El-Kazzi v Allianz Australia Insurance Limited & Anor

Judgment 1On 30 March 2010 the plaintiff was involved in a motor vehicle accident when the driver of another vehicle had a fatal heart attack. In consequence of this there was a head-on collision and the plaintiff sustained a number of injuries. Some of those injuries were very serious. 2The plaintiff received medical treatment and was referred to a Dr John Davis who prepared a medico-legal report dated 18 July 2011. She sought compensation from the first defendant who was the relevant third-party insurer for the purpose of her claim. There then arose a "medical dispute", which is to say that there was a "disagreement or issue" between the plaintiff and the first defendant as to the extent of her injuries: s 57 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). 3The plaintiff filed an assessment application form with the second defendant. She was referred to a "medical assessor", Dr Dwight Dowda, who prepared a "medical assessment" dated 12 February 2013: see ss 57, 61 of the Act. (I note that the assessment is stamped as received on 12 February 2012.) 4On 28 May 2013 Dr Davis prepared a second report. On the basis of that report, and by application dated 14 August 2013, the plaintiff sought a further medical assessment pursuant to the provisions of s 62 of the Act. An application for a further assessment is to be considered by a "proper officer". On 20 November 2013 the proper officer determined that the information in Dr Davis's second report was "not capable of having a material effect on the outcome of the previous assessment". She determined that the "MAS file in this matter will now be closed". I take "MAS" to be an acronym for Medical Assessment Service: cf s 57A of the Act. 5By summons filed 19 February 2014 the plaintiff seeks judicial review of the decision of the proper officer refusing to order a further medical assessment. The plaintiff claims relief pursuant to the provisions of s 69 of the Supreme Court Act 1970 (NSW) and in particular seeks an order in the nature of certiorari and, if necessary, orders in the nature of prohibition and mandamus. The plaintiff seeks, seemingly in the alternative, declaratory relief. The summons also sought injunctive relief to prevent the first and second defendant from acting upon the proper officer's decision. At the hearing of the appeal the parties assured me that urgent relief such as an interim injunction was not necessary in the circumstances of the case. 6The grounds of the application for judicial review are set out in the summons at some length and in narrative form. The plaintiff asserts that the proper officer made "a number of jurisdictional errors and/or errors of law on the face of the record" or alternatively, constructively failed to exercise her statutory power. The particulars of those errors are particularised from subparagraphs A to H of paragraph 7 of the summons. The final subparagraph ("H") asserts legal unreasonableness and that contention is further particularised within subparagraph H. 7The first defendant responded, submitting "there is no error in [the proper officers]'s decision". The second defendant submits to the orders that the Court decides to make. 8At all stages of a consideration of the plaintiff's summons, it is necessary to bear firmly in mind the limited nature of review which is available to the Court. The purpose of the Act includes the streamlining of claims arising out of personal injuries occasioned during motor vehicle accidents. In doing so it casts particular responsibilities on various officers referred to within the Act and associated delegated legislation. The responsibility to make medical assessments was cast upon the medical assessor (in this case Dr Dowda). A medical assessment has particular importance in cases brought under the Act because once it is certified it "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": s 61(2). A medical assessment is capable of review by a review panel under s 63. 9The Act casts the responsibility upon the "proper officer" to determine whether or not there should be a further medical assessment and provides in s 62 the grounds upon which such a determination is to be made. In QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Basten JA commented at [3]-[4] on the "awkward" nature of the statutory language. 10The determination of whether there should be a further medical assessment is a question for the proper officer and not for this Court on an application for judicial review. This has been emphasised in a number of cases which have come before single judges of this Court and the Court of Appeal: see for example, Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [98]-[99] (Beazley JA) and [113] (Macfarlan JA); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [17] and [34]-[36] (Basten JA, Ward JA and Young AJA agreeing); Miles v Motor Accidents Authority of NSW & Ors [2013] NSWSC 927; (2013) 84 NSWLR 632 at [38] (Hoeben CJ at CL). 11These cases make it clear that matters under s 62(1A) - that is "the capacity of the additional information to affect a further medical assessment" - is a matter for "the subjective satisfaction of the proper officer". Accordingly, it is not open to the plaintiff in these proceedings to attempt to persuade me that the proper officer's decision was factually wrong or that her reasons for refusing the further assessment contained infelicitous or even erroneous language. 12It is necessary for the plaintiff to establish jurisdictional error, a constructive failure to exercise jurisdiction or "legal unreasonableness" as that expression was explained by the High Court in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at 537 [63] to [76]. In Rodger v De Gelder, Beazley JA at [98] posed the question as whether the decision of the proper officer is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds". Her Honour relied on the observations of Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611 at [16]. 13Having noted the constraints upon the jurisdiction that I am here exercising, it is important to remember that the decision of the proper officer is subject to judicial review and must be exercised according to law: see Rodger v De Gelder at [70]-[71] and QBE Insurance (Australia) Ltd v Miller at [5]-[6]. 14The proper officer is required to give "brief written reasons": Medical Assessment Guidelines cl 14.8. The responsibility cast upon the proper officer is an important and significant one due to the status of medical assessments to which I have already referred. The impact of the decision on a plaintiff's legal rights is particularly acute in a case such as the present where the medical assessment resulted in a binding assessment that the plaintiff's injuries represented a 6% permanent impairment. Because her permanent impairment is not greater than 10% she is not entitled to claim for non-economic loss (defined in s 3 of the Act as pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement): see s 131 of the Act. What the plaintiff contends in this case is that the material upon which she sought a further medical assessment was material capable of establishing a permanent impairment of more than 10%. 15Of course, the importance or significance of the decision does not affect the fact that the decision is for the proper officer and not for this Court. Nor does it make it appropriate for this Court to enter into the subjective fact-finding or evaluative process undertaken by the proper officer. Nothing that follows should be interpreted as my so doing. But to understand the plaintiff's submissions on jurisdictional error and the first defendant's response it is necessary to understand the factual context in which the impugned decision was made. However it is only necessary to review the factual background briefly. 16Both parties have (appropriately) taken me at some length through the factual material in order to lay the foundations of their submissions on the issue before me. The plaintiff seeks to rely on the factual material to support its claim that the proper officer failed to take into account relevant and significant information or otherwise made a decision that was unreasonable in the legal and relevant sense. The defendant on the other hand sought to show, by reference to the factual material, that the decision of the proper officer was logical and open to her. Thus it is necessary to refer briefly to that material. 17The first report of Dr Davis, which in a sense precipitated the medical dispute, made reference to a number of injuries. Those injuries include an injury to the right shoulder and an injury to the left knee (including but not limited to scarring). It also referred to a number of other injuries that are not presently relevant other than in a peripheral way. 18Dr Dowda was called upon to make a medical assessment in relation to four specific, and specified, injuries: (i)Cervical spine; (ii)Lumbar spine; (iii)Left foot - fracture of the fourth and fifth metatarsal walls; (iv)Left knee - scarring. 19Dr Dowda concluded that the injury to the lumbar spine was not caused by the car accident the subject of the claim or medical dispute. Accordingly, he declined to make an assessment of the degree of impairment referable to that injury: cf s 132(3) of the Act. 20Dr Dowda concluded that the injury to the cervical spine was caused by the car accident and resulted in a 5% "whole person impairment" (WPI) and that the scarring to the left knee was also caused by the accident and resulted in a 1% WPI. Thus the assessment was that the plaintiff suffered a 6% WPI referable to the subject car accident. 21Dr Dowda was not called upon to make any assessment of the injury to the right shoulder or the underlying injury to the left knee, his brief requiring him only to assess the scarring to the left knee. Nevertheless, his extensive report made reference to both the left knee and the right shoulder. 22Dr Davis's second report contained an assessment of the whole person impairment. Such an assessment was absent from his original report. The reason that he had not made such an assessment on the first occasion was that he examined the plaintiff only a few months after the accident and the injuries had not resolved in such a way that such an assessment could sensibly be made. 23In an attachment to his report Dr Davis provided the following assessments of the plaintiff's permanent impairment: (i)Cervical spine 5%; (ii)Lumbar spine 5%; (iii)Right shoulder 5%; (iv)Left knee trauma with proprietors 2%; (v)Scarring 1%. 24It will be seen that the report of Dr Davis was in agreement with the medical assessment in terms of the impairment caused by the injury to the cervical spine and the scarring to the left knee. By the time Dr Davis' second report was prepared the injury to the lumbar spine was essentially irrelevant because the medical assessor had determined, in effect conclusively, that it was not caused by the car accident. But his assessment of the right shoulder (5% WPI) and left knee trauma (2% WPI) was new material, albeit that it was merely his opinion of the WPI. 25The first defendant submits that this opinion was not relevant to the proper officer's assessment or decision under s 62. It is put that the material underlying that statement of opinion of the impairment was essentially the same as when Dr Davis had made his first report, some of which was rejected by Dr Dowda in his medical assessment. 26I find the submission that Dr Davis' assessments of WPI are irrelevant somewhat surprising. I understand the defendant's submission that the WPI percentages provided by Dr Davis may not have been relevant to a medical assessor's determination if the matter had been referred for further review. However I find it difficult to accept that such an assessment was irrelevant to the proper officer's determination of whether there was "additional relevant information" for the purpose of deciding whether there should be a referral for a further assessment under s 62. It was of course open to the proper officer to consider Dr Davis' WPI percentages and to conclude that they did not affect her determination. However in the course of the short letter she made no reference to those percentages at all. 27The proper officer is not medically qualified and the opinion of Dr Davis as to the 5% impairment caused by the shoulder and the 2% impairment caused by the knee injury was new information. I find the failure to refer to that matter puzzling. Had it been referred to and rejected as irrelevant, it would not be open to this Court to interfere with that subjective determination or fact-finding process. 28Whether the failure to refer to Dr Davis' assessment of the WPI percentage referable to the shoulder and left knee constitutes a constructive failure to exercise jurisdiction, a failure to take into account a relevant consideration, or forms the basis of a determination that the decision was vitiated by legal unreasonableness, is not a matter that is necessary to decide in this case. That is because of the conclusion that I have reached upon a review of the reasons of the proper officer. 29The decision of the proper officer and the reasons provided for that decision are contained in the letter dated 20 November 2013. It is appropriate that I set out the terms of that letter in full: "Dear Partners Claimant: Marleine El-Kazzi Date of Accident: 30 March 2010 I have considered the application for further assessment, the reply and all supporting documentation submitted in this matter. The application is made on the basis of a new injury not previously referred to for assessment, being an injury to the right shoulder and additional relevant information about this injury sustained in the motor vehicle accident that was previously assessed by Assessor Dwight Dowda on 6 February 2013. It is submitted by the applicant that at the time of the initial examination by Dr Davis on 18 July 2011 the claimant displayed right shoulder symptoms due to a combination of direct pathology and referred pain from her neck injury. Dr Davis did not provide any whole person impairment assessment of any of the claimant's injuries as he had considered that as it was only four months since the accident the claimant remained in the medical treatment phase and had not achieved maximal medical improvement. It is noted that this report was previously relied upon by the claimant in their initial MAS 2A Application for Assessment of Whole Person Permanent Impairment and was before Assessor Dowda at the MAS Assessment. The MAS Assessor, Assessor Dwight Dowda, in his assessment of the claimant on 6 February 2013 had not formally assessed the claimant's right shoulder injury and left knee (damage of condral surface of patella) injury. The Assessor did however make the following observations in his certificate. "Examination of her upper limbs revealed that she had symmetrical shoulder movement which were normal and while she complained of discomfort in the neck at the extreme ranges of abduction and flexion in the shoulders these active movements were full, symmetrical, normal and with no evidence of limitation. There was no crepitus in the shoulder joints and no deformity of the shoulders themselves." I note that while Assessor Dowda observed "Damage to the left knee in terms of soft tissue injury to the left knee with resultant scarring" he does not suggest that the claimant suffered any right shoulder injuries as a result of the subject accident. I acknowledge the report of Dr Davis dated 28 May 2013 differs to his report of 18 July 2011, in that Dr Davis now considers the claimant's injuries had achieved maximal medical improvement with respect to his diagnosis. However, the report suggests similar findings as the previous report which was available to the MAS Assessor. This report, along with the injury to the right shoulder constitutes as new additional relevant information however the reports relied upon by the applicant do not show how this injury is assessed, would alter the outcome of the previous assessment of the previous assessment of not greater than 10% whole person permanent impairment to greater than 10% whole person permanent impairment. I note the claimant currently sits at 6% whole person permanent impairment. I refer to the parties to the decision of Rothman J in the matter of Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443, at paragraph 52 and 53: 52.In other words, does a party to a medical dispute under the Act have the ability to keep to itself information, not to rely upon it, and later decide to use it as a ground for a further assessment? Such a capacity would clearly be inconsistent with the most expeditious determination of all issues. It would also be inconsistent with the finalisation of matters. 53.Ultimately, the issue depends on the determination of the issue: to whom must the material be additional? It seems the preferable construction, consistent with the purposes of the Act, is that the information must be additional to the party relying on it as a ground for further assessment, being the party referring the matter for further assessment under s 62(1)(a) of the Act. As a consequence of Singh v MAA, the findings and information provided in the report of Dr Davis dated 28 May 2013 similar to those in his report dated 18 July 2011 were previously available to Assessor Dowda at the time of the initial MAS assessment on 12 February 2013 and cannot be considered as additional relevant information. I advise that I am not satisfied that the additional relevant information about the injury is such as to be capable of having a material effect on the outcome of the previously assessment as required by section 62(1A) of the Motor Accidents Compensation Act 1999. I have therefore determined that the application shall not be referred for further assessment because whilst I acknowledge that the report of Dr Davis dated 28 May 2013 differs in respect that he now considers the claimant's injuries have achieved maximum medical improvement, the report suggests similar finding to the previous report dated 18 July 2011 which was available to the MAS Assessor at the time of his assessment. The findings of Dr Davis in his report dated 28 May 2013 and the submissions provided by the applicant do not show how this information could materially alter the outcome of the previous assessment and therefore cannot constitute as additional information as to be such as to be capable of having a material effect on the outcome of the previous assessment. The MAS file in this matter will now be closed. The other party has been advised. Yours faithfully, [Name omitted] Proper Officer Medical Assessment Service" 30Counsel for the plaintiff has used a number of pejorative terms to describe the contents and substance of this letter. For example, he said that the letter showed that the proper officer "didn't know what she was doing", that she had "just gone off the rails" and that her reasons were "incomprehensible". In a similar vein, he submitted that one paragraph of the letter "fits within at least a dozen categories of judicial review". While the use of such pejoratives and hyperbole is unhelpful, there is real force in the submission that the letter contains inconsistencies and errors of real significance. 31The first defendant concedes that aspects of the proper officer's letter are "unfortunate" and erroneous. However the defendant says that this Court should not undertake a review of that letter in the way that a judgment might be reviewed or "with an eye attuned to error". The proper officer is not, as far as I know, a lawyer. Her function is to make a determination in accordance with the terms of s 62 and Chapter 14 of the Medical Assessment Guidelines made pursuant to s 44(1)(d) of the Act. The Guidelines, in clause 14.8, require the proper officer to provide the parties with "brief written reasons for the decision". So it is that I accept the defendant's submission that a letter such as that with which I am currently concerned ought not to be subject to the kind of fine analysis that may be appropriate in other contexts. 32Having accepted that, some of the errors contained in the letter are matters of real substance and, as I understand the defendant's submissions, so much is conceded. 33For example, the proper officer says in the sixth paragraph of her letter that Dr Davis's second "report, along with the injury to the right shoulder constitutes new additional relevant information". Just two paragraphs later she says that the report "cannot be considered as additional relevant information". Those two statements of fact, opinion or conclusion cannot be reconciled. 34In the paragraph immediately preceding the second of those inconsistent statements, the proper officer set out paragraphs [52] and [53] of the decision of Rothman J in the matter of Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443.That decision had been overruled before the proper officer's decision: see QBE Insurance v Motor Accidents Authority [2013] NSWSC 549 where Rothman J acknowledged at [32] and [38] that Rodger v De Gelder "formally overruled" his decision in Singh v MAA (No 1) [2010] NSWSC 550 and, by inference, overruled his decision in Singh v MAA (No 2) (the decision upon which the proper officer purported to place reliance). 35Further, the passages from Singh (No 2) appear to be quite irrelevant to the determination the proper officer had to make. The passages concerned the duty of the parties under the Act to share information with the other party. That was not an issue pertinent to the application made by the plaintiff. 36I suggested during argument that this part of the letter had the hallmarks of material having been copied and pasted from another document. Mr Rewell SC who appeared for the defendant acknowledged with appropriate candour that this was a "likely suggestion" and that "that degree of lack of care is troubling". It may be that there is insufficient evidence for me to come to the conclusion that the proper officer simply copied a portion of another document into the impugned letter of reasons in the plaintiff's case. However, it is a matter of some concern capable of leading to a conclusion that the application did not receive the kind of individual consideration to which the plaintiff was entitled. I do not need to resolve that issue. 37However, there is little doubt that the proper officer's reference to Singh (No 2) was misconceived, legally erroneous and irrelevant to the determination she was required to make. 38There is some force in the defendant's submission that the proper officer was entitled to come to her ultimate conclusion that the material in Dr Davis's second report was similar in substance to that contained in his first report. Thus, as the defendant submits, it may have been open to her to conclude that the matter required to be established under s 62 (that there was "additional relevant information" and that such information was "capable of having a material effect on the outcome of the previous assessment") was not established. 39While I accept that parts of the letter reflect the terms of the statute and that the exercise with which I am concerned is neither a fact-finding exercise nor an exercise in parsing the language employed by the officer whose subjective opinion is paramount, I have come to the conclusion that relevant and fundamental error has been established by the plaintiff. 40Categorising that error as a jurisdictional error, a constructive failure to exercise jurisdiction, an error of law on the face of the record or as legal, vitiating or "Wednesbury" unreasonableness is difficult. It may be, as the plaintiff submitted, all of those things. As was put in a slightly different context "all these things run into one another": Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, cf Minister for Immigration and Citizenship v Li [2013] HCA 18 at [72] (Hayne, Kiefel and Bell JJ). 41I am satisfied that the decision is vitiated by the kind of error referred to by Beazley JA in Rodger v De Gelder. It is "illogical" and "irrational". The irreconcilable statements of opinion as to whether there was (or was not) "additional relevant information" - which is the touchstone of the decision that the proper officer was called upon to make - easily fits those descriptions. Similarly, making reference to irrelevant passages of a case that had been overruled is not a rational or logical approach to a decision affecting the legal rights of the plaintiff. 42Relief under s 69 should be granted. 43For the reasons articulated in some of the cases to which I have earlier made reference it is inappropriate that I grant the kind of declaratory relief sought by the plaintiff. To do so would be, in effect, to exercise the very jurisdiction which the Act has entrusted to the proper officer. I think it is sufficient to make orders in the nature of certiorari and mandamus whereby the decision of the proper officer is quashed and the matter remitted to the Authority (the second defendant) for a decision to be made under s 62 in accordance with the law. 44The plaintiff has submitted that the orders should encompass an order that the matter should be dealt with by a different proper officer. In view of the nature of the errors identified and the matters to which I made reference in paragraph [36], such an order is appropriate. 45Accordingly I make the following orders: (1)An order quashing the decision of the proper officer refusing to refer the plaintiff for a further medical assessment under s 62 of the Motor Accidents Compensation Act 1999 (NSW). (2)Remit the plaintiff's application under s 62 of the Motor Accidents Compensation Act 1999 (NSW) to the second defendant to be dealt with by a different proper officer according to law. (3)The first defendant is to pay the plaintiff's costs.