dismissed. [17] Section 62 has given rise to a deal of law, in part because a number of important aspects of the section are matters of implication. It is convenient to note the following immediately. [18] First, in accordance with what was said in Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228, it was accepted that the reports of A/Prof Haber and Dr Porteous were "additional relevant information" for the purposes of s 62. That is to say, notwithstanding that the "issue" of whether the motor vehicle accident caused the injury to Dr Chan's shoulder was well and truly alive at the earlier assessments, the further reports were not precluded from constituting "additional relevant information" for the purposes of s 62(1A) on that basis. Jubb disapproved earlier reasoning to that effect. Of course, that was not an end to the operation of the prohibition in s 62(1A). The insurer had made it plain that while it accepted what had been held in Jubb, nonetheless, the July 2019 opinions on which Dr Chan now placed reliance were not capable of having a material effect on the outcome of Dr Chan's previous assessment. [19] Secondly, although s 62(1) is expressed in the passive and s 62(1A) is a prohibition, the section impliedly confers power on the proper officer to refer the matter for medical assessment, but only if the precondition in s 62(1A) is satisfied. [20] Thirdly, the prohibition in s 62(1A) turns on whether the proper officer has formed an opinion as to whether the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. That is so despite the absence of any reference in s 62 to the proper officer being of an "opinion" or being "satisfied" or any other language explicitly referring to the proper officer's state of mind (contrast s 63, which performs a similar role, and which explicitly asks whether the proper officer "is satisfied" of certain things). Ultimately, this isa question of statutory construction, which warrants some elaboration. [21] Statutory powers are often qualified by preconditions. A recurring question of construction in any such case is whether the precondition is satisfied (a) by the fact or, alternatively (b) by an opinion held by the donee of the power as to that fact. As a matter of general principle, "the mere fact that a requirement is objectively expressed, rather than by reference to the satisfaction of the officer or tribunal concerned, is not decisive of the construction issue": Coordinated Construction Co Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [44]. Notoriously, the question of construction can itself give rise to considerable difficulty and be a matter upon which reasonable minds can differ, as Spigelman CJ observed in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [9]. But the question is important, because compliance with the precondition is essential in order to avoid transgressing upon the limits of the power conferred by the statute. [22] It is established in respect of s 62(1A), despite the absence of any explicit reference to the opinion of the proper officer, as opposed to the fact, as to the additional relevant information being capable of having a material effect on the outcome of the previous assessment, that nonetheless the prohibition in s 62(1A) turns on the proper officer's opinion. The authorities in this Court are collected by Gleeson JA in Jubb v Insurance Australia Ltd at [33]. No challenge to this was made by the parties. … [68] The reformulations of the statutory text in the dispositive paragraphs [16] and [17] of the reasons of the primary judge ("prospect", "possibility", "unlikely", "incapable" and "potential") may have distracted from the task identified in QBE Insurance (Australia) Ltd v Miller. That task was (a) to identify whether the proper officer held the opinion required by the section that the additional information "is such as to be capable of having a material effect on the outcome of the previous assessment" and (b) if so, whether that opinion was properly formed. [69] It is clear from what the proper officer said at [18] and [31] that she held an opinion that the prohibition in s 62(1A) required the application to be dismissed. The question on an application for judicial review was not whether that opinion was right or wrong. It was whether it was properly formed, or else was vitiated by reviewable error. [70] Whether or not additional relevant information is capable of having a material effect on the outcome of a previous assessment depends upon the reasons for the previous assessment and the nature of the additional information. If the additional information, for example, contains a new opinion hitherto unconsidered as to the mechanism of injury, then that would be a factor pointing towards its being capable of having a material effect on the outcome of the previous assessment. If on the other hand the additional information substantially overlaps with material already considered by an assessor or a panel, then that would point against its being capable of having a material effect on the outcome. However, in either case this is a question of fact. It is well removed from any question of law. … [72] The proper officer asked herself the question posed by the statute: were the reports of A/Prof Haber and Dr Porteous such as to be capable of having a material effect on the outcome of the previous assessment? In order to answer that question, it is not a fair reading of her reasons to say that the proper officer merely concluded that the new reports were not based on new findings and information. She did much more than that. The proper officer summarised the reasoning of the panel which had confirmed Dr Kenna's assessment, and summarised the essence of each of the new reports of A/Prof Haber and Dr Porteous. It was not contended that any aspect of her summary was other than fair. The proper officer explicitly noted that in each case there was a difference in the opinions as to causation. But read fairly, the proper officer was saying that the very matters advanced by A/Prof Haber and Dr Porteous had already been considered, and rejected, by the panel. That led to her conclusion that they were not capable of changing the outcome of the previous assessment. … [74] However, it would be wrong for the judicial review to proceed on the basis of that paragraph as if it were taken in isolation, and it would be wrong for this appeal to turn on the presence of the word "therefore". The proper officer's reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error: cf Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36]. If the effect of the decision is as Dr Chan contends, then most of its paragraphs are otiose. [75] Although paragraph 31 is infelicitously expressed, when it is read in context it is to be understood as summarising the previous reasoning, which was to the effect that the matters now raised by A/Prof Haber and Dr Porteous had already been considered by the panel, such that the proper officer did not consider that they were capable of changing the outcome of the previous assessment. … [79] In his written submissions, Dr Chan alternatively characterised the decision of the proper officer as a constructive failure to exercise jurisdiction, by failing to evaluate a relevant matter, namely, the weight or probative value of the opinions of A/Prof Haber and Dr Porteous. I disagree. I think that the proper officer was asking herself what effect the new opinions would have, given the reasoning process which had rejected the claim that the motor vehicle accident had caused injury to Dr Chan's shoulder."

Judicial ground (1): The Proper Officer committed error of law on the face of the record: 1. In that she construed the requirement in s 64 of the MAC Act relating to the expression "additional relevant information" incorrectly and contrary to the Court of Appeal's decision in Chan because Dr Darwish and Dr Giblin's opinions were additional. 2. In that she failed to recognise Dr Darwish provided 2 additional pieces of relevant information: 1. Symptoms developed after the motor accident. 2. 95% of the plaintiff's symptoms and impairment were due to the accident. 1. In that she failed to give reasons: 1. For not considering the information in [(b)(i)] above additional relevant information. 2. For not considering the information in [(b)(n)] above additional relevant information 1. By applying the wrong test of materiality, namely embarking upon an analysis to determine whether the additional information would as opposed to could lead to a relevantly different outcome 2. In failing to engage with the difference between the oral history and the clinical picture

Judicial ground (2): The Proper Officer committed jurisdictional error 1. By failing to determine that Dr Darwish and Dr Giblin's opinions were additional and relevant information and enlivened the Proper Officer's power to refer the matter for further assessment; 2. By engaging in a process of determining what weight to give to the additional information; 3. By failing to consider whether Dr Darwish's report was capable of having a material effect on the outcome of the previous assessment; 4. By failing to consider whether Dr Giblin's report was capable of having a material effect on the outcome of the previous assessment.

As noted in the insurer's submissions, the plaintiff's submissions do not follow the grounds set out in the amended summons and instead addressed both grounds of judicial review together. Hence it is difficult to dissect them into the separate grounds of judicial review as the defendant has done. I will adopt the same approach as the plaintiff, summarising the submissions of the parties followed by my resolution.

The plaintiff's submissions

The plaintiff contended that the principle issue raised is one of causation - was the condition of the plaintiff's spine which necessitated multiple surgical treatments caused or contributed to by the motor accident?
The plaintiff submitted that he failed before the second Appeal Panel because it was not satisfied of the causal connection between these matters, the resulting impairment and the motor accident. However, the fact that an issue had been a live one determined by an Appeal Panel no longer precludes new evidence on the topic from being characterised as additional: see Chan at [18].
The plaintiff acknowledged the nature of the Proper Officer's decision is that of a gatekeeper but submitted that the Proper Officer's satisfaction as to whether additional information is capable of altering the result is subjective: see Rodger v De Gelder [2011] NSWCA 97. The plaintiff submitted that the Proper Officer's "satisfaction", or lack of it, must be arrived at legally.
Further, the Proper Officer's decision must be attended by error falling within the constraints of judicial review, being either error of law on the face of the record or jurisdictional error. The face of the record extends to the Proper Officer's reasons: See Supreme Court Act 1970 (NSW) s 69(4).
The plaintiff contended that the Proper Officer fell into both forms of error. In the plaintiff's submission, she misdirected herself as to the test which the new medical evidence needed to meet, thereby committing legal error on the face of the record, and she failed to consider whether the evidence was capable of leading to a different outcome.

The Decision of the Proper Officer

The plaintiff noted that the history given to the second Appeal Panel was provided 4¼ years after the motor vehicle accident and the immediate post-accident period. The plaintiff submitted that this was the time during which the pattern and nature of symptoms was critical and the best evidence of what was occurring at that time is the clinical record of treatment of the plaintiff coupled with expert analysis by a medical practitioner.
With regards to the Proper Officer's decision at [26] and [29], the plaintiff submitted that the reasoning adverts to Dr Darwish's view that the need for surgery arose from the accident and concludes "this opinion" had been put to the Second Appeal Panel. The plaintiff contended that the opinion could not have been put to the Appeal Panel as it had not been expressed. The plaintiff submitted that as made clear in Chan, the fact that the argument or point was put does not mean that Dr Darwish's evidence on the issue is not additional relevant information. It follows, in the plaintiff's submission, that the Proper Officer was in error by holding that the opinion was not additional. That is an error of law on the face of the record.
The plaintiff contended that this also constitutes jurisdictional error, in combination with the analysis which follows, because the preconditions to the exercise of the Proper Officer's power to refer for further assessment were present and should have been exercised. The Proper Officer erred in failing to enter upon the jurisdiction he had to refer the matter. It was also submitted that the reasoning fails to deal with 2 other aspects of the doctor's view: symptoms developed after the subject motor vehicle accident, and 95% of the symptoms and impairment were due to that accident. The Proper Officer does not say that either of these opinion or propositions had been put before the second Appeal Panel.
The plaintiff submitted that this is an error of law in that the Proper Officer has, either, not considered relevant material when answering the question as to "additional relevant information" or has failed to disclose her reasoning so as to enable one to understand the actual process of reasoning in which he engaged to get to his conclusion. In the face of the decision in Chan, such a clear-cut expression of an additional opinion would require some exposed analysis for it to be rejected (if it was).
Further, it is submitted by the plaintiff that in the concluding sentence at [29] of her decision, the Proper Officer exceeds her mandate and falls into jurisdictional error. There, the Proper Officer criticises the asserted lack of exposition by Dr Darwish of a basis for his views and thereby acts as if he constitutes the decision-making entity. The plaintiff submitted that it is not for the Proper Officer to weigh the evidence except at the threshold to determine if it is capable of affecting the outcome. To determine, effectively, that it lacks weight because of paucity of reasoning usurps the medical function of the second Appeal Panel. The Proper Officer is not exercising any medical function in determining an application under s 62 of the MAC Act.
The plaintiff submitted that the scheme of the MAC Act and its interpretation involves recognition that the resolution of medical issues is left to Assessors and Medical Panels, they being qualified medical practitioners. When one medico uses a medical term or expresses a medical opinion another medical person is able to evaluate the idea advanced by the term by drawing on professional qualifications. They are permitted to apply their learning to evaluate what is being said. The Proper Officer is not. The plaintiff submitted that it is not for the Proper Officer to decide that a medical opinion lacks sufficient explanation of its scientific or other basis. Rather, the Proper Officer's role is to take the opinion at face value and determine whether it could impact on the assessment.
The plaintiff contends that the Proper Officer fell into jurisdictional error by engaging in a critique of the weight to be given to Dr Darwish's opinion because it went beyond the question posed for his satisfaction, namely, whether the information was capable of materially affecting the assessment.
In support of this submission, the plaintiff noted that Dr Darwish reported having an MRI dated 20 February 2015. He noted the plaintiff had seen Dr Pope in 2012 who treated him conservatively and from which the plaintiff made a good recovery maintaining full time employment. Dr Giblin said the plaintiff had a DRE 4 category injury "in terms of the motor vehicle accident" amount to 20% WPI.
The plaintiff submitted that in coming to an opinion as to whether the new material was capable of materially altering the assessment, it was incumbent on the Proper Officer to compare the characterisation of the clinical record as propounded in the new material with the approach of the Appeal Panel whereby determinative significance was given to the recollections of the plaintiff without reference to the contemporaneous clinical records. It should be apparent, the plaintiff submitted, that using the clinical evidence and judgments is a permissible, if not desirable, means of evaluating causation. Approaching the issue in that way could lead to no other conclusion that that Dr Darwish's opinion was capable of relevantly changing the result. His failure to do so was a failure by him to exercise the jurisdiction placed in him to evaluate the potential impact of the substance of the new material on an Assessor.
The plaintiff drew attention to where the Proper Officer extracted from the Certificate: "He clearly told the Panel examiners that right leg pain did not develop until 4 weeks after the accident".
The Appeal Panel had been unable to identify any specific triggering event when taking the history recorded. In paragraph [22] of the Reasons the Proper Officer identifies the critical conclusion of the Appeal Panel, namely: "The Claimant sustained a soft tissue injury of the lower back from the motor accident, the effects of which have resolved and that the accident was NOT a cause of "right sided S1 radiculopathy due to L5/S1 disc prolapse requiring lumbar spine decompression and later lumbar fusion".
The plaintiff submitted that as paragraph [20] of the Proper Officer's Reasons reveals the first bout of decompression surgery occurred as shortly after the accident as 2 April 2015. By combination of paragraphs [19], [20] and [22] it is apparent that the critical issue is the nature and extent of symptoms between 3 January 2015 and 2 April 2015. All subsequent analysis is no more than repetition of the Appeal Panel's decision.
The plaintiff submitted that by failing to compare the history identified and analysed by Dr Darwish with what the Proper Officer, correctly, saw as the determinative basis for the Appeal Panel's conclusion as to causation (the plaintiff's memory) the Proper Officer failed to deal with the basis on which the plaintiff was contending the new material had the capacity to change the outcome.
From [25] the Proper Officer recounts one of the pieces of additional evidence or information, namely the reports of Dr Darwish dated 5 March 2020 and a supplementary report dated 14 July 2020.
The plaintiff notes that in Dr Darwish's report of 5 March 2020 the following relevant information appears: 1. An MRI scan performed on 20 February 2015 showed a right L5/S1 posterolateral (protrusion) compressing the right S1 nerve root (emphasis added); 2. A CT scan of 5 January 2015 showed a fracture of the transverse process of T1; 3. According to the doctor: "(The Plaintiff) developed right sciatica secondary to right L5/S1 disc protrusion compressing the right S1 nerve root for which he underwent 2 simple discectomies in April 2015 and L5/S1 laminectomy, discectomy and fusion in July 2015". 1. The plaintiff made a good recovery from back pain experienced in 2012 for which he saw Dr Pope including his maintaining full time employment as a mechanic.
The plaintiff further noted that as the Proper Officer says at [28] of her Reasons, one of the significant factors leading to the Appeal Panel's conclusion "was the Claimant's pre-existing symptomatic low back pain and the fact that leg pain did not develop until 4 weeks after the accident".
The plaintiff submitted that the Proper Officer erroneously stated that there is nothing in Dr Darwish's report which is capable of having any effect on the outcome of that assessment. It was submitted that whether one accepts it or not, Dr Darwish's analysis of the factual material has led him to state that the position is the opposite of that which the Appeal Panel found. Therefore, the Proper Officer must be wrong to say that the opinion he expresses is incapable of having an effect on that assessment. It may be that the opinion does not persuade or otherwise cause the Appeal Panel to doubt the decision to which it had earlier come but that does not mean it is incapable of doing so.
The plaintiff drew attention to paragraph [29] of the Proper Officer's decision, where she says that Dr Darwish provides little reasoning for his opinion and identifies as significant the absence, as the Proper Officer conceives it, of the conclusion being based on history. The plaintiff submitted that too is a misdirection as to the force of the evidence, which is clearly based on the history. The same errors are perpetrated in relation to Dr Giblin's opinion: see [35] of the Proper Officer's Reasons.
The plaintiff submitted that the problem is exacerbated by consideration of [41] and [42] of the Proper Officer's Reasons. The question ultimately is whether the assumption Dr Parkinson was asked to make is one which the material bears out. This must be irrespective of whether the plaintiff gave an accurate or reliable history concerning the onset of pain. It is unavoidably the case that the contemporaneous records prepared when reviewing the plaintiff are likely to be a far more accurate account of events. Therefore, if the assumption italicised and bolded in paragraph [41] of the Reasons given by the Proper Officer is one which the clinical records support then, self-evidently, it has the capacity to affect the assessment.

The insurer's submissions

The insurer submitted the substance of the plaintiff's position is an argument as to the merits of the Proper Officer's decision as it alleges that a different decision should have been reached. The insurer submitted that this does not constitute grounds for judicial review. The determination was a matter for the subjective satisfaction of the Proper Officer, and absent one of the narrow type of errors being present as outlined in the authorities referred to earlier, the decision is not subject to challenge.

Judicial Ground (1) - Error on the face of the record

The insurer submitted that, with regards to Judicial Ground (1)(a), the plaintiff complains that the Proper Officer has incorrectly interpreted what 'additional' means in the context of the statutory test in section 62(1)(a), and that this has affected the consideration of the reports of Dr Darwish and Dr Giblin.
The insurer drew attention to where the plaintiff says at [19] of their submissions: "The reasoning adverts to Dr Darwish's view that the need for surgery arose from the accident and concludes "this opinion" had been put to the Panel. The opinion could not have been put to the Panel as it had not been expressed."
The insurer submitted that this submission misconceives the decision in Chan. If a doctor expresses an opinion that has previously been expressed by a different doctor, that may constitute additional relevant information, but it does not necessarily constitute such. In fact, this may "point against its being capable of having a material effect on the outcome": see Chan at [68]).
It is not the case that, as the plaintiff says at [20]: "It follows the Proper Officer was in error by holding that the opinion was not additional. That is an error of law on the face of the record." As the Court of Appeal indicated Chan, if there is an error in this respect, it is an error of fact rather than an error of law, and it is not amenable to judicial review.
The insurer noted that at [22] of his submissions, the plaintiff contends that the Proper Officer did not deal with Dr Darwish's view that symptoms developed after the subject motor accident and that 95% of the symptoms and impairment were due to the accident. However, the Proper Officer does deal with this, at [28] of the decision, where she states that a significant factor in the second Appeal panel's decision was that the relevant pain did not commence until 4 weeks after the accident. The Proper Officer says that there is nothing in Dr Darwish's report that would be capable of having any effect on the outcome of that assessment. This responded to the question that the Proper Officer had to ask herself which was whether Dr Darwish's report (including his opinion as to causation) was additional relevant information that was capable of having a material effect on the outcome of the previous assessment.
The insurer drew attention to where the plaintiff's submissions say at [30] that "it was incumbent on the Proper Officer to compare the characterisation of the clinical record as propounded in the new material with the approach of the Panel whereby determinative significance was given to the recollections of the plaintiff without reference to the contemporaneous clinical records" and then at [34]-[36] refer to Dr Darwish. However, in the insurer' submission, Dr Darwish has nothing to say about the timing of the onset of symptoms, except to say that it was "after" the subject motor accident. On the basis of this evidence, the insurer submitted that it cannot be said that it was not open to the Proper Officer to find as she did, that the evidence was not capable of changing the second Appeal Panel's determination that rested significantly on the finding that there was a delayed onset of pain for 4 weeks after the accident.
The insurer submitted that at [40] and [41] of the plaintiff's submissions the same errors are perpetrated in relation to the consideration given to Dr Giblin and Dr Parkinson. However, Dr Giblin and Dr Parkinson also have nothing to say about the timing of the onset of pain, except Dr Parkinson who (as the Proper Officer noted) was asked to make an assumption.
Next, the insurer notes that the plaintiff says at [41] that "if the assumption italicised and bolded in paragraph 41 of the Reasons given by the Proper Officer is one which the clinical records support then, self-evidently, it has the capacity to affect the assessment." However, the insurer submitted that the clinical records that the plaintiff relied on were already before the second Appeal Panel and specifically referred to by them and did not form part of the new material relied upon in the application for further assessment.
In the insurer's submission, even if the Proper Officer had erred in relation to the consideration of "additional", it would be immaterial to the decision because the Proper Officer's decision does not turn on whether Dr Darwish and Dr Giblin were "additional". Rather, the Proper Officer determined to her own subjective satisfaction, that the reports could not be capable of having a material effect on the previous assessment.
The insurer notes that the Proper Officer relevantly states at [27] of her decision: "… however, even if I accepted that the reports provide addition information about 'the injury', I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the previous assessment."
Further, the Proper Officer then states at [35], in relation to Dr Giblin's report: "… even if I accept that the reports provide additional relevant information about the injury, I am not satisfied that the additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment of the lumbar spine."
The insurer referred to Hossain v Minister for Immigration and Border Protection [2018] HCA 34 and MZAPC v minister for Immigration and Border Protection [2021] HCA 17 and submitted that even if there were error in the approach of the Proper Officer as to whether the material was or was not additional, the argument is moot because, ultimately, the Proper Officer lawfully satisfied herself that the material would not be capable of having a material effect on the outcome of the previous assessment.
With regards to Judicial Ground 1(b), the insurer submitted that the Proper Officer considered the reports of Dr Darwish and considered the submissions of the plaintiff as summarised at [11] of the decision. While there was some consideration as to whether or not the material referred to in this ground was in fact additional relevant material this consideration was moot point. The Proper Officer explains that she was not satisfied that the material was capable of having a material effect on the previous assessment. Ultimately, the Proper Officer has asked herself the correct legal questions and applied the correct statutory test throughout.
The insurer submitted that it is clear from the ordinary wording in the reasons that the Proper Officer was cognisant of the statutory framework of the empowering provision and made her determination in accordance with both Chan and s 62 of the MAC Act. Ultimately the material was considered and the application was rejected on the primary basis of materiality. If that threshold is not met then whether or not the material is additional is irrelevant, because of the prohibition in s 62 of the MAC Act.
In the insurer's submission this path of reasoning discloses no error as outlined in Chan at [78].
In relation to Judicial Ground 1(c), the insurer submitted that the Proper Officer has been clear in her reasons in declining the application. There is no requirement to respond to every sentence submitted by the applicant, as long as the substance of the application is addressed. The Proper Officer has done this and her reasons are plainly set out. To require further explanation of the Proper Officer's reasons would be requiring a standard above that which is required of an administrative decision maker. The Proper Officer is entitled to a beneficial construction, read fairly and as a whole.
The insurer submitted that the decision did not turn on the question of whether the material was additional relevant information. The Proper Officer considered that the material was not capable of having an effect on the outcome of the previous assessment, thereby rendering a final determination on the question of whether the material was "additional relevant information" otiose. There was no requirement to give further reasons on that redundant point, and even if there was, it could not be material to the outcome of the decision, given that it was decided on other grounds.
With regards to Judicial Ground (1)(d), the insurer submitted that it is the plaintiff's contention that the Proper Officer has applied the incorrect legal test of materiality. However, this is demonstrably not the case in either form or substance. The Proper Officer states the correct test at [10], [11], [27], [28], [31], [32], [35], [39], [40], [40], [45], [46], [50], [51] and [52] and appears to apply the correct test throughout the decision. The plaintiff does not substantiate how it is said that the Proper Officer applied a test of "would" rather than "could".

Judicial Ground (2) - Jurisdictional error

The insurer submitted that Judicial Ground 2(a) is, in effect, a reframing of the above grounds. There is no error in the findings of the Proper Officer. There was no legal requirement to make such a finding. All that was required of the Proper Officer was an evaluation of the application to determine a base level of satisfaction, and this was a matter of subjective satisfaction for the Proper Officer. If that satisfaction was not met, then the Proper Officer was required to reject the application. The Proper Officer has done so here.
In relation to Judicial Grounds (2)(b), the insurer submitted that it is the plaintiff's contention that the Proper Officer has fallen to jurisdictional error in engaging in a process of weighing the information that was said by the plaintiff to be additional or relevant. The test required to be applied by the Proper Officer required evaluation and subjective satisfaction. When read fairly and as a whole, it is apparent that the Proper Officer is simply making an evaluation of the application by considering whether Dr Darwish's report would meet the threshold of capacity to have a material effect on the outcome of the second Appeal Panel's assessment.
The insurer noted that the plaintiff specifically takes issue with the Proper Officer's reasons at [29], where the Proper Officer states that Dr Darwish appears to provide little reasoning in this supplementary report to support his conclusion and it is not evident that his conclusion is based on any findings.
The insurer submitted that, read in its proper context, it is clear that the Proper Officer is not overstepping her jurisdictional limit. The Proper Officer makes an assessment and asks prudent questions in applying the lawful test of materiality. In fact, Chan supports this very kind of evaluation. Furthermore, when read as a whole (as is required) it is clear that the Proper Officer considered that Dr Darwish's opinion did not satisfy the test because it had already been put to the second Appeal Panel for consideration in earlier reports (including an earlier report of Dr Darwish himself). The final sentence at [29] simply elaborates as to why the allegedly "additional" opinion is not in fact additional.
The insurer contends that it must be within the scope of the Proper Officer's role to be able to consider whether a further report that expresses the same opinion as previous reports actually contains anything of substance to differentiate it from the previous reports. Otherwise, any further report that expresses an opinion would mandate a referral for further assessment. This is directly at odds with the authorities. The Proper Officer had a statutory function to perform, and that required her to be satisfied that the material relied upon by the plaintiff was capable of having a material effect on the outcome of the previous assessment. The evaluative process that she engaged in was within the bounds of her jurisdiction.
In relation to both Grounds 2(c) and 2(d), the insurer submitted that the Proper Officer has been clear in her reasons. She plainly considers whether the reports of Dr Darwish and Dr Giblin are capable of having a material effect on the outcome of the previous assessment, and explains why, in her opinion, they do not satisfy that threshold.

Resolution

Despite being expressed in two different Grounds of Judicial Review, the plaintiff's challenge to the decision of the Proper Officer involves the consideration of one issue. That is, did the Proper Officer incorrectly exercise her discretion under s 62(1) of the MAC Act in refusing the plaintiff's application for further assessment.
The leading authority with regards to s 62(1) and s 62(1A) of the MAC Act is the recent Court of Appeal decision in Chan. The relevant passages of which are set out earlier in this judgment. Here it was held that the threshold question for the Proper Officer is whether the additional reports are such as to be capable of having a material effect on the outcome of the previous assessment. Only if she formed the opinion that they were, was the prohibition in s 62(1A) of the MAC Act inapplicable. If she did form that opinion, then it would be necessary to exercise a discretion under s 62(1) of the MAC Act.
The prohibition in s 62(1A) of the MAC Act turns on whether the Proper Officer has formed an 'opinion' as to whether the additional information is such as to be capable of having a material effect on the outcome of the previous assessment. It is established that in respect of s 62(1A) of the MAC Act, despite the absence of any explicit reference to the opinion of the Proper Officer, as opposed to the fact that the additional relevant information is capable of having a material effect on the outcome of the previous assessment, that nonetheless the prohibition in s 62(1A) of the MAC Act turns on the Proper Officer's opinion: See Jubb at [33] where Gleeson JA collects the authorities regarding this principle.
Whether or not additional relevant information is capable of having a material effect on the outcome of a previous assessment depends upon the reasons for the previous assessment and the nature of the additional information. For example, if the additional information contains a new opinion as to the mechanism of injury, then that would be a factor pointing towards its being capable of having a material effect on the outcome of the previous assessment. If on the other hand the additional information substantially overlaps with material already considered by an assessor or an Appeal Panel, then that would point against its being capable of having a material effect on the outcome. However, in either case this is a question of fact.
The task for this Court on review is confined to whether the opinion has been properly formed according to law. The issue is not whether the Proper Officer was right or wrong to hold the opinion: See Chan at [28]. The issue is whether the opinion has been shown to be vitiated on administrative law grounds. That might be because it is based on a misconstruction of the legislation, because it paid regard to something that is prohibited by statute, or because it was "irrational, illogical and not based on findings or inferences of fact supported by logical grounds": See QBE Insurance v Miller [2013] NSWCA 442 at [36]. With regards to the reasons of the Proper Officer, it is to be borne in mind that the Proper Officer is not necessarily as qualified as a legal practitioner or a medical practitioner, and the brief written reasons which accompany the decision are not to be construed as if they were reasons for the judgment of a court: See Chan at [29].
Turning to the Proper Officer's decision, there would be judicially reviewable error if the Proper Officer had merely confined her inquiry to whether the reports were not based on new findings or information not available to the previous assessors. In accordance with the decision of Jubb, the additional reports are not precluded from being considered 'additional new information' for the purposes of s 62 simply because the issues discussed in the reports were alive at the previous assessment. As stated above, that is not the question posed by s 62(1A). However, in my view, that is not what she did. The Proper Officer went further and asked precisely the question posed by statute - were the new reports capable of having a material effect on the outcome of the previous assessment?
In answering this question, the Proper Officer firstly summarised the evidentiary documentation that was before the second Appeal Panel. She then summarised the reasoning of the second Appeal Panel at [22] of her decision, stating that the second Appeal Panel concluded that the plaintiff sustained a soft tissue injury of the lower back from the motor accident, the effects of which had resolved and that the accident was not a cause of the right-sided SI radiculopathy due to L5-S1 disc prolapse requiring lumbar spine decompression and later, lumbar fusion. She further stated at [23] that symptoms of persisting lower back pain after the accident were similar to those which had preceded the accident. The Proper Officer identified that a significant factor in the second Appeal Panel's theory of causation was the finding that there was no clinical evidence of right lower limb symptoms until four weeks after the accident.
With regards to the reports of Dr Darwish, the Proper Officer firstly summarised the report noting Dr Darwish's theory of causation and specifically that he had opined that "symptoms developed after the first motor vehicle accident" and that "95% of the symptoms and the impairment was caused by the first motor vehicle accident." The Proper Officer considered that even if she considered the reports of Dr Darwish to be 'new information' she was not satisfied that the information was capable of having a material effect on the previous assessment. She stated that a key aspect of the second Appeal Panel's determination was the plaintiff's pre-existing symptomatic low back pain and the fact that leg pain did not develop until four weeks after the accident. She stated that there appeared to be nothing in the reports from Dr Darwish that she considered such as to be capable of having any effect on the outcome of those findings made by the second Appeal Panel.
With regards to the report of Dr Giblin, the Proper Officer summarised the report of Dr Giblin and opined again that even if she accepted that the reports provided additional relevant information about the injury, she was not satisfied that the additional relevant information was such as to be capable of having a material effect on the outcome of the previous assessment of the lumbar spine. In the Proper Officer's view, the information on which Dr Giblin relied in his supplementary report had already been considered by the second Appeal Panel and there was little reasoning to support his conclusion.
With regards to the report of Dr Parkinson, the Proper Officer summarised the report. She noted that despite Dr Parkinson stating that the temporal association between the accident and symptom development strongly suggests a causative connection, this view was based upon a number of assumptions which were at odds with the information provided by the plaintiff to the second Appeal Panel and not supported by further information. For this reason, she found that the report of Dr Parkinson was not capable of materially affecting the decision of the second Appeal Panel.
It is clear that lack of contemporaneous documentation of complaints regarding the right lower limb until four weeks after the accident was a significant factor in the second Appeal Panel's determination that the injuries sustained by the plaintiff were not caused by the motor vehicle accident. While the additional reports of Dr Darwish, Dr Giblin and Dr Parkinson do provide further support to the theory of causation put forward by the plaintiff, the information referred to by these additional reports, notably the physiotherapist report of Ms Crapp, had already been before the second Appeal Panel. Furthermore, the additional reports did not substantiate any arguments dispensing the second Appeal Panel's theory of causation involving the lack of contemporaneous complaints regarding the plaintiff's right lower limb during the four-week period after the accident. In my view, it was open to the Proper Officer to form the opinion that the additional material adduced was not capable of materially affecting the decision of the second Appeal Panel.
The plaintiff submitted that the Proper Officer exceeded her jurisdictional limit by criticising the lack of reasoning provided in Dr Darwish's report. I do not accept this submission. In order to properly form an opinion as to whether the reports were 'new relevant information', in accordance with s 62(1A) the Proper Officer must evaluate whether the new information is capable of materially affecting the outcome of the previous assessment: See Chan at [25]. In doing so, it must be within the scope of the Proper Officer's jurisdiction to provide reasons as to why they have formed such an opinion. As stated above these 'brief reasons' are not to be construed as if they were reasons for the judgment of the court. In my view, this ground of judicial review in reality seeks to argue the merits of the Proper Officer's decision and fails to disclose any error of law.
The Proper Officer applied the correct statutory test set out in s 62 of the MAC Act and described in Chan and when doing so and did not overstep her jurisdictional limit. The plaintiff has failed to establish error on the face of the record, or jurisdictional error on behalf of the Proper Officer.

Result

The result is that the Proper Officer's decision was not vitiated by error on the face of the record or jurisdictional error. Both Judicial Grounds of Review (1) and (2) fail.

Costs

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

The Court orders: 1. The amended summons filed 28 May 2021 is dismissed. 2. The plaintiff is to pay the first defendant's costs on an ordinary basis.

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: 05 May 2022

See Supreme Court Act 1970(NSW)s 69(4).

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Cases Cited (15)