Dunbar v Allianz Australia Insurance Limited

Supreme Court of NSW|2014-05-02|Before: Fullerton J

Judgment

HER HONOUR: On 1 May 2009 the plaintiff was injured when the motor cycle upon which she was being carried as a pillion passenger collided with a vehicle insured by the first defendant.
On 20 February 2012 the plaintiff applied for an assessment of a permanent impairment dispute in accordance with Part 3.4 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act") in respect of injuries she claimed were caused by the accident.

The accident and the treatment the plaintiff received for her injuries

The plaintiff suffered a loss of consciousness at the collision site and was transported by ambulance to hospital where she was treated for fractures to her left arm and wrist, both of which required surgery. The ulnar fracture displaced, requiring further surgery in a subsequent hospital admission. A toe on her right foot and a finger on her right hand were also fractured, both of which were managed by taping. She also sustained a fracture to her left orbital floor which required surgery, including plastic surgery.
An injury to her cervical spine was identified on a CT scan performed on 2 May 2009 during her hospitalisation. It was reported by Dr Ken Le as a "probable" anterior inferior corner fracture in the region of the neck (C5/C6) due to hyperflexion, although a fragmentary osteophyte was also considered as a possibility. No imaging of the lumbar spine was undertaken at that time.
The fractures to the plaintiff's left arm and wrist, finger and toe healed over a period of approximately six months. She was referred for hand therapy in October 2009 and physiotherapy and chiropractic treatment for her left shoulder in February 2010, at which time minor supraspinatus tendinopathy was identified.
The metalware which had been surgically inserted into her wrist after the accident was removed in February 2010. The plating inserted into her left orbital floor remained in situ with some residual hypersensitivity in the left cheek.
A CT scan of the plaintiff's cervical spine was performed in February 2010 where it was reported that there was no evidence of "any recent or previous fractures".
In August 2009 the plaintiff consulted with Dr Ralph Mobbs, neurosurgeon, complaining of a recurrence of bilateral sciatica for which she was treated before the accident. In June 2008 (the year prior to the accident), Dr Mobbs treated the plaintiff for left sided sciatica. On imaging which was undertaken at that time, a degenerative disc disease at L5/S1 with left S1 nerve impingement was identified. In November 2008 Dr Mobbs performed a laminectomy and left microdiscectomy from which the plaintiff had made a full recovery before the accident in May 2009.
Following the consultation with Dr Mobbs in August 2009, a repeat MRI was performed which revealed what Dr Mobbs reported to the plaintiff's referring doctor as a "new annular tear at the L5/S1 level", which he described as "not evident on the earlier scan" (clearly a reference to scans undertaken in 2008). No impingement on the nerve was identified and no treatment was recommended. It was Dr Mobbs' stated expectation that the annular tear would mend.
On 5 May 2010 the plaintiff again consulted with Dr Mobbs complaining of pain in the lower back and neck. Dr Mobbs reviewed MRI scans of both the lumbar and cervical spine which had been performed the day before the consultation, after which he reported to the plaintiff's treating doctor as follows: Lumbar spine. She still has ongoing intermittent sciatica however this is nowhere near as severe as the very acute pain that she had about a year or two ago when I performed a discectomy. As you know, she was going well following the surgery and then was involved in a car accident. Her back and leg pains recommenced following this injury. The latest MRI scan demonstrates an ongoing annular defect at the posterior wall of the L5/S1 disc [described in the scan as a "shallow central annular tear"] that is certainly taking its time to heal up. There is no underlying nerve impingement at this point in time. I recommend ongoing conservative management and a CT-guided block may be a benefit if she does develop worsening pain. Cervical spine. There appears to be healing of the C5 fracture based on the most recent MRI scan. The C5/C6 C6 disc has lost its signal characteristics at the level of the disc and nucleus. There is no nerve impingement. Her neck pain may be arising from the disc injury, or due to the muscle imbalance related to her left-sided arm fracture.
Dr Mobbs recommended that the plaintiff's pain be managed conservatively with chiropractic treatment and pilates.
By January 2011 the plaintiff had resumed work as an Executive Officer to the Deputy Head of the University of New South Wales for four days a week and was expected to resume work on a full-time basis by May 2011.
On 20 July 2011 the plaintiff attended on Dr Mobbs complaining of a "flare up" of pain symptoms in her back. On reviewing the MRI scans of both the lumbar and cervical spine performed in June 2011, Dr Mobbs reported to the plaintiff's treating doctor as follows: I have reviewed the MRI scan performed on the 22nd June 2011. The problem remains at the L5/S1 disc. She has a posterior annular tear with a bulge. There is no significant nerve impingement, and certainly no indication for surgical intervention.
The referral of the medical dispute for assessment
On 20 February 2012 the plaintiff applied for an assessment of a permanent impairment dispute in respect of injuries she claimed were caused by the accident, including, so far as is relevant to the prerogative and other relief she seeks in the judicial review proceedings, the injuries to her cervical and lumbar spine as described in (4) and (5) below.
The full complement of injuries referred for assessment, are described in the referral and reproduced in the medical assessor's reasons for decision. They are as follows: 1. Left Colles' fracture; 2. Left ulna - fracture; 3. Right proximal phalanx (big toe) - fracture; 4. Neck - soft tissue injury and probable fracture of C5/C6; 5. Low back - annular tear with broad based disc bulge at L5/S1; and 6. Head - post concussion syndrome/TBI.
Dr Cameron certified that the injuries in (1)-(3) and (6) were caused by the accident. However, in respect of the "neck" and "low back" injuries in (4) and (5), he only certified soft tissue injuries as having been caused by the accident, as to which he assessed 0% Whole Person Impairment ("WPI").
The MAS application included a body of supporting documentation, including reports from Dr Mobbs, together with radiological and other imaging reports of the lumbar and sacral spine which both pre-dated and post-dated the accident, including those summarised in [6]-[15] above.
In a report of December 2011, which also accompanied the MAS application, Dr Mobbs offered his opinion as to the extent of the aggravation of the plaintiff's pre-existing disc injury, as to which he said: There is no doubt that the patient has sustained an aggravation of a pre-existing L5/S1 disc injury. The relevant information here however is that she did make an excellent recovery following her initial microdiscectomy and was essentially pain-free following the surgery. It is likely that she did have some form of underlying annular weakness that has been aggravated with the motor vehicle accident. In my opinion, the motor vehicle accident was a significant contributing factor to the aggravation. It is impossible to put this in exact percentage terms however I am happy to state that the motor vehicle accident was a major contributing factor to her current L5/S1 annular tear and ongoing low back symptoms.
The first defendant's reply, dated 26 March 2012, also included a body of supporting documentation in which the plaintiff's WPI was assessed by Dr Cummine, orthopaedic surgeon, at 13%. He attributed 5% of the WPI to the injury to the plaintiff's cervical spine, 7% to her right wrist and 1% to her right toe. He assessed 5% WPI as a result of pre-existing injury to the plaintiff's lumbar spine but with no impairment attributable to the accident.
The first defendant's reply also included submissions in which the defendant identified the injury to the plaintiff's lumbar spine as inappropriate for referral given its description as an "aggravation/injury" in the plaintiff's application (apparently based upon the opinion of Dr Mobbs set out above) and, for that reason, incapable of giving rise to an assessable degree of permanent impairment under the MAA's Permanent Impairment Guidelines ("the Guidelines"). The first defendant further submitted that the application for referral should be rejected on the basis that in a report from Dr David Millons (upon whose opinion the plaintiff apparently relied for the WPI assessment of her orthopaedic injuries at 9%), the injury to the plaintiff's lower back was excluded, it being Dr Millons' view that injury had not stabilised, a prerequisite to an assessment of WPI under the Guidelines.
In May 2012 the plaintiff applied to defer the medical assessments scheduled for August 2012 as a result of her pregnancy. In that correspondence, the plaintiff's solicitor indicated that were the deferral granted, further reports would be obtained to address the matters raised in the first defendant's submissions.
Both parties served additional reports in advance of the medical assessments rescheduled for May/June 2013.
The plaintiff relied upon a further report from Dr Millons, dated 5 March 2013, in which he assessed her WPI in respect of her lumbar spine at 5% which, together with his assessment of permanent impairment due to the injuries to her cervical spine and her left and right limbs, resulted in a WPI of 14%. Dr Millons assessed the plaintiff's lower back after he reviewed Dr Mobbs' report of June 2012. In that report and on review of Dr Mobbs' most recent examination of the plaintiff (which appears to have been in June 2011), he reported that her condition had stabilised with surgery likely at some unspecified time in the future.
The first defendant also served a further report from Dr Cummine, dated 21 February 2013. After reviewing the imaging studies (which, while not specified, appears to be a reference to the CT scans of the plaintiff's cervical spine in her initial hospitalisation), Dr Cummine revised his earlier assessment of the injury to the plaintiff's cervical spine as follows: In regard to the imaging at the time of her trauma, I would make the following comments. In regard to any fracture of the cervical spine, the only possible bony injury I could identify was at C5 vertebra. There is a small separate fragment off the antero-inferior border of the C5 vertebra, with no increase in the size of soft tissue shadow. Below C4, however, the size of the soft tissue shadow is not nearly as reliable. Having said that, although the fragment could be a small avulsion fragment from the anterior inferior tip of C5, I am inclined to think it is an unossified epiphysis for the following reasons: ● Under magnification it appears to have a completely surrounding cortex. ● I can see no obvious fracture line, rather a gap. ● In addition, the antero-inferior tip of the vertebra is rounded and has a full thickness cortex immediately adjacent to the gap. These radiological findings tip the balance of favour of the appearance being explained by an unossified epiphysis, a not uncommon finding into the axial skeleton, rather than a recent avulsion fracture.
In the result, Dr Cummine allocated a Diagnosis Related Estimate ("DRE") I category impairment to the cervical spine attracting a 0% WPI, reducing her WPI as a result of the accident to 8%.

The rescheduled medical assessments

Medical assessments of the plaintiff's injuries were ultimately conducted by two medical assessors in May and June 2013.
The medical assessment of the plaintiff's trigeminal neuralgia (the result of the fracture to the floor of the left orbital floor and the trigeminal nerve) was undertaken by Dr Fry on 23 May 2013. On 3 June 2013 he certified that these injuries attracted an assessment of permanent impairment of 20%.
The medical assessment of the plaintiff's orthopaedic injuries was undertaken by Dr Cameron on 14 June 2013.
On 6 July 2013 Dr Cameron certified an assessment of permanent impairment of 1%, referable solely to the injury to the plaintiff's wrist. As noted above, although an injury to the plaintiff's spine at C5/C6 and the annular tear to her lumbar spine at L5/S1 were referred for assessment, the only injuries to the cervical and lumbosacral spine identified by Dr Cameron as caused by the accident were soft tissue injuries. He found the plaintiff did not present with any "significant clinical findings" in respect of those injuries. For that reason, and in accordance with the governing DRE, both injuries attracted a Category I estimate of WPI of 0%.
On 8 July 2013 a combined certificate of permanent impairment at 21% (being the 20% of WPI as assessed by Dr Fry and 1% as assessed by Dr Cameron) was issued by the MAA.
On 8 August 2013 the first defendant successfully applied to the Proper Officer under s 63(3) of the Act for a review by a Medical Review Panel of Dr Fry's assessment of the degree of WPI permanent impairment due to the plaintiff's trigeminal neuralgia. The Panel determined that 6% WPI was the appropriate assessment and revoked the certificate issued Dr Fry.
On 16 August 2013 the plaintiff also applied to the Proper Officer under s 63(1) of the Act for a further medical assessment of her orthopaedic injuries the subject of the certificate issued by Dr Cameron. That application was refused.
On 22 October 2013 the MAA issued a further combined certificate of permanent impairment at 7%.

The proceedings in this Court

By summons dated 21 January 2014 the plaintiff commenced proceedings for relief in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of Dr Cameron as vitiated by legal error ("the first decision"). The same relief was sought in respect of the decision of the Proper Officer ("the second decision"), after he declined to refer Dr Cameron's MAS assessment to a Review Panel and the decisions of the MAA (the third defendant) of 8 July 2013 and 22 October 2013 to issue combined certificates ("the third decision").

Questions of leave

The plaintiff filed an amended summons dated 2 March 2014 and sought leave to file a further amended summons on the day of the hearing. Senior counsel for the first defendant did not object to late service of the further amended summons. Since the second, third and fourth defendants filed submitting appearances upon service of the original summons I granted leave to file the further amended summons, despite the fact that they had not been served with the amended summons before leave was sought.
The first defendant did take the point that the original summons was also filed out of time (Rule 59.10 of the Uniform Civil Procedure Rules 2005). Accordingly, leave was required to continue the proceedings. Mr Connelly, the plaintiff's solicitor, swore an affidavit in support of leave being granted in which he detailed the steps the plaintiff took to exhaust her statutory remedies before commencing proceedings for judicial review. These were dictated, at least in part, by the first defendant's successful challenge to the assessment of Dr Fry (which post-dated Dr Cameron's assessment) and which had the effect of reducing her WPI below the 10% threshold. The first defendant did not seek to cross-examine Mr Connelly and did not oppose leave being granted. I granted leave.

The evidence in the proceedings

Mr Connelly's affidavit filed in support of the summons annexed a large number of reports relating to the treatment the plaintiff received for the full complement of injuries sustained in the accident, and other materials relied upon by her in the assessment process. The plaintiff also swore an affidavit in which she identified the imaging reports and radiological scans she took with her when she attended upon Dr Cameron in June 2013 and which he returned to her at the end of the assessment.
Although the plaintiff seeks relief against each of the decisions of the second, third and fourth defendants (identified in the summons as the second and third decisions), Mr Kelly, senior counsel for the plaintiff, accepted that were the challenge to Dr Cameron's assessment of the injuries to the plaintiff's cervical and lumbar spine (the only part of the first decision said to be vitiated by legal error) to fail, the relief sought against the second and third defendants (respectively, to refuse to refer the medical dispute to a Review Panel and to issue combined certificates) must also fail. That must follow since the challenge to the decision of the Proper Officer is said to be as a result of his failure to identify the same errors in Dr Cameron's approach to the assessment of the injuries to the plaintiff's cervical and lumbar spine as are identified in the summons, and the decision of the MAA to issue combined certificates is governed by s 61(10) of the Act, which provides that the certificate is valid, for present purposes, subject only to the invalidity of the first decision.
In those circumstances, only a select number of the documents annexed to Mr Connelly's supporting affidavit were included in the Court Book and referred to in the course of oral argument. Each of the reports of Dr Mobbs to which reference has been made above were included in the Court Book as were the scans and other radiological reports also summarised above.

The medical assessment by Dr Cameron - the first decision

In certifying that the injuries caused by the motor vehicle accident resulted in a permanent impairment of 1%, Dr Cameron relied upon a clinical assessment of the plaintiff and the available documentation described in the preamble to his reasons for decision as "the MAS application form and supporting documentation and the MAS reply form and supporting documentation".
Since it is only Dr Cameron's approach to the assessment of the injuries to the plaintiff's cervical and lumbar spine that is said to disclose legal error, it is unnecessary to refer to his approach to, or his assessment of, the other orthopaedic injuries referred for assessment, or to the supporting document and imaging studies that deal with those injuries.
In Dr Cameron's review of the documentation specific to the injuries to the plaintiff's cervical and lumbar spine he said: Imaging studies were available as follows: ● MRI lumbosacral spine, 22 June 2011 showed a L5/S1 disc lesion. ● CT scan of the cervical spine 11 February 2010 showed no significant abnormality. … The x-ray of the cervical spine on 01 May 2009 is reported as possibly showing a bony fragment "at the anterior/interior corner of the C5 vertebral body". The radiologist thought that this may have been a fragmentary osteophyte. … The report of Dr Millons dated 05 March 2013 provided a comment on treatment and evaluation of whole person impairment. I noted the previous report of Dr Millons dated 18 May 2011. … There were several reports provided to Dr Cummine. In the reports dated 22 March 2011 and 21 February 2013 Dr Cummine provided an evaluation of whole person impairment. The report of Dr Burns dated 31 January 2013 provided an evaluation of whole person impairment. … Multiple reports were provided from Dr Mobbs. These predated the subject motor vehicle crash. These confirmed that there had been significant lumbar spinal problems requiring surgery. [Emphasis added.] I noted the report of the MRI of the lumbar spine performed on 25 October 2008 which is prior to the subject motor vehicle crash. This is reported as showing an L5/S1 disc protrusion.
On the issue of causation of the injuries to the plaintiff's cervical and lumbar spine, Dr Cameron concluded that she sustained only a soft tissue injury to the cervical spine (there being no clear evidence that a fracture occurred at that site) and an aggravation of an existing soft tissue injury to her lumbosacral spine.
Upon Dr Cameron's clinical examination of the plaintiff's cervical spine he said: At the cervical spine there was slightly and symmetrically reduced range of motion without muscle spasm or guarding. There were no radicular symptoms.
Upon his clinical examination of the plaintiff's lumbar spine he said: At the lumbosacral spine there was no significant restriction in range of motion. There was no muscle spasm or guarding and no radicular symptoms.
After setting out the definition of permanent impairment in the Guidelines, and satisfying himself that it applied in his assessment of the plaintiff's injuries, Dr Cameron determined that the plaintiff "has no significant clinical findings" referable to the soft tissue injury to the cervical spine such that a 0% WPI was the appropriate DRE evaluation. He made the same findings, applying the same reasoning, in his assessment of the WPI referable to the soft tissue injury to the plaintiff's lumbosacral spine. He went on to say: … there are no symptoms or signs that are currently present that justify assessment of a DRE II in the spinal region, specifically no muscle spasm, no muscle guarding and no dysmetria.

The decision of the Proper Officer

On 24 October 2013, the Proper Officer rejected the plaintiff's application to have Dr Cameron's assessment of the injuries to the plaintiff's lumbar and sacral spine reviewed by a Medical Review Panel. The Proper Officer noted that the plaintiff relied upon what he described as "various medical records" in support of her contention that her injuries were more severe than assessed by Dr Cameron, and that he had not accurately assessed the level of her whole person impairment as a result.
After considering the application for review, together with the reply forms and supporting documentation, the certificate issued by Dr Cameron as to the plaintiff's WPI (and the reasons for decision accompanying the certificate) and after considering the applicable legislation, the MAA Guidelines and the American Medical Association Guidance to the Evaluation of Permanent Impairment (the AMA Guides), the Proper Officer was satisfied Dr Cameron's clinical findings eliminated any criteria which would satisfy a DRE II finding (or greater) in relation to the cervical and lumbar spine.
The Proper Officer emphasised that the AMA Guidelines required the assessor to determine which DRE Category the injury to the spine fell within, an evaluation which must be based on the examination findings at the time of the clinical assessment (Clauses 1.23 and 1.3 of the Guidelines set out in full below). The Proper Officer also cited Clause 4.11 of the MAA Guidelines (also set out in full below) which provides that radiological evidence must be concordant with a claimant's clinical presentation and that radiological evidence alone is insufficient to qualify for inclusion within a particular DRE Category in the absence of any clinically assessed impairment.
The Proper Officer also observed that Dr Cameron made reference to the plaintiff's lumbar surgery in 2008 and was satisfied that there was no new injury or any aggravation of an existing injury to the lumbar spine as a result of the accident which would qualify for any additional impairment. In the result, the Proper Officer could discern no error in Dr Cameron's finding that only the injuries to the plaintiff's lumbar and cervical spine causally related to the accident were soft tissue injuries, or any error in his reasoning that they did not qualify for any assessment of impairment. The Proper Officer concluded that he had no reasonable cause to suspect that the assessment was incorrect in a material respect, or that there was error of the kind complained of, capable of altering the level of the plaintiff's whole person impairment.

The grounds for judicial review of the MAS decision by Dr Cameron - the first decision

In the amended summons the plaintiff contends that the first decision is vitiated by jurisdictional errors, procedural errors and that it was so unreasonable that no reasonable assessor could have decided that there was no WPI with respect to the injuries to the cervical and lumbar spine.
These legal errors are further particularised at paragraphs 9(a)-(g) of the amended summons as follows: 1. By failing to assess the plaintiff on the basis of the MAA Guidelines, and specifically at Paragraph 1.33, which sets out the clear methodology by which such assessments should be performed by not asking questions of the claimant as to why he did not discover any muscle spasm as would have been required under Clause 1.43 of the Guidelines; 2. Mistakenly noting that the reports of Dr Mobbs, treating orthopedic surgeon, pre-dated the accident, and/or; 3. Failing to consider or properly consider relevant medical material to acknowledge that Dr Mobbs had prepared 7 reports after the accident and/or give them proper weight; 4. Failing to properly consider relevant medical material and failing to give the opinion of Dr Millons proper weight; 5. Failing to consider the scans or give them proper weight in determining whether the plaintiff had suffered an annular tear of a disc and/or fractured vertebrae; 6. By not asking questions as to why he could not discover any muscle spasm as would have been required under Clause 1.43 of the Guidelines in light of the plaintiff's history; 7. And by virtue of the reasons set out in 9(a)-(f) above, the decision of the fourth defendant was so unreasonable that no reasonable medical assessor could have made it as the assessment: 1. was irrational and unreasonable in light of the totality of medical evidence; 2. lacked natural justice; 3. failed to properly consider the questions asked; 4. failed to properly consider the reports of the treating surgeon; and 5. failed to properly consider the results of MRI scans.
The plaintiff's written submissions refined the grounds upon which the challenge to the first decision was mounted. In oral submissions the grounds were refined even further, relieving me of having to deal seriatim with the various grounds in the amended summons.
Doubtless this approach was adopted by the plaintiff's senior counsel in recognition of the fact that many of the grounds pleaded invite the Court to undertake a merits review of the first decision contrary to the principles of judicial review. The complaint that the assessor failed to give "weight" to some aspect of the available material, as set out in paragraphs 9(c), (d) and (e) of the summons, fall into this category as may the complaint, explicit or implicit in many other grounds, that some matter or some material was "not properly considered".
The plaintiff's written and oral submissions do not develop the complaint that proper weight was not afforded certain matters, which I have treated as having been abandoned by the time of the hearing. The asserted failure of the assessor to "properly consider" the material was pursued. One of the questions raised in the proceedings is whether, in this case, that complaint necessarily invites a merits review of the decision of the assessor, that is whether the decision was correct or sustainable, or whether, properly understood, the failure to properly consider the material involved legal error, and is therefore susceptible to judicial review.
In Kelly v Motor Accidents Authority of New South Wales [2006] NSWSC 1444; 46 MVR 553, citing an oft quoted passage in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 per Brennan J), the Court said: [17] … The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality are for the repository of the relevant power and, subject to political control, for the repository alone. [18] The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise…
More recently, in a case to which both parties referred, Beech-Jones J at [46] in AAMI Ltd v Ali [2012] NSWSC 969; 62 MVR 12 said that for an alleged failure on the part of a decision maker to consider what is said to be relevant material it must be demonstrated that the alleged act of overlooking that material flowed from some legal misconception about the function being exercised by the decision maker. His Honour set out the following passage from Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323: It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." [Emphasis added.]
His Honour went on to say at [47]: The italicised portions of this passage emphasise that the task is not one of simply identifying evidentiary material that was relevant to the decision maker's task and then ascertaining whether it was referred to it in their reasons. It involves a process of determining whether or not it was considered and, if not, why it was not considered. The second inquiry is necessary because before jurisdictional error can be established it must be shown that there was, in the words of Craig, an "error of law" which caused the body to ignore the relevant material or, in the words of Yusuf, that the ignoring of relevant material happened "in a way that affects the exercise of the power"…

The plaintiff's submissions

In the plaintiff's oral submissions, it was repeatedly put that the reasons for decision reveal that Dr Cameron failed to "comment, review or consider" the reports of Dr Mobbs that post-dated the accident (or he simply ignored them) and that he failed to "comment, review or consider" all of the radiological and other imaging materials to which Dr Mobbs refers in his reports (or he simply ignored them) contrary to Dr Cameron's obligations as a medical assessor under the Clauses 4.10 and 4.11 of the Guidelines. Those clauses provide as follows: 4.10 The assessment should include: a comprehensive accurate history; a review of all pertinent records available at the assessment; a comprehensive description of the individual's current symptoms; a careful and thorough physical examination; and all findings of relevant laboratory, imaging, diagnostic and ancillary tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports. 4.11 While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called 'normal' in an imaging study in and of itself does not make the diagnosis. Several reports indicate that approximately 30% of persons who have never had back pain will have an imaging study that can be interpreted as 'positive' for a herniated disc, and 50% or more will have bulging discs. Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category.
The plaintiff submitted that Dr Cameron was asked to assess the degree of permanent impairment of each of six specific injuries which included, inter alia: 4. Neck - soft tissue injury and probable fracture of C5/C6. 5. Low back - annular tear with broad based disc bulge at L5/S1. and that he failed to "specifically" assess the annular tear with broad based disc bulge at L5/S1 and did not "specifically" assess the probable fracture of C5/C6 to the plaintiff's neck, as he was obliged to do under Clause 1.20 of the Guidelines.
Clause 1.20 provides: 1.20 An assessment of the degree of permanent impairment involves three stages: (i) A review of medical and hospital records, including: - All available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and - diagnostic findings from all available relevant investigations. (ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and (iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced.
In respect of the injury to the plaintiff's neck, it was submitted that although Dr Cameron considered the x-ray report of 1 May 2009 he "apparently" did not consider or take into account the CT scan of the plaintiff's cervical spine performed the following day which reported a probable fracture due to hyperflexion (notably, as set out at [6] above in full, no mention is made in counsel's submissions of it "possibly being an osteophyte", a feature which was the subject of detailed consideration in Dr Cummine's report of February 2013 and which he ultimately thought the most likely explanation). Dr Cameron referred to Dr Cummine's updated report in the reasons for decision.
It was submitted that Dr Cameron's "apparent" failure to consider the CT scan constitutes a material error capable of altering the outcome of the dispute about permanent impairment from being not greater than 10% WPI assessment to greater than 10% WPI.
In respect of the injury to the plaintiff's lower back, the plaintiff submitted that although Dr Cameron referred to an MRI scan performed pre-accident on 25 October 2008, he "apparently did not consider" an MRI scan that was performed on 24 August 2009 post-accident where Dr Mobbs identified what he described as "a new annular tear at the L5/S1 level that was not evident on her scan dated 25 October 2008", and he did not refer to the MRI scan of 4 May 2010 which revealed "a shallow central annular tear but no central stenosis or nerve root compressive lesion" (set out in full at [12] above). Further, the plaintiff complains that Dr Cameron refers to an MRI scan of 22 June 2011 but does not say what it revealed and that the failure to refer to the MRI or Dr Mobbs' review of it (see [15] above) is also in breach of his obligations in Clauses 1.20 and 4.10 of the Guidelines.
The plaintiff submitted that Dr Cameron's failure to refer to this material in the reasons for decision, coupled with his express reference only to the reports of Dr Mobbs which pre-dated the accident, allows the inference to be drawn that he either ignored the material bearing upon the full extent of the plaintiff's spinal injuries referred to him for assessment, or he failed to consider that material, and he did so in a way that affects the exercise of the power under s 61(1) of the Act to resolve the medical dispute referred to him for assessment, having failed to consider the possibility that the plaintiff suffered a hyperflexion injury to the spine in the accident and to undertake an assessment of permanent impairment of that injury.

The first defendant's submissions

The first defendant submitted that Dr Cameron's decision (both on the issue of causation and the WPI referable to the spinal injuries referred for assessment) was made lawfully, since it was open on the materials available to him and made in accordance with the applicable Guidelines.
The first defendant submitted that the plaintiff's written submissions, and even the refinement of the plaintiff's case in her counsel's oral submissions, blur the distinction between the legality of the decision (that is, whether what Dr Cameron did in making his assessment of the injuries to the plaintiff's cervical and lumbar spine was in accordance with his obligations under the Act) and a merits review of the decision.
The first defendant also submitted that the plaintiff's reliance on nominated clauses of the Guidelines in support of the submission that Dr Cummine had a statutory duty to "comment, review or consider" either or both the reports of Dr Mobbs or the radiological and other imaging materials to which Dr Mobbs refers (and which counsel accepts the plaintiff took with her to the assessment), is misplaced and that neither the Act nor the force of the Guidelines as delegated legislation have that legal effect.
The first defendant emphasised that a medical assessor has no statutory duty under Part 3.4 of the Act to refer in the reasons for decision that accompany the issue of the certificate to all of the materials that accompany the referral of matters for assessment (see s 61(1) of the Act). Further, the only mandatory duty to which the assessor is subject under Clause 1.23 of the Guidelines, is to evaluate a claimant's permanent impairment based upon the assessor's examination of the claimant on the day of the assessment and that the three stages of the assessment in Clause 1.20 of the Guidelines do not impose a mandatory obligation of the kind contended for by the plaintiff.
The first defendant submitted that not only has the plaintiff failed to establish as a primary fact that Dr Cameron did not consider the material identified in submissions as critical to his assessment, that material could not, in any event, have altered the decision that it was Dr Cameron's duty to make since he found no significant clinical findings in the plaintiff's cervical or lumbar spine on examination.
Finally, the first defendant submitted that no vitiating error of law on the face of the record is discernible from the reasons for decision and no jurisdictional error or constructive failure to exercise jurisdiction has been identified. Even were there error of the kind contended for by the plaintiff, the first defendant submitted the Court would refuse relief in the exercise of discretion since the plaintiff has other avenues to challenge the first decision (including a "further" application under s 62 of the Act) should there be any further deterioration in her condition or additional relevant information which emerges.

Consideration

In considering whether the plaintiff has established that Dr Cameron in fact ignored or failed to take into account the reports of Dr Mobbs that post-dated the accident and the other material bearing upon the injury to the plaintiff's lumbar spine, or that I would infer he probably did so, a number of matters should be noted.
There is no equating the evidence that may be relevant to a case that a party may wish to advance in curial proceedings with a relevant consideration for the purposes of judicial review. In the context of judicial review, a relevant consideration refers to a matter that a decision maker is obliged by law to take into account. This was identified by Basten JA in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [15] as the first of four key concepts inherent in judicial review. The second concept, namely how a particular consideration is to be taken into account, and the weight to be accorded it, are matters within the discretion of the decision maker (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24). Of the remaining two concepts identified by Basten JA, only the third is of present relevance, that being the obligation of the plaintiff to establish on the balance of probabilities that the assessor did not take the identified material into account.
I have concluded that the plaintiff's approach in this case to making good the submission that Dr Cameron failed to take into account relevant material in the assessment process was flawed. In the result, I am not satisfied that the assessor ignored or failed to take into account relevant material (or that he probably did so) contrary to his legal obligation to do so.
Counsel's approach not only proceeded on the wrong assumption that Dr Cameron was obliged to set out in detail his review of the full complement of the reports and other material relied upon by the plaintiff in the assessment process in the reasons for decision, and to account for the consideration he gave to that material, but it involved a reading of the reasons in segmented parts for their legal sufficiency contrary to the principles of judicial review which require the reasons to be read as a whole. An administrative decision maker in the position of Dr Cameron as a medical assessor under the Act is not required to specify in the reasons for decision which accompany the issue by him of a certificate under s 61(1) why he did or did not accept certain matters, or why he did not consider a matter to be relevant to the evaluation of impairment - although, of course, he may have chosen to do so. His only duty is to supply reasons for the decision after undertaking the assessment in accordance with the Act and in compliance with the Guidelines (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 and Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56; 216 CLR 212).
The Guidelines cited by the plaintiff's counsel as obliging Dr Cameron to undertake the assessment of the plaintiff's spinal injuries in a particular way (Clauses 4.10 and 4.11) are not mandatory (in the sense of being directive) but instructive. This much is made clear by Clause 1.3. In any event, for Dr Cameron to have utilised the imaging findings relating to both the plaintiff's lumbar and sacral spine to support his evaluation of impairment of injuries causally related to the accident (the full complement of which it was agreed were before him, the plaintiff having taken them to the assessment with her), it was necessary that they be concordant with his findings on clinical examination. Clause 1.23 stipulates that the evaluation of impairment should only be considered as it presents at the time of the assessment. Counsel's submissions failed to deal adequately, or at all, with Dr Cameron's categorical clinical finding that there was no significant impairment in the plaintiff's cervical or lumbarsacral spine on the day of assessment.
While, on one view, the reasons for decision might suggest that Dr Cameron did not consider the reports of Dr Mobbs which post-dated the accident (since he made reference only to those that pre-dated it), I am not persuaded that is an inference I could safely draw. Not only was it common ground that he had the scans and other radiological material to which Dr Mobbs refers in his reports of August 2009, May 2010 and July 2011 (each of which post-dated the accident), but on an available reading of the reasons for decision they were specifically referred to by Dr Cameron in the context of the previous surgery to the plaintiff's lumbar region, as to which there were no residual symptoms such as might attract an assessment of pre-existing impairment under Clauses 1.33 - 1.35 of the Guidelines. In so far as concerns the injury to the plaintiff's cervical spine, the express reference to Dr Cummine's (revised) report allows for the inference to be comfortably drawn that what was at one time thought to be a fracture was more likely to be an osteophyte. In the absence of any clinical finding commensurate with a fracture, Dr Cameron's finding was open to him and no legal error vitiating that aspect of his reasons for decision has been made out.
The plaintiff's contention that Dr Cameron's decision was unreasonable is also not made out. In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, the Court held that every statutory discretionary power has attached to it by common law a requirement that it be exercised reasonably, having regard to the statutory purpose of the power. In this regard, the High Court held that the decision-maker must not be "unreasonable in a legal sense" (at [72]). This concept of "legal unreasonableness" (as it is described at [66]) does not involve the Court undertaking a review of the merits of an exercise of discretionary power. In this case, Dr Cameron has based his decision on the medical evidence before him and, as I have sought to emphasise, on his own examination of the plaintiff. This ground should be rejected.
The plaintiff's claim for relief in respect of the first decision is rejected. Having regard to the way in which the relief sought by summons was argued at the hearing, in particular the challenge t the second and third decisions being dependent on the first decision being vitiated by error, the summons is dismissed.

Orders

1. The summons is dismissed.
The plaintiff is to pay the first defendant's costs.

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: 13 March 2015

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