Flanagan v Allianz Australia Insurance Ltd

Golijan v Motor Accidents Authority of New South Wales (2012) 62 MVR 286; [2012] NSWSC 1106 Haris v AAI Limited [2015] NSWSC 270 Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Insurance Australia Group Ltd v Saraceni [2020] NSWSC 1045 Insurance Australia Ltd v Atkins [2020] NSWSC 67 Insurance Australia Ltd v Warren [2019] NSWSC 1126 Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 McHenry v Insurance Australia Ltd (2019) 87 MVR 298; [2019] NSWCA 68 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 Norrington v QBE Insurance (Australia) Ltd (2021) 96 MVR 170; [2021] NSWSC 548 NRMA Insurance Limited v Ainsworth (2011) 58 MVR 187; [2011] NSWSC 344 Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 282 ALR 24; [2011] FCA 757 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; [1949] HCA 33 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Stanizzo v AAI Limited [2021] NSWSC 1077 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Emily Jane Flanagan (Plaintiff) Allianz Australia Insurance Ltd (First Defendant) President of the Personal Injury Commission of NSW (Second Defendant) Shane Moloney & Richard Crane as a review panel constituted under section 7.26 of the Motor Accident Injuries Act 2017 (Third Defendant) Representation: Counsel: Mr A Canceri (Plaintiff) Mr K Rewell SC (First Defendant) Submitting Appearance (Second and Third Defendant)

Solicitors: CMC Lawyers (Plaintiff) Moray & Agnew (First Defendant) Crown Solicitor's Office (NSW) (Second and Third Defendant) File Number(s): 2022/00030570

Introduction

1. On 22 August 2018, Emily Flanagan ('the plaintiff') was injured in a motor vehicle accident that occurred at the corner of Victoria Road and Church Street, Parramatta. The accident was caused by the fault of the driver of another vehicle: the plaintiff was riding her motorcycle when the oncoming vehicle did a right hand turn in front of her, causing the collision.
2. The plaintiff suffered a range of injuries in the accident, some of which have led to permanent impairments. However, as a result of the decision of the Review Panel of the Personal Injury Commission ('the Commission'), dated 14 November 2021, the plaintiff's claim for damages for non-economic loss under the Motor Accident Injuries Act 2017 (NSW) ('the Act') failed: she was assessed as having an 8% permanent impairment for the accident related injuries and therefore beneath the "impairment threshold" in s 4.11 of the Act - a threshold that was required to be exceeded in order for her to have an entitlement to those damages.
3. By these proceedings, the plaintiff seeks judicial review of the decision of the Review Panel dated 14 November 2021 pursuant to s 69 of the Supreme Court Act 1970 (NSW). The jurisdiction so conferred is confined to reviewing the legality of the decision (that is, to ensure that a decision-maker operates within its legal limits and applies the law), and not the merits of it. To this end, the plaintiff's (broad) complaint is that the decision is vitiated by jurisdictional error and error of law on the face of the record, and, therefore, should be quashed and redetermined in accordance with law.
4. The first defendant is the compulsory third-party insurer for the driver of the motor vehicle that caused the accident, and the only active defendant. It resists the relief sought by the plaintiff. The second defendant - the President of the Commission - and the third defendant - the Review Panel of the Commission, and its constituting members ('the Review Panel') - have filed submitting appearances.
5. The plaintiff moved on an Amended Summons filed in Court, with leave, on 9 August 2022. That Amended Summons deleted grounds 3 and 4, that were contained in the Summons filed 2 February 2022, and added grounds 5 and 6. The first defendant did not oppose the plaintiff relying upon ground 5 and, once argument was heard, ground 6. Following the hearing, the parties filed, with leave, further submissions: the plaintiff's submissions were dated 15 and 18 August 2022, and the first defendant's submissions were dated 16 and 17 August 2022. Those submissions were directed to grounds 5 and 6 of the amended summons.

Background

1. Following the motor vehicle accident of 22 August 2018, the plaintiff made a claim for damages against the first defendant under the Act.
2. On 5 September 2019, the plaintiff sought a concession from the first defendant that the injuries she sustained in the accident gave rise to a permanent impairment of greater than 10%. (As earlier noted, the significance of such a concession would be that the plaintiff would have an entitlement to damages for non-economic loss: see s 4.11 of the Act). On 11 November 2019, the first defendant advised that it did not concede that the plaintiff's degree of permanent impairment was greater than 10%. On 11 March 2020, the plaintiff sought an internal review of that decision by the first defendant, but the decision was affirmed by Certificate of Determination dated 7 April 2020. (The plaintiff was required to seek an internal review before referring the medical dispute to the Commission: s 7.19(1) of the Act).
3. In light of the medical dispute that had arisen, the plaintiff filed a Dispute Resolution Service Application Form with the Commission on 1 May 2020 (which, in 2020, was known as the State Insurance Regulatory Authority Dispute Resolution Service). By that application, the plaintiff sought an assessment of that medical dispute - stated to be "the degree of permanent impairment" of the plaintiff's injuries - under Division 7.5 of the Act. The first defendant filed a reply to the Application on 3 June 2020. Each party prepared submissions in support of their position. The plaintiff claimed that she sustained injuries - physical and psychological - as a result of the accident, and that the degree of permanent impairment was greater than 10%. The insurer, whilst accepting the plaintiff sustained injuries in the accident, disputed that the plaintiff's whole person impairment for those injuries was greater than 10% and, further, submitted that the assessable injuries were "not stable and therefore not capable of assessment".
4. The Application was referred for assessment by a medical assessor, Dr James Wong, (ss 7.20(1) and (2) of the Act), who assessed the plaintiff on 16 December 2020. Dr Wong prepared a medical assessment certificate (as required by s 7.23(1) of the Act), dated 12 January 2021, certifying that the plaintiff had injuries giving rise to a permanent impairment of 11%. Those injuries were described as: "Right knee injuries; Right ankle & subtalar joint injuries; Skin: injury & scars to right thigh; right knee, left knee, right Achilles, right ankle". Dr Wong also certified that the injuries to the plaintiff's chest and left hand had resolved and gave rise to no assessable permanent impairment.

The decision of the Review Panel

1. Before I deal with the Review Panel's medical assessment of the plaintiff, it is convenient to set out the relevant statutory provisions governing the assessment undertaken by them.

Medical assessment by a review panel: the statutory provisions

1. Section 7.26 of the Act deals with the review of medical assessments by a review panel. A review panel has medical assessments, undertaken by a single medical assessor, referred to it for review: s 7.26(1). In the present case the medical assessment involved assessing the plaintiff's degree of permanent impairment.
2. A review panel is to assess the degree of permanent impairment pursuant to s 7.21 of the Act. The "assessment of the degree of permanent impairment of an injured person…is to be made in accordance with the Motor Accident Guidelines ('the Guidelines')". Section 10.2(1) of the Act empowers the State Insurance Regulatory Authority to issue Motor Accident Guidelines. Here, the relevant guidelines issued were agreed to be Version 8 of the Guidelines, effective from 29 October 2021 to 16 December 2021. Further, the "assessed degree of permanent impairment is to be expressed as a percentage": s 7.21(1) of the Act.
3. When undertaking a medical assessment, a review panel "is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of new assessment of all the matters with which the medical assessment is concerned": s 7.26(6) of the Act. Having conducted that medical assessment, 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": s 7.26(7) of the Act.
4. If a review panel issues a new certificate, s 7.23 of the Act applies to that certificate. Section 7.23 deals with the status of medical assessments. Relevantly, following medical assessment of a medical dispute, "a certificate as to the matters referred for assessment" is to issue: s 7.23(1). That certificate "is to set out the reasons for any finding by the medical assessor or assesses as to any matter certified in the certificate in respect of which the certificate is conclusive evidence": s 7.23(7) of the Act.

Medical assessment by the Review Panel: the certificate

1. The Review Panel "considered afresh all aspects of the assessment under review" and, on 1 November 2021, undertook a re-examination of the plaintiff; revoked the certificate issued by Dr Wong. On that day, the Review Panel issued a new certificate under s 7.26(7) of the Act and assessed the plaintiff as having an 8% WPI in relation to: "Right knee injuries, Right ankle and subtalar joint injuries; Skin: scars to right knee, left knee, right Achilles, right ankle". The Review Panel considered that the chest and left hand injury had resolved, leaving no assessable impairment.
2. The Review Panel assessed the plaintiff's permanent impairments as: right ankle (3% WPI); right hindfoot (1% WPI); scarring (2% WPI); and, critically, in relation to the issues raised in the current application, considered that the plaintiff only had a 2% WPI in relation to the right knee due to the tibial plateau fracture. That is, in their assessment - unlike the assessment made by Dr Wong - the Review Panel did not find any "mild PCL laxity" in the plaintiff's right knee - with the consequence that no separate assessable permanent impairment arose. In all other respects, the plaintiff's impairment assessed by the Review Panel confirmed the impairments assessed by Dr Wong.
3. On 11 November 2021, the solicitor for the plaintiff requested a reconsideration of the Review Panel's decision, contending that the Review Panel "only assessed the cruciate ligament injury to the knee" but not the "collateral ligament injury". A response provided by the Commission accepted that the "late additional documents report of Dr Davis and the submissions were not provided to the Review Panel", and indicated that the "Review Panel will review the information and will provide the complete certificate".
4. The Review Panel issued a further certificate on 14 November 2021 (revoking the 1 November 2021 certificate) that gave specific consideration to the late material, including the report from Dr Davis dated 19 October 2021. The Review Panel confirmed the earlier assessment of the plaintiff's overall impairment to be 8% and further confirmed the assessed impairment of the right knee to be 2% WPI.

Judicial review: background principles

1. An administrative tribunal (of which the Review Panel is) falls into "jurisdictional error" if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material, or makes a wrong finding so as to exceed its authority. An error of this kind will invalidate any order or decision of the tribunal which reflects it: Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58; Kirk v Industrial Court of NSW (2010) 239 CLR 531, 571-572 [66]-[67]; [2010] HCA 1. Jurisdictional error is thus a category of error of law: "not any error of law, but only those errors which are 'jurisdictional' which provide a basis for relief": Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [9] ('Cervantes').
2. On the other hand, error of law on the face of the record includes all errors of law discernible on the face of the record. It is important to distinguish between these heads of review because, whilst jurisdictional error can be established by any admissible evidence, error of law within jurisdiction is confined to identification of error on the face of the record: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302, 307 [15] (Basten JA); [2012] NSWCA 13; AAI Limited v McGiffen (2016) 77 MVR 348 at [45] and [69] (Meagher, Simpson and Payne JJA); [2016] NSWCA 229 ('McGiffen'); AAI Limited v Chan [2021] NSWCA 19 at [45]-[46] (Leeming JA). Where the remedy sought is in the nature of a writ of certiorari, the "face of the record includes the reasons expressed by the... Tribunal for its ultimate determination": s 69(4) of the Supreme Court Act. In these circumstances, the record includes the Certificate issued by the Review Panel on 14 November 2021.
3. Should either error be established, an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [26] (French CJ, Crennan, Bell, Gageler and Keane JJ); [2013] HCA 43.
4. Even where error is found - irrespective of whether the error is jurisdictional or confined to an error of law on the face of the record - courts exercising judicial review have residual discretion to withhold relief: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 89 [5] (Gleeson CJ), 101-110 [43]-[62] (Gaudron and Gummow JJ), 136-7 [145]-[150] (Kirby J), 144 [172] (Hayne J), 156 [217] (Callinan J); [2000] HCA 57. Discretionary refusal of relief has been raised by the first defendant in relation to ground 6, and there is further discussion of principle when I address that argument: see [88]ff, below.

Ground 1: Failure to 'consider' the MRI of the plaintiff's right knee dated 23 August 2018

1. The plaintiff submitted that the Review Panel failed "to consider objective evidence… of the plaintiff sustaining a near complete tear of her right lateral collateral ligament". That evidence was a report on an MRI scan of the plaintiff's right knee, prepared by Dr Peduto and dated 23 August 2018. On the plaintiff's submission, the MRI report was a "diagnostic finding" which was required to be reviewed by the Review Panel: cl 6.18 of the Guidelines. During oral argument, the plaintiff argued that the MRI was "important" evidence that was not considered by the Review Panel. The plaintiff submitted that the failure to "adhere to clause 6.18(a)… is an error of law on the face of the record… [and] a constructive failure to exercise jurisdiction".
2. Clause 6.18(a) of the Guidelines provides that an assessment of permanent impairment involves "a review and evaluation of all the available evidence including …diagnostic findings". The plaintiff's submission was that compliance with the clause was mandatory such that the failure to refer to the MRI scan vitiated the decision of the Review Panel.
3. Before dealing with the ground, the following three matters should be noted.
4. First, the plaintiff specifically eschewed any complaint that the reasons of the Review Panel were legally inadequate.
5. Secondly, a constructive failure to exercise jurisdiction is not, relevantly here, "a mere failure to consider evidence", but "a failure to understand or determine a case or claim": Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] (Meagher JA; Payne and White JJA agreeing); Dranichnikov v Minister for Immigration & Multicultural Affairs; (2003) 77 ALJR 1088; [2003] HCA 26 at [24]. Here, however, there is no suggestion that the claim was not considered.
6. Thirdly, despite being directed to evidence, the plaintiff's submission employed language conventionally used to identify a factor that by law a decision-maker is bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 (Mason J); [1986] HCA 40. However, a ground that fixes upon the use made of relevant (or irrelevant) considerations is essentially concerned with whether the law has been properly applied: it is not a ground "centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts": Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 348 [74] (McHugh, Gummow and Hayne JJ); [2001] HCA 30. Contrary to what the plaintiff argued, error of this kind is not made out simply by identifying some evidence that was relevant to the Review Panel's task, and then determining whether it was referred to in their reasons: AAMI Limited v Ali [2012] NSWSC 969 at [47] (Beech-Jones J). Rather, to establish error giving rise to invalidity, it must be shown that the failure to consider the relevant material was a consequence of legal error about the function being exercised: Yusuf at 352 [82]. The position, it should be noted, is not different because the plaintiff sought to characterise the evidence not only as relevant, but 'important': Cervantes at [15].

Ground 2: Failure to comply with cl 6.71 of the Guidelines

1. The plaintiff's second ground of review is that the Review Panel "failed to adhere to clause 1.71 of the…Guidelines in failing to separately assess permanent impairment in respect of injuries to the ligaments in the plaintiff's right knee". During oral argument, the specific clause of the Guidelines relied upon by the plaintiff was corrected: the relevant clause was 6.71, not 1.71.
2. Clause 6.71 of the Guidelines provides that if "there is more than one injury in the limb, each injury must be assessed separately and then the WPIs combined".
3. The plaintiff argued that she sustained a ligament injury, as shown on the MRI scan dated 23 August 2018, that was a "separate and discrete injury to the plaintiff's right limb" - with the consequence, so the plaintiff argued, that the Review Panel was required to separately assess that injury in accordance with cl 6.71 of the Guidelines in order to determine whether any permanent impairment arose. Although the plaintiff asserted non-compliance with cl 6.71 of the Guidelines, as with Ground 1 of the Amended Summons, no attempt was made to argue the ground in line with the analysis identified in Golijan (see [37], above) and Ali (see [38], above).
4. Further, the plaintiff's submissions, at least in writing, did not address (a) what, on her argument, was actually required of the Review Panel in order to "comply" with cl 6.71; and (b) more importantly, where the precise error was evident "on the record", or elsewhere. During submissions, however, the plaintiff accepted that the assessment of impairment for any knee ligament injury could only be determined by testing laxity, i.e., by clinical examination of the knee, and not by what was apparently shown upon imaging.
5. Accepting this to be so, it is immediately apparent why this ground of review must fail. That is because the Review Panel did undertake an assessment of the ligaments in the plaintiff's right knee in order to determine permanent impairment: within the terms of cl 6.71, they separately assessed laxity to determine whether assessable impairment arose. That they did so, is clear from the following: 1. "On passive movement, no crepitus was detected in the right knee and no ligament laxity was noted. Both assessors agreed that there was no laxity in the… posterior cruciate ligament on testing". 2. "At the time of the examination by the Panel, no cruciate ligament laxity was detected…The Panel could not detect a mild PCL laxity as recorded by Assessor Wong". 3. The "[p]anel examined the right knee by both assessors and determined that at that time there was no mild laxity of any of the ligaments of the right knee and no crepitus noted on passive movement. Testing of ligaments was done on both knees with no difference in movement in comparison".

Grounds 3 and 4: grounds withdrawn

1. These grounds were withdrawn by the plaintiff.

Ground 5: Failure to comply with cl 6.41 of the Guidelines

Introduction

1. By this ground, the plaintiff argued that the Review Panel failed to comply with cl 6.41 of the Guidelines. Specifically, the plaintiff argued: (a) that there was "clear inconsistency" between the clinical findings of Dr Wong and the Review Panel in relation to the presence (or otherwise) of mild laxity: Dr Wong found "right knee-mild PCL laxity", whereas the Review Panel found no laxity; (b) that the clinical finding in relation to the presence/absence of laxity was an inconsistency that was required, by reason of cl 6.41 of the Guidelines, to be brought to the attention of the plaintiff; and (c) that the failure to do so amounted to "constructive failure to exercise jurisdiction".
2. This ground was argued by the parties on the basis that the Review Panel was required to undertake their assessment in compliance with this clause, with the consequence that invalidity results if they failed to do so.
3. In my view, the plaintiff fails to demonstrate reviewable error. That is because I do not accept inconsistency has been shown between the clinical assessments of Dr Wong (and Dr Davis) and the Review Panel, so as to engage cl 6.41 of the Guidelines.

Clause 6.41 of the Guidelines

1. Clause 6.41 of the Guidelines is in the following terms: Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of nonclinical 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.
2. Clause 6.41 appears (with cl 6.40) in the part of the Guidelines headed: 'Consistency'. The specific obligation cast upon the medical assessor by this clause - the requirement for the inconsistencies to be brought to the injured person's attention - is engaged where there is inconsistency between, on the one hand, clinical findings of the medical assessor and, on the other, information obtained through medical records or observations of nonclinical activities.
3. In Dominice v Allianz Australia Insurance Limited [2017] NSWCA 171 ('Dominice'), Simpson JA said, of an identically worded clause in guidelines issued under s 44(1)(c) of the Motor Accidents Compensation Act, that the clause required (at [60]): "a medical assessor who detects inconsistency between clinical findings and information obtained through medical records and/or observations of non-clinical activities to draw these inconsistencies to the claimant's attention in order to provide an opportunity for explanation."
4. Simpson JA explained the purpose of the clause in the following terms (at [61]): "[The clause] offers a guard against the drawing, unfairly, of conclusions about inconsistencies detected in a claimant's presentation. It can also, as in the present case, act as a guard against conclusions that may be unfairly drawn in favour of a claimant, against the interests of an insurer, where the conclusions (as here) are unsupported by medical records or history".
5. The clause, by its terms, is plainly directed to inconsistency. Unsurprisingly, that is the way it has been construed: Dominice at [60]-[61]; Insurance Australia Ltd v Warren [2019] NSWSC 1126 at [144] (Harrison AsJ); AAI Limited v Boga [2020] NSWSC 1903 at [106]-[126] (Cavanagh J); QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288 at [56]-[58] and [65] (Fagan J) ('Shah'). That is, cl 6.41 is operative when there is inconsistency found, not merely upon identification of a difference between a clinical finding at one assessment performed when compared to another: Shah at [65].

Discussion: the plaintiff's argument

1. The plaintiff's argument had two related limbs: first, there was inconsistency between Dr Wong's finding that there was mild PCL laxity and the Review Panel's finding that there was no PCL laxity; secondly, in the face of that inconsistency, "the Review Panel was required to bring this inconsistency to the plaintiff's attention to enable her to respond to it" in line with the decision of Fagan J in Dominice v Allianz Insurance [2016] NSWSC 1241 at [12].
2. It is important to put the plaintiff's argument in context.
3. Dr Wong, the original medical assessor, who examined the plaintiff on 16 December 2020, found, upon examination of the plaintiff's right knee, that the "posterior cruciate ligament was mildly lax" - which, when assessing impairment, he described as: "mild PCL laxity". When assessed by the Review Panel on 1 November 2021 - that is, nearly one year later - "no ligament laxity was noted. Both assessors agreed that there was no laxity in the… posterior cruciate ligament on testing". Later, it was noted that at "the time of the examination by the Panel, no cruciate ligament laxity was detected…The Panel could not detect a mild PCL laxity as recorded by Assessor Wong".
4. The following further matters should also be noted in relation to the clinical assessment undertaken by the Review Panel. Aside from the difference in relation to the PCL (a) in all other respects, the plaintiff's assessment of injury related impairment by the Review Panel was the same as Dr Wong's assessment; and, (b) the Review Panel found their clinical examination of the plaintiff was consistent - viz., the Review Panel specifically recorded: "No inconsistency was noted during our examination and interview".
5. In the present case, the Review Panel concluded that their examination of the plaintiff was consistent. Furthermore, there is nothing to suggest, and no basis to infer, that the different clinical assessments of the plaintiff's PCL recorded by Assessor Wong, and subsequently by the Review Panel, are inconsistent. I am not prepared to find that they are. That is particularly in circumstances where (as here) the examinations were performed nearly one year apart. In my view, the plaintiff has failed to demonstrate any inconsistency so as to engage cl 6.41.
6. The decisions in Dominice and Saraceni (the other authority relied upon by the plaintiff) involved quite different circumstances, and do not lead to a different conclusion, in my view. In each case there was a specific finding of inconsistency.

Ground 6: failure to comply with cl. 6.70 of the Guidelines

Introduction

1. By this ground, the plaintiff argued that the Review Panel was required to, but did not, comply with cl 6.70 of the Guidelines - with the consequence that it erroneously failed to assess permanent impairment in the plaintiff's right knee. In simple terms, the plaintiff argued that the clinical examination performed by the Review Panel demonstrated that there was a permanent impairment of the right knee based upon loss of flexion, and the failure of the Review Panel to assess that impairment was the product of an erroneous application by them of cl 6.70 of the Guidelines.
2. Before addressing the detail of this ground, three matters should be noted. First, the parties argued this ground of review on the basis that, when assessing permanent impairment, there was a legal requirement of the Review Panel to undertake its assessment in accordance with cl 6.70 of the Guidelines, with the consequence that invalidity arises from non-compliance - and I have proceeded on that basis. Secondly, although not the subject of submissions, s 7.21(1) of the Act is the statutory provision directing adherence to the Guidelines. That section relevantly provides: the "assessment of the degree of permanent impairment of an injured person…is to be made in accordance with the Motor Accident Guidelines". Thirdly, neither party relied upon, or referred to, any authority dealing with cl 6.70 (or any authority dealing with a substantially identical clause within an earlier iteration of the Guidelines).
3. I address this ground as follows: first, by identifying the relevant clauses within Part 6 of the Guidelines; secondly, by identifying the assessments of the plaintiff's right knee undertaken by Dr Wong and, thereafter, by the Review Panel; thirdly, by resolving the competing arguments in connection with the failure to assess impairment in accordance with Table 41; and, fourthly, by dealing with the first defendant's argument relating to discretionary refusal of relief.

Part 6 of the Guidelines: assessing permanent impairment

1. Part 6 of the Guidelines deals with "Permanent Impairment". The plaintiff specifically relied upon two clauses within that part to support this ground: cll 6.2 and 6.70.
2. Clause 6.2 of the Guidelines, relevantly provides: …A medical assessor undertaking impairment assessments for the purposes of the Act must read this Part in conjunction with the AMA4 Guides. This part is definitive with regard to the matters it addresses. Where it is silent on an issue, the AMA4 Guides should be followed…
3. The assessment of permanent impairment of the lower extremity is dealt with in cll 6.69-6.75 of the Guidelines. Clause 6.69 provides that an assessment of the lower extremity involves "physical evaluation that can use a variety of methods. In general, the method that most specifically addresses the impairment should be used…". Thereafter, cl 6.70 relevantly notes that it: may be possible to perform several different evaluations as long as they are reproducible and meet the conditions specified below and in the AMA4 Guides. The most specific method, or combination of methods, of impairment assessment should be used. However, when more than one equally specific method or combination of methods of rating the same impairment is available, the method providing the highest rating should be chosen. Table 6.6 can be used to assist the process of selecting the most appropriate method(s) of rating lower extremity impairment.

The assessments of the right knee

1. When the plaintiff's claim for permanent impairment was assessed by Dr Wong, he ultimately assessed the impairment of the plaintiff's right knee by reference to Table 64 in AMA4: as I have earlier noted, Dr Wong assessed the plaintiff as having a 2% WPI due to a tibial plateau fracture and a 3% WPI due to "[r]ight knee-mild PCL laxity": see [10], above.
2. The Review Panel ultimately used Table 64 in order to assess permanent impairment of the right knee, although it did give specific consideration to the use of Table 41 in AMA4: "The right knee was assessed using range of movement and table 41 of AMA fourth edition, and table 64. There was no assessable impairment with range of movement and table 64 an undisplaced tibial plateau fracture is 2% WPI. At the time of the examination by the Panel, no cruciate ligament laxity was detected. Therefore, there is 2% WPI for the right knee…"

The failure to assess impairment in accordance with Table 41: the arguments

1. I have earlier outlined the plaintiff's argument: see [69], above. The detail of the argument is as follows.
2. Clause 6.70 of the Guidelines requires a medical assessor, when more than one equally specific method of rating the same impairment is available, to adopt the method providing the highest permanent impairment. In this case, the plaintiff argued that the method that provided the "highest rating" of impairment was based upon "Range of Motion" (Table 41 in AMA4) and not impairment, based upon "Diagnosis-based Estimates" (Table 64 in AMA4). That is because assessing permanent impairment by Table 41 yielded a 4% WPI for the right knee, whereas assessing permanent impairment under Table 64 yielded a 2% WPI for the right knee (based upon the tibial plateau fracture, but no laxity). Accordingly, the plaintiff argued there was a failure to comply with cl 6.70 of the Guidelines and that non-compliance constituted reviewable error.
3. In my view, as the plaintiff argued, the statement by the Review Panel - that there "was no assessable impairment with range of movement" - was erroneous. That was because the Review Panel assessed flexion in the right knee as 105°. That assessed range of motion (relevantly a restriction), in fact, entitled the plaintiff to a 4% WPI applying Table 41 - a finding that follows because it satisfied the criteria in Table 41, being flexion: "Less than 110°". Thus, if Table 41 applied, the plaintiff's right knee was 4% WPI, rather than the 2% WPI by applying Table 64.
4. On this basis, the plaintiff further argued that the Review Panel was required to assess the plaintiff's permanent impairment in her right knee, consistent with the directive in cl 6.70 of the Guidelines, adopting Table 41, because that method clearly established the "highest rating" of impairment.
5. The first defendant accepted that the statement made by the Review Panel - to the effect that there was no assessable impairment with range of movement - was wrong, and also accepted that an assessment applying Table 41 would yield a 4% WPI for the right knee. However, the first defendant argued that the application of the Guidelines was a matter for the Review Panel and, in particular, it was a matter for the Review Panel to use the Diagnosis-based Estimates (Table 64) to assess impairment.

Discretion to refuse relief

1. The parties accepted that if reviewable error is demonstrated, the Court retained - irrespective of whether the error was jurisdictional or confined to error of law on the face of the record - a discretion to refuse relief. The discretion - a consequence that flows from a finding of error - is, of course, a separate and distinct step from the identification of error. It is unnecessary, in view of the way the matter was argued, to identify, and discuss, the various categories or instances where relief has been refused as a matter of discretion: the first defendant simply relied upon futility as the basis to resist the granting of relief.
2. The first defendant's argument was that, even if reviewable error has been demonstrated in connection with the Review Panel's use of Table 64, the Court should, as a matter of discretion, decline relief because it would be futile to do so. In other words, even if the Review Panel had utilised Table 41, it would only have secured the plaintiff a 10% WPI assessment, and assessment that did not confer the plaintiff any entitlement to damages for non-economic loss.
3. In my view, relief should not be withheld, as a matter of discretion.
4. First, the circumstances where, upon demonstration of jurisdictional error or error of law on the face of the record, relief has been refused are "rare": NRMA Insurance Limited v Ainsworth (2011) 58 MVR 187; [2011] NSWSC 344 at [98]-[99] and [103] (Rothman J) ('Ainsworth'). That this is so, reflects a fundamental principle: parties affected by the exercise of administrative power are entitled to have their rights determined in accordance with law: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [56] (Gaudron J); [2000] HCA 5; Ainsworth at [99]. The plaintiff, in my view, is entitled to have her claim fully and properly assessed in accordance with law. In Aala, it was said that the discretion to refuse relief "is to be exercised against the background of the animating principle" identified: at [55] (Gaudron and Gummow JJ).
5. Secondly, having regard to the first defendant's argument, the critical question is whether "no useful result could ensue" - it thus directs attention to the utility of another hearing: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400; [1949] HCA 33 ('Ozone Theatres'); Hossain at [74]. That approach is consistent with a range of decisions of this Court, including Pillay; McHenry v Insurance Australia Ltd (2019) 87 MVR 298; [2019] NSWCA 68 at [77]-[79] (Harrison J); Norrington v QBE Insurance (Australia) Ltd (2021) 96 MVR 170; [2021] NSWSC 548 at [56]-[58] (Brereton JA).

Orders

1. As a result, I make the following orders: 1. Order in the nature of certiorari moving into this Court and quashing the certificate issued by the third defendants, constituting a Review Panel of the second defendant, dated 14 November 2021. 2. Order that proceedings PIC matter number R10387530 is remitted to the second defendant to be referred, under s 7.26(6) of the Motor Accident Injuries Act 2017 (NSW), to a review panel to be determined according to law. 3. Order that the first defendant pay the plaintiff's costs of the proceedings in this Court. 4. Grant liberty to either party to apply to have that costs order varied, upon application made in writing to the associate to Chen J by 19 October 2022, 5pm.

Endnote

1. Part 6 of the Guidelines is based upon the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th edition ('AMA4'). Clause 6.2 of the Guidelines provides that a medical assessor, when undertaking in permanent impairment assessments, must read Part 6 of the Guidelines "in conjunction with the AMA 4 Guides. Where it is silent on an issue, the AMA 4 Guides should be followed…". 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: 12 October 2022