Dagher v IAG Limited t/as NRMA Insurance

Background

1. On 1 September 2016, the plaintiff was injured in a motor vehicle accident in New South Wales ("the subject accident"). The plaintiff's brother, who was driving the vehicle in which the plaintiff was a passenger, lost consciousness when his airway was obstructed by a lozenge. The plaintiff attempted to steer the vehicle from the passenger seat, but lost control and collided with another vehicle and a concrete wall. The plaintiff lodged a claim for personal injury damages with SIRA against the insurer pursuant to Part 4.4 of the MAC Act.
2. Section 131 of the MAC Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. As there was a dispute between the parties as to the plaintiff's degree of permanent impairment, the dispute was referred to a medical assessor of SIRA for assessment.
3. On 17 January 2018, Dr James Bodel ("the Medical Assessor") issued a certificate pursuant to s 61(1) of the MAC Act in which he determined that the plaintiff's injuries to his left shoulder and neck gave rise to a permanent impairment which was greater than 10%.
4. In his reasons, the Medical Assessor indicated that the plaintiff had told him that he had been involved in another "very minor" motor vehicle accident in December 2018 "which did not cause him any injury". The Medical Assessor found there to be significant deterioration in the plaintiff's condition since the previous assessment by another doctor, Dr Wilding, but was satisfied that there was a direct causal link between this deterioration and the subject accident. The Medical Assessor assessed the plaintiff as having an 8% permanent impairment for his left upper extremity and a 15% permanent impairment for his cervical spine.
5. The Proper Officer of SIRA referred Dr Bodel's assessment to the Review Panel pursuant to s 63 of the MAC Act.
6. On 6 March 2020, the Review Panel revoked the Medical Assessor's certificate and issued a new certificate pursuant to s 63(4) of the MAC Act. The Review Panel's certificate stated that the plaintiff's injuries gave rise to a whole person impairment which was not greater than 10%.
7. The plaintiff says that there are a number of jurisdictional errors and/or errors of law on the face of the record in the Review Panel's decision. Alternatively, he claims that in making its decision, the Review Panel failed to exercise its statutory power.

The statutory framework

1. The following provisions of the MAC Act are relevant to these proceedings.
2. Sections 57 to 58, 60 to 63, and 131 of the MAC Act read: "Part 3.4 Medical assessment 57 Definitions In this Part: medical assessment matters means any of the matters referred to in section 58. medical assessor means a person appointed under this Part to make an assessment under this Part. medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part. medical dispute means a disagreement or issue to which this Part applies. 57A Motor Accidents Medical Assessment Service (1) The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Medical Assessment Service. (2) The Service is to consist of medical assessors and such members of staff of the Authority as the Authority determines. 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. … 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) (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter. (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. … 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). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency. 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. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (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. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. … Part 5.3 Damages for non-economic loss 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%."

The relevant Guidelines

1. Under s 133(2) of the MAC Act, the assessment of the degree of permanent impairment is to be made in accordance with the Motor Accidents Medical Guidelines or the fourth edition of the American Medical Association Guides ("the AMA4").
2. The Medical Assessment Guidelines, effective 1 October 2018, dictate the obligations of the Medical Assessor and Review Panel in these proceedings.
3. Clauses 12.1 and 12.3 of the Medical Assessment Guidelines read: "12.1 Whenever a party submits physical copies of documents and other material (including videotape, CD, DVD, electronic image or file, film or photographs) in support of an application or reply, the party lodging the material must have already provided a copy of the material to each other party to the dispute. … 12.3 An officer of MAS, or any Assessor is not to take into consideration any documentation or information that has not been provided to the other party, except as provided in this chapter."
4. Clause 12.9 of the Medical Assessment Guidelines concerns radiological scans. It reads: "12.9 Irrespective of whether they have been provided to the other party, a MAS Assessor may take into consideration any such radiological scans and their accompanying reports that are taken to the examination, and: 12.9.1 where these documents have not previously been included in the documentation supporting the application or reply exchanged by the parties, the MAS Assessor will list those documents in their certificate and will attach a copy of all such reports to their certificate; and 12.9.2 the party in possession of those scans shall make those scans available to the other party to inspect on request."
5. Clause 16.10 of the Medical Assessment Guidelines states that in Chapter 12, "Documentation and other supporting material" applies to any documentation or material in support of an application for review or reply to an application.
6. Finally, cl 16.61 of the Medical Assessment Guidelines relevantly reads: "16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; … 16.21.3 determine whether additional information is required in order to make a decision…"
7. SIRA has also issued Motor Accident Permanent Impairment Guidelines ("the Permanent Impairment Guidelines") for assessing the degree of permanent impairment arising from motor accident injuries. The edition of the Permanent Impairment Guidelines relevant to these proceedings was issued in 2018.
8. In Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 ("Boyce") the Court of Appeal held that a failure to comply with the Permanent Impairment Guidelines can constitute a constructive failure to exercise jurisdiction: see Boyce at [9], [14] to [22], [41], [44], [49] to [51], [66] per Basten JA (Macfarlan JA agreeing) and at [108] per Sackville AJA.
9. Clause 1.1 of the Permanent Impairment Guidelines states: "1.1 These Motor Accident Permanent Impairment Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with Section 133(2)(a) of the Motor Accidents Compensation Act 1999 (NSW) (the Act).
10. Clause 1.41 of the Permanent Impairment Guidelines reads: "Consistency … 1.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness." (My emphasis)
11. Finally, cll 1.43 to 1.44 read: "Additional investigations 1.43 The injured person who is being assessed should attend with radiological and medical imaging. It is not appropriate for a medical assessor to order additional investigations such as further spinal imaging. 1.44 There are some circumstances where testing is required as part of the impairment assessment; for example, respiratory; cardiovascular; ophthalmology; and ear, nose and throat (ENT). In these cases, it is appropriate to conduct the prescribed tests as part of the assessment."

The Medical Assessor's decision

1. On 22 May 2019, the Medical Assessor assessed the plaintiff. On 13 June 2019, he issued his further certificate and reasons (CB 33).
2. The Medical Assessor noted that the injuries to be assessed included a fracture of the left clavicle and soft tissue injury to the left shoulder, as well as a cervical spine soft tissue injury without radiculopathy (CB 34). It is the assessment of the injury to the cervical spine which is the subject of this judicial review.
3. Under the heading "History as Given by the Injured Person", the Medical Assessor relevantly stated (CB 35): "[The plaintiff] reports that at the time of the accident, he had no health issues and in particular no issues with the neck, left shoulder or arm. I note that Dr Wilding has recorded that he 'denied any history of problems with the cervical spine prior to the motor accident'. At the time of Dr Wilding's original assessment, he was not requested to assess the cervical spine and therefore he did not assess that area."
4. Under the heading "History of the Motor Accident", the Medical Assessor relevantly stated that after the accident (CB 36): "[The plaintiff] indicates that he could not open the door of the vehicle. The rescue staff removed the 'B' pillars and the four doors to remove all of the passengers. Mr Dagher was taken by ambulance to the Royal Prince Alfred Hospital. He was 'screaming in pain' and complaining of an immediate onset of chest pain, neck, left shoulder and arm pain."
5. In considering the history of symptoms and treatment following the accident, the Medical Assessor noted that the plaintiff had been consulted by Dr Jeffrey Brennan, who recommended surgery on the cervical spine (CB 37).
6. In his "Findings on Clinical Examination", the Medical Assessor opined that the "[t]here is no spinal deformity but [the plaintiff's] neck is stiff." In considering the injury to the cervical spine, the Medical Assessor stated (CB 38): "[The plaintiff] has tenderness in the trapezius muscles at the base of the neck on the left side and reduced range of neck flexion, extension and rotation in all directions and this is most restricted on rotation to the right. He therefore has asymmetry of movement and dysmetria… There are therefore clinical signs of radiculopathy in the left arm principally involving the C7 nerve root but possibly also C5/6."
7. Under the heading "Review of Documentation", the Medical Assessor relevantly noted (CB 40): "MRI Scan - cervical spine - 08.02.2017: The MRI scan shows some minor changes at C5/6 and minor degenerative changes at C6/7 but the large disc prolapse seen more recently in the films from 03.09.2018 is not present in those films. [The plaintiff] gives no history of any additional accident or injury. … MRI Scan - cervical spine - 03.09.2018: The MRI scan shows a large left sided disc prolapse at the C6/7 level with nerve root compromise and some degenerative change with osteophyte formation at C5/6."
8. Both the 2016 MRI and the 2018 MRI were made after the subject accident.
9. In summarising the relevant additional documentation, the Medical Assessor continued (CB 41): "The additional documentation, since the previous assessment includes submissions from the insurer that there is indication of a claim for deterioration in both the cervical spine and the left shoulder since the original assessment. It is determined that such deterioration may alter the outcome of the previous assessment. The accompanying documentation includes the report of the MRI scan of the cervical spine showing the disc pathology at C5/6 and C6/7 to which I have referred. I have seen these films and I agree with that interpretation. There is also the MRI scan of the cervical spine from 03.09.2018 which shows the change in the appearance from 19.09.2016 in that there is now a moderate sized posteriolateral disc osteophyte complex at C5/6 and a large left sided disc prolapse at C6/7 which is consistent with my observations. The MRI scan of the left shoulder also shows that there is impingement association with tendonitis and bursitis particular insertional tendonitis into the greater tuberosity."
10. The Medical Assessor relevantly concluded (CB 42): "[The plaintiff] has suffered a disc injury in the cervical spine at C5/6 and C6/7. In the early MRI scans, there is definite disc pathology confirmed at both levels at the time of the original accident and the original assessment. Clearly there has been a significant deterioration in the MRI scan and clinical findings seen here today since the previous assessment by Dr Wilding. There is no history of any additional accident or injury that has led to this change in symptoms although the MRI scan certainly has deteriorated in the cervical spine. I am satisfied that without the history of any additional accident or injury subsequent to the motor vehicle accident which is under review there is a direct causal link between this deterioration and his original motor vehicle accident."
11. The Medical Assessor noted that although the parties had not listed radiculopathy in their submissions for the further application for assessment, "[c]linically there is radiculopathy in the left upper limb" (CB 42).
12. The Medical Assessor determined that the plaintiff had a DRE cervicothoracic category III level of assessable impairment in accordance with the description in Table 73 of page 3/110 of the AMA4. He stated that there are clinical signs of radiculopathy in the left upper limb involving primarily the C7 nerve root on the left side. The Medical Assessor assessed the impairment to the cervical spine as attracting a permanent impairment rating of 15% (CB 43-44).
13. At the Medical Assessor also assessed the plaintiff's injury to his left shoulder as attracting a rating of 8%, the total level of impairment was over the 10% statutory threshold for damages.

The assessment on review

1. On 18 February 2020, the Review Panel, comprising of assessors Margaret Gibson, occupational medicine specialist; Neil Berry, general surgeon; and Andrew Dixon, orthopaedic surgeon, conducted its review at the request of the Proper Officer.
2. In addition to the material before the Medical Assessor, the Review Panel considered several documents. Specifically, it requested and furnished an additional radiology report from Assessor John Korber dated 4 December 2019 ("the Korber Report").

The Korber Report

1. Under the heading "Background", Assessor Korber wrote (CB 45): "1. The following radiological and medical imaging: Cervical spine MRI, 19 September 2016 Cervical spine MRI, 3 September 2018 have been referred by the Dispute Resolution Service (DRS) at the request of Margaret Gibson to provide a diagnostic radiology report."
2. Under the heading "Radiological Issues referred for Assessment", Assessor Korber wrote (CB 45): "1. Margaret Gibson has requested my opinion on the following radiological issues: The Panel are seeking review of all available imaging of the cervical spine in this matter in reference to the subject accident. We would also note there was a subsequent accident in December 2018 (not the subject of our assessment). Are the C5/6 and C6/7 disc bulges on CT seen 18 days after [the subject accident] progressed sufficiently to discal extrusion to be consistent with left sided C7 radiculopathy? Was the disc protrusion present at the first set of X-rays?"
3. Having set out the documents considered and relevant history, Assessor Korber relevantly wrote (CB 47): "I viewed the following imaging: CERVICAL SPINE MRI, 19 SEPTEMBER 2016 ... At C6/7 there is normal hydration of the disc. At C6/7 level there is a discovertebral bar. I agree with the report. There is no evidence of disc herniation. There is no encroachment onto intervertrbral forminae. At the C6/7 level the appearances are almost within normal limits. CERVIAL SPINE MRI, 3 SEPTEMBER 2018 … At the C6/7 disc space level there is a huge left sided disc herniation measuring 11 x 17 x 4 mm. This was not present on the previous examination and has occurred since that time… This is a new lesion, and not a progression."

The Review Panel's decision

1. On 6 March 2020, the Review Panel issued its certificate and reasons for its decision.
2. Under the heading "Evidence Considered", the Review Panel stated (CB 56): "The Panel decided that additional information would assist them to make a decision, because there was a subsequent accident and it was also unclear whether or not the abnormalities shown on cervical spine imaging was progression of the subject motor accident related trauma or a separate event".
3. As such, the Review Panel requested more information from the parties, including the Korber Report "addressing the imaging studies of the cervical spine".
4. Under the heading "Additional Evidence", the Review Panel summarised the Korber Report as follows (CB 57): "Radiology Report of Assessor John Korber dated 4 December 2019 Assessor Korber concluded that 'The very large C6/7 disc protrusion was not present on the first MRI dated 19 September 2016. The C6/7 changes are not a progression of a pre-existing lesion. The 2018 lesion is a new lesion not present in 2016 (compare Figures 1 and 2). C5/6 has not significantly altered.'"
5. The Review Panel then turned to deliberate on the plaintiff's impairment. It "noted Assessor Korber had confirmed that the large C6/7 disc extrusion was not evident until 3 September 2018" (CB 57). The Review Panel then stated (CB 58-59): "[The Review Panel] reviewed the additional clinical notes with particular focus on any references to the subsequent accident of December 2018. It was noted that Dr Bodel in his report had noted that Mr Dagher 'states that he was involved in a minor motor vehicle accident in December 2018. He asserts this was a very minor accident which did cause him an injury and caused no damage to the vehicle.' They then turned to the cervical spine assessment and noted that there had been some inconsistency in his statements regarding radiculopathy, whereas under his determination he had clearly referenced clinical signs of radiculopathy and assessed this at 15% and this was consistent with what he expressed on the table. However, on page 1 of his certificate, he found cervical spine soft tissue injury without radiculopathy. The Panel were of the opinion that reviewing the report in a holistic fashion, this was consistent with a typographical error and may be misinterpretation by the assessor whether or not he was able to change the injury definition as listed in the referral letter. Nevertheless, the Panel were mindful of [the Korber Report] which suggested that although there had been disc changes, there was no evidence of disc herniation on the MRI scan of 19 September 2016. (My emphasis) The Panel concluded that the injury sustained in the subject accident was a soft tissue injury and not a disc injury and therefore would not be expected to progress over the intervening two years. Therefore, the radiculopathy was unrelated to the subject accident. Nevertheless, there was clear history of a soft tissue injury to the cervical spine. There are ongoing neck complaints recorded both in the treating doctor documentation and also various independent reports over time. Dr Naresh Verma noted on 19 November 2016 that Mr Dagher was likely to have symptoms for at least 12 months. He diagnosed whiplash associated disorder, rotator cuff injury [to the] left shoulder and fractured left clavicle. There was mild to moderate restriction of neck movements, but he didn't comment on any asymmetry, muscle spasm or guarding. He found no signs of radiculopathy on clinical examination. Dr Clive Sun on 5 April 2017 had concluded the clinical picture was consistent with a cervical spine soft tissue injury without radiculopathy and a left shoulder soft tissue injury. He found 5% WPI for the neck and 8% WPI for the left shoulder. The Panel also noted that Dr Barrett had assessed Mr Dagher on 26 July 2017 on referral from the insurer and he had concluded that there was permanent impairment arising from the subject accident which he assessed at 5% whole person impairment, this being in 2017, so prior to the later MRI scan. Assessor Kalev Wilding on 17 January 2018 he found symmetrical restriction of neck movements without guarding and there were non-radicular sensory complaints in the left upper limb. There was no radiculopathy. After this the claimant made an application for re-assessment, stating his condition had since deteriorated. They referenced the 3 September 2018 [MRI] of neck and left shoulder. Included in this application was a report of Dr Brennan who had examined Mr Dagher and found '...there were no hard neurological findings. There was some pain inhibition and give way weakness but nothing that was reproducible. He had a reasonable range of motion of his neck with no Lhermitte's or Spurling's sign. Reflexes were symmetrical and within normal.' He goes on to comment on the very large C6/7 disc protrusion stating '…clearly the disc protrusion cannot be the cause of all Mr Dagher's pain syndrome as it is a matter of record that he had neck pain and arm pain at a time when the original MRI scan did not show any nerve compression. Clearly therefore the findings on the current scan cannot be the sole cause of his current symptoms.' Therefore the Panel concluded that there were two conditions. There was the soft tissue injury arising from the subject accident which was permanent at the time of Assessor Wilding's assessment and gave rise to 0% whole person impairment, and there was a second condition being radiculopathy which had arisen at a later date and was unrelated to the accident, and the result of continuing constitutional age related degeneration and was not consistent with cervical trauma as sustained in the accident. As these conditions were unrelated in the Panel s view, therefore deduction was not appropriate."
6. The Review Panel stated that its "findings in relation to the degree of permanent impairment of the injuries caused by the accident" were different from those of the Medical Assessor "because the [Review] Panel's opinion regarding the cause of the radiculopathy was different to that of the original assessor". It noted that although the plaintiff suffered from a soft tissue injury to the cerviothoracic spine, the relevant Guides rate the associated impairment at 0%.
7. The Review Panel accepted the Medical Assessor's assessment of 8% whole person impairment for the left shoulder. This resulted in an assessment of the plaintiff's whole person impairment as being 8%.

Judicial review generally

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

Grounds of judicial review - procedural fairness

1. The plaintiff seeks a judicial review of the Review Panel's decision on the basis that in reaching its decision, the Review Panel called for and took into account the Korber Report. It is the plaintiff's case that Korber Report was material and crucial to the decision, which was adverse to the plaintiff. The Review Panel did not notify the plaintiff that it intended to call for the Korber Report, and he was not provided with an opportunity to make submissions about it or to call further relevant evidence before the Review Panel made its decision. Accordingly, the Review Panel denied the plaintiff procedural fairness or natural justice in making its decision.

The plaintiff's submissions

1. The plaintiff submitted that a Review Panel has an obligation to accord procedural fairness to a claimant: see Frost v Kourouche (2014) 86 NSWLR 214 ("Frost"), at 216 [2] per Basten JA and 222 [31] per Leeming JA (Beazley P and Basten JA agreeing); Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; see also, in respect of an analogous medical panel under Victorian legislation, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 ("Wingfoot") at [47].
2. The dictates of procedural fairness are concerned with avoiding practical injustice: see Allianz Australia Insurance Ltd v Rutland (2015) 73 MVR 211 ("Rutland") at [35]; Frost at 223 [41]. The plaintiff submitted that this may require the Review Panel to draw to the attention of the claimant critical facts upon which it proposes to base a decision to reject or depart from the underlying assessment, and allow him an opportunity to respond: see Rutland at [35]; Frost at [32] and [35].
3. According to the plaintiff, the Korber Report was critical to the Review Panel's reasoning. It was, to use the language of Mason J (as his Honour then was) in Kioa v West (1985) 159 CLR 550 at 587, a "critical issue or factor" on which the Review Panel's assessment turned: see also Frost at [32]. The Review Panel relied on the Korber Report to conclude that the accident did not cause the radiculopathy which the plaintiff developed. That was in circumstances where the plaintiff had told the Medical Assessor that the second motor accident in which he had been involved was very minor, and had not caused him any injury. The Review Panel had determined that a re-examination of the plaintiff was not necessary (Hagley Affidavit, Annexure A, p 5).
4. The plaintiff submitted that he suffered practical injustice as a result of the Review Panel's failure to bring the Korber Report to his attention and to give him an opportunity to respond to it. He was denied an opportunity to adduce evidence in relation to the report, and to make submissions about the weight it was to be given.
5. The plaintiff submitted that this was not a case where the failure to afford procedural fairness served no practical disservice to his cause because there was no further argument to be made or information given: see Rutland at [46]. As Sackville AJA concluded in similar circumstance in Boyce at [134], the plaintiff says that "the procedure adopted by the Review Panel…denied the appellant a fair opportunity to be heard and therefore resulted in practical injustice." The Review Panel's error was jurisdictional. The breach of procedural fairness was material to the Review Panel's decision because "compliance could realistically have resulted in a different decision": see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 ("SZMTA") at [45]; see also QBE Insurance (Australia) Ltd v Meredith (2017) 80 MVR 398 at [64].
6. As Basten JA observed in Boyce at [74], a "judicial assumption that an opportunity to provide further evidence or material could not have affected the outcome is fraught with difficulty". The Court should not engage in the exercise of speculating whether the outcome would or would not have been the same, had the denial of procedural fairness not occurred: see Partridge v IAG Ltd t/as NRMA Insurance (2019) MVR 36; [2019] NSWSC 127 at [43]; Boyce at [74] and [135]; Insurance Australia Group Ltd t/as NRMA Insurance v Saraceni [2020] NSWSC 1045 at [144].

The insurer's submissions

1. The insurer submitted that two primary questions arise from the plaintiff's application for judicial review. The first is whether the Review Panel was required to provide the Korber Report to the parties, and to invite their response, before making its own decision. The second is whether the Korber Report was "material and crucial" to the Review Panel's decision.
2. As to the first issue, the insurer submitted that there is no requirement in the legislation or the Medical Assessment Guidelines for a Review Panel to forward any "additional information" it requests and receives to the parties. While the insurer accepted that the Review Panel was required to extend procedural fairness to both parties, it did not concede that the Review Panel's failure to provide the Korber Report to the parties amounted to a denial of procedural fairness.
3. According to the insurer, the Review Panel was not required to ensure that the parties had access to each and every item of medical evidence in its possession, much less to provide the parties with an opportunity to debate the significance of each item of medical evidence or to adduce other evidence in relation to it. The role of the Review Panel is to form and to give its own opinion, not to decide a dispute or to make up its mind by reference to competing submissions or competing medical opinions: see Wingfoot at [47].
4. As to the second issue, the insurer submitted that even if the Review Panel had provided the Korber Report to the parties before making its own decision, the report was not "material and crucial" to its decision. The Review Panel had a large number of medical reports in its possession. In its reasons, the Review Panel referred to a number of those reports which supported its conclusion that the injury to the cervical spine caused by the accident was, as Dr Wilder had opined, a soft tissue injury which did not cause disc protrusion, nerve root impingement or radiculopathy.
5. The Review Panel accepted that the plaintiff suffered an injury to his cervical spine caused by the accident. The Review Panel noted that neck pain was documented in the ambulance, hospital and GP records. The question for it to determine was the nature of the injury to the cervical spine. The insurer submitted that in its reasons, the Review Panel looked at the whole of the plaintiff's medical history since the accident. That approach was independent of the differences between the 2016 and 2018 MRI scans, and was independent of the Korber Report.
6. In its reasons, the Review Panel referred to the report of Dr Verma dated 19 November 2016, two months after the accident. Dr Verma observed mild to moderate restriction of neck movements, but not asymmetry, muscle spasm, guarding or radiculopathy. Five months later in April 2017, Dr Sun concluded that the clinical picture was consistent with a soft tissue injury to the cervical spine without radiculopathy. The Review Panel also noted that in July 2017, Dr Barrett had found that the plaintiff suffered a soft tissue injury his cervical spine. The Review Panel noted the assessment by Dr Wilding on 17 January 2018, in which he observed symmetrical restriction of neck movements without guarding and with no radiculopathy.
7. In addition to those opinions, the Review Panel noted that the plaintiff's treating neurosurgeon, Dr Brennan, commented on the 2018 MRI scan and the large disc protrusion at C6/7. Dr Brennan said that "clearly the disc protrusion cannot be the cause of all of the plaintiff's pain syndrome, as it is a matter of record that he had neck pain and arm pain at a time when the original [2016] MRI scan did not show any nerve compression". The Review Panel noted in its reasons that Dr Brennan did not believe that the findings on the 2018 MRI scan explain the plaintiff's symptoms; moreover, Dr Brennan did not state that the findings on the 2018 MRI scan were simply a "progression" of the findings on the 2016 scan. Dr Brennan appeared to attribute most of the plaintiff's symptoms to a "pain syndrome". Finally, the Review Panel noted that in his report dated 3 September 2018, Dr Brennan did not identify any "hard neurological findings". He made no finding of radiculopathy.
8. The insurer submitted that in reasons, read as a whole, the Review Panel relied on the Korber Report merely to confirm that the very large disc extrusion at C6/7, and the impingement of the C7 nerve root which produced signs of radiculopathy for the first time, were not present at the time of the 2016 MRI scan. Those differences were apparent from the reports of the two scans by the radiologists who reported on them.
9. The Review Panel was satisfied that there is an explanation for the appearance of the very large disc extrusion at C6/7, and the appearance of radiculopathy in the left upper limb by 2018, where neither was present at the time of the first MRI scan and the assessment by Dr Wilding. As such, the Review Panel considered that the changes shown in the 2018 MRI scan were "the result of continuing constitutional age-related degeneration" which was inconsistent with trauma to the cervical spine caused by the accident.
10. The insurer argued that in the Review Panel's opinion, there were two separate and distinct conditions that had affected the plaintiff's cervical spine since the accident. The first was a soft tissue injury to the cervical spine caused by the accident itself. The fact that this soft tissue injury did not cause any pathology in the cervical spine, cervical discs or cervical cord was demonstrated in the 2016 MRI scan, only 18 days after the accident. It found that there was no evidence in that scan of damage to the cervical spine caused by trauma such as the accident.
11. The second condition identified by the Review Panel, which does give rise to impairment, was radiculopathy caused by continuing constitutional age-related degeneration, which it determined was not of traumatic origin and was completely unrelated to the accident.
12. As such, the insurer submitted that the Review Panel set out its path of reasoning as required, and that the Korber Report was a non­essential part of its analysis. It did no more than confirm what was already evident from the reports of the two MRI scans, which were in the possession of both parties prior to the Medical Assessor's assessment in May 2019. For these reasons, the insurer contended that the plaintiff's summons should be dismissed with costs.

The plaintiff's submissions in reply

1. The plaintiff conceded that in order to establish a breach of procedural fairness which grounds relief, he is required to establish that the alleged breach was material: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29] to [31], [46], [72]; SZMTA at [44] to [46].
2. The plaintiff identified the relevant question as being whether the breach of procedural fairness was material to the Review Panel's decision. This is answered by asking whether there is a realistic possibility that the decision could have been different if the report had been disclosed to the plaintiff so as to allow the plaintiff an opportunity to make submissions about it: see SZMTA at [49].
3. The plaintiff submitted that instead of addressing this question, the insurer invited the Court to engage in impermissible merits review by assessing the medical significance of the Korber Report itself: see De Gelder v Rodger (No 2) (2014) 68 MVR 340 at [31], [36]; Francica v Allianz Australia Insurance Ltd (2014) 71 MVR 537 at [16]-[18]; QBE Insurance (Aust) Ltd v Motor Accidents Authority (NSW) (2013) 63 MVR 470 at [42] to [44], [57] to [58].
4. According to the plaintiff, the Court's task is not to assess the clinical value of the report, or whether its conclusions should have been "obvious" to the Review Panel, but rather to determine whether there is a possibility that the Review Panel's failure to give the plaintiff an opportunity to make submissions about it could have affected the outcome.
5. The insurer also submitted that the Review Panel's role is to give its own opinion on a medical question, not to make up its mind by reference to competing submissions or competing medical opinions. The insurer referred to Wingfoot, where the High Court considered that the function of a Victorian Review Panel was "neither arbitral nor adjudicative" and that its function was to "form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise" ([47]). Importantly, however, the plaintiff submitted that the Court also observed in the same passage that that Review Panel "is doubtless obliged to observe procedural fairness" to give parties an opportunity to supply relevant material to it and to make submissions. In other words, the Review Panel's function of using its own expertise to determine a medical question does not obviate or diminish the requirements of procedural fairness.
6. The plaintiff also referred to two further cases. The first was Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 ("Briggs"), which was handed down after the plaintiff filed its primary submissions, but referred to at the hearing of these proceedings (T 2.32-50; T 15.15-16.30). In Briggs, which concerned the more recent iteration of the legislation relevant to this case, the Review Panel had relied upon an article which it did not disclose to the parties when reaching its conclusion. The insurer made similar submissions to those made in these proceedings that the article was not a "critical factor" in the panel's findings on causation ([47]). The Court disagreed, holding at [58] that the use of the article was a denial of procedural fairness to the plaintiff. Her Honour relied on the decision of Button J in Pascoe v Mechita Pty Ltd [2019] NSWSC 454 at [70] in finding that the Review Panel had used the article to draw an important adverse conclusion about the plaintiff's case without notice to the parties.
7. The plaintiff also referred to Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW (2010) 56 MVR 108 ("Associated Motor Insurers"), which concerned a challenge by the insurer to a claims assessor's assessment of damages. In Associated Motor Insurers, the assessment was set aside for denial of natural justice because the assessor accessed and used Wikipedia in his reasons without notice to the parties.
8. As to the insurer's submissions that the relevant guidelines do not require a Review Panel to forward additional information it requests and receives to the parties, the plaintiff submitted that statement requires significant qualification.
9. The plaintiff submitted that it is apparent from the provisions of the Medical Assessment Guidelines that both parties are generally to be provided with all the material before an assessor or a review panel. A party is required to provide a document to the other party before lodging it, and an assessor (or review panel) is not to take into consideration any documentation that has not been provided to the other party, except as provided in Chapter 12: see Medical Assessment Guidelines, cll 12.1, 12.3, and 16.10. The plaintiff noted that there is express provision in cl 12.9 for an assessor to take into consideration radiological scans taken to an examination irrespective of whether they have been provided to the other party, but no other exceptions to the general rule.
10. The plaintiff submitted that on at least on one construction of the Medical Assessment Guidelines, cll 12.3 and 16.10 prohibit the Review Panel from taking into account documentation and information which has not been provided to both parties.
11. The insurer submitted that the Review Panel was "entitled" to request additional information under cl 16.21.3 of the Medical Assessment Guidelines, including by arranging for Dr Korber to provide an opinion. Clause 16.21.3 provides that the Review Panel is to determine whether additional information is required to make a decision. However, that clause says nothing about obtaining a further report without notice to the parties and then relying on it in significant respects. The plaintiff submitted that the better reading of the guidelines, as a whole, is that the Review Panel is required, as a matter of procedural fairness, to take into account only documentation and information which has been provided to both parties.
12. Further, the plaintiff submitted that the Permanent Impairment Guidelines evince a similar intention that all documentation is to be provided to both of the parties. Those Guidelines contemplate that a medical assessor will review and evaluate "all the available evidence": see cll 1.17 and 1.18.1. Clauses 1.43 and 1.44 of the Permanent Impairment Guidelines also address additional investigations and have been set out earlier in this judgment.
13. The plaintiff submitted that the Permanent Impairment Guidelines contemplate that additional investigations are generally not appropriate, but that testing may be done where it is required. However, there are other indications in the Permanent Impairment Guidelines that the Medical Assessor and/or Review Panel are to bring to the claimant's attention matters it proposes to take into account, so that the claimant may respond.
14. As such, the plaintiff submitted that the Permanent Impairment Guidelines and the Medical Assessment Guidelines are informed by the requirements of procedural fairness and the need for an injured person to have an opportunity to respond to adverse information. The plaintiff says that his case is analogous to the situation contemplated in cl 1.41 of the Permanent Impairment Guidelines, where it is expressly stated that the injured person must have an opportunity to "respond to the inconsistent observations to ensure accuracy and procedural fairness."
15. As to the materiality of the breach, the plaintiff submitted that there is a realistic possibility that the Review Panel's breach of procedural fairness could have made a difference to its decision. The insurer seeks to argue that the Korber Report was not important to the Review Panel, because it "had a large number of medical reports in its possession to support its conclusions". The plaintiff submitted that this statement mischaracterises the Review Panel's analysis, as the Review Panel considered it necessary to request and obtain the Korber Report in order to resolve a lack of clarity about the causation of the abnormalities shown on cervical spine imaging between the 2016 and 2018 MRIs.
16. In obtaining the Korber Report, the Review Panel stated that it was "unclear whether or not the abnormalities shown on cervical spine imaging was progression of the subject motor accident related trauma or a separate event" (CB 22). It stated that "accordingly", it instructed the secretary to issue a notice requesting further information from the parties and "additionally" a report from Assessor Korber to address the imaging studies of the cervical spine" (CB 22-23).
17. The Review Panel stated that it took into account the Korber Report and that it was "mindful" of the report which "suggested that although there had been disc changes, there was no evidence of disc herniation on the MRI scan of 19 September 2016." The report therefore provided evidence in support of the Review Panel's conclusion about the causation of the plaintiff's radiculopathy. It follows that the report was significant and that the plaintiff should have been given an opportunity to respond to it.

Resolution

1. The obligation of a Review Panel to afford procedural fairness to parties such as the plaintiff has been variously expressed, including as outlined in Frost and Boyce in the plaintiff's submissions set out earlier in this judgment.
2. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 273 ALR 223 ("SZGUR"), French CJ and Kiefel J stated at [9]: "…Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision…" (footnote omitted)
3. In Wingfoot, the High Court described the requirement of a medical panel to afford procedural fairness under the analogous Victorian motor accident compensation scheme at [47] as follows: "[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, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the medical panel with material which may be relevant to the formation of the opinion and to make submissions to the medical panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the medical panel may seek to persuade the medical panel to adopt reasoning or conclusions expressed in those opinions. The medical panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. 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. The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." (Footnotes omitted)
4. The insurer conceded that the Review Panel had an obligation to afford procedural fairness to the plaintiff, but made submissions in relation to the content of that obligation to the effect that the relevant guidelines did not impose a blanket obligation on the Review Panel to forward "any additional information" to the parties before making its decision.
5. The Review Panel was bound under ss 65(1) and 133(2) of the MAC Act by both the Medical Assessment Guidelines and the Permanent Impairment Guidelines. I have set out the relevant clauses earlier in this judgment.
6. Clause 1.41 of the Permanent Impairment Guidelines relevantly states that where there are inconsistencies between a medical assessor's clinical findings and information obtained through medical records, the claimant "must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness." This provision is not directly relevant to the circumstances of this case, where both the Medical Assessor and the Review Panel agreed that the plaintiff's 2018 MRI scan showed radiculopathy, but merely came to different clinical conclusions about its causation.
7. Clauses 1.43 to 1.44 of the Permanent Impairment Guidelines concern additional investigations. Clause 1.43 states that the claimant should attend with radiological and medical imaging, and that "[i]t is not appropriate for a medical assessor to order additional investigations such as further spinal imaging." Where further testing is required, "it is appropriate to conduct the prescribed tests as part of the assessment": see cl 1.44. These clauses do not directly refer to additional reports which comment on medical imaging, such as the Korber Report.
8. Clause 16.21.3 of the Medical Assessment Guidelines states that a Review Panel may hold a meeting in which it determines whether additional information is required in order to make a decision, such as the Korber Report in this case. Clause 16 does not indicate whether such additional information, if required, is to be provided to the parties.
9. Clause 12.1 of the Medical Assessment Guidelines states that when parties themselves submit documents (and other relevant material) in relation to an application or reply, they must have also provided a copy to the other party. Under cl 12.3, medical assessors, including the Review Panel, are not to take into consideration any documentation or information that has not been provided to the other party, except as provided for in Chapter 12 of the Medical Assessment Guidelines. Chapter 12 provides an exception to this rule in relation to radiological scans under cl 12.9. However, there is no exception in relation to medical reports which comment on radiological scans, such as the Korber Report.
10. None of these guidelines specifically dictates that the Review Panel, in circumstances where the Review Panel itself requested the Korber Report, was under an obligation to provide the report to the parties. However, it is my view that the relevant guidelines contemplate that the parties, and particularly the claimant, were to be afforded an opportunity to consider the documents on which the Review Panel relied in making its decision. It is certainly not the operation of these clauses to carve out an exception to the requirement to afford procedural fairness in relation to additional reports ordered by the Review Panel, such as the Korber Report in these proceedings.
11. The second of the insurer's primary submissions is that even if the Review Panel breached its obligation to inform the parties of its intention to rely on the Korber Report, the report was not "material and crucial" to the Review Panel's decision. This is because the weight of evidence before the Review Panel was that the plaintiff's C6/7 disc protrusion, which appeared on the 2018 MRI scan, was not present in 2016, and was therefore a separate condition not attributable to the accident.
12. I have set out the Review Panel's reasons earlier in this judgment. Having considered the additional evidence (including the Korber Report) and the Medical Assessor's decision, the Review Panel considered the reports of Dr Verma, who assessed the plaintiff in 2016, and and of Dr Sun in 2017, both of whom found no signs of radiculopathy. The Review Panel also noted that Dr Barrett had assessed the plaintiff in 2017 and assessed permanent impairment at 5%. Assessor Wilding had also found in January 2018, before the 2018 MRI scan, that the plaintiff did not have radiculopathy. The Review Panel noted that it was only after the second MRI scan in September 2018 that the plaintiff was revealed to have a "very large" disc protrusion on the C6/7 disc. The Review Panel noted the opinion of Dr Brennan, who referred to the 2018 scan in concluding that "clearly the disc protrusion cannot be the cause of all [the plaintiff's] pain syndrome", as he had also suffered from pain at the time of his 2016 scan, which showed no nerve compression. The Review Panel concluded that the plaintiff suffered from two conditions: a soft tissue injury arising from the accident, but which gave rise to 0% permanent impairment, and a second condition of radiculopathy that arose separately and was not related to the accident.
13. At the hearing of these proceedings, counsel for the insurer submitted that had the Review Panel merely concluded that the plaintiff's 2018 scans showed new lesions which, in their clinical judgment, were not attributable to the accident, the decision would be unreviewable in this Court. He said that instead, the Review Panel, in fairness to the plaintiff, ordered the Korber Report in order to inform its reading of the imaging with the opinion of a radiologist (T 27.30-35). Counsel for the insurer conceded the Review Panel's decision to furnish the Korber Report was "unusual" (T 27.42), but said it added nothing to the available medical reports or imaging which was not already before the Review Panel.
14. In my view, this submission does not accord with the Review Panel's stated reasons for furnishing and considering the Korber Report in its reasons. The Review Panel stated that it "decided that additional information would assist [it] to make a decision, because there was a subsequent accident and it was also unclear whether or not the abnormalities shown on cervical spine imaging was progression of the subject motor accident related trauma or a separate event" (CB 56). It was for this reason that the Review Panel requested the additional Korber Report addressing the imaging studies of the cervical spine. It is clear from the Review Panel's reasons that it considered the Korber Report might assist what was otherwise "unclear" to the Review Panel from the available reports and scans.
15. In Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82; (2000) 176 ALR 219 ("Aala"), the High Court stated that there is no such thing as a trivial denial of procedural fairness. The High Court concluded at [17]: "We conclude that: (i) the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction in respect of which prohibition will go under s 75(v); (ii) if there has been a breach of the obligation to accord procedural fairness, the consequences of the breach were not gainsaid by classifying the breach as 'trivial' or non-determinative of the ultimate result - the issue is whether there has or has not been a breach of the obligation; (iii) the practical content of the obligation, and thus the issue of breach, may turn upon the circumstances of the particular case; and (iv) the remedy of prohibition under s 75(v) does not lie as of right, but is discretionary."
16. It is clear from the Review Panel's reasoning that it considered the Korber Report and was "mindful" of it when interpreting the evidence of disc herniation between the 2016 and 2018 MRI scans. It is not for this Court to speculate whether, and in what way, the Review Panel may have reached a different decision had it afforded the plaintiff procedural fairness. Rather, it is my view that had the plaintiff been notified of the Review Panel intention to call for the Korber Report, it may have sought to furnish its own medical report and submissions, with the result that the Review Panel could have realistically reached a different conclusion: see SZMTA at [45]. As such, I am satisfied that the plaintiff was denied procedural fairness, which constitutes a constructive failure to exercise jurisdiction and an error of law. The decision of the Review Panel should be set aside.

Costs

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

The Court declares that: 1. The decision of the Review Panel dated 6 March 2020 is vitiated by jurisdictional error.

The Court makes an order: 1. In the nature of certiorari removing into the Court the decision of the Review Panel dated 6 March 2020 and quashing that decision.

The Court further orders that: 1. The matter is remitted to the State Insurance Regulatory Authority to be determined according to law. 2. The first defendant is to pay the plaintiff's costs on an ordinary basis. I certify that this and the 33 preceding pages are a true copy of the reasons for judgment herein of the Honourable Associate Justice Harrison. Dated: Thursday, 22 October 2020 Associate

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: 22 October 2020