After reviewing the list of injuries as submitted by the parties, examining the claimant and reviewing the accompanying documentation, it is determined that the following injuries WERE caused by the motor accident:
* Cervical Spine - Soft tissue injury/nerve injury/scarring
* Thoracic Spine - Soft tissue injury
* Right Shoulder - Soft tissue injury/nerve injury/scarring
* Right Arm - Strain
* Right Elbow - Soft tissue injury." (Emphasis added.)
20 As a consequence of the foregoing, the Assessor determined that there was a minor impairment to the Cervicothoracic spine resulting in a Whole Person Impairment of 5% arising from the motor vehicle accident. No other injury, as identified in the Statement of Reasons, gave rise to any Whole Person Impairment. Therefore, the Certificate of Determination of Assessment that accompanied the Statement of Reasons certified a Whole Person Impairment not greater than 10%, which certificate was conclusive evidence denying to Ms Garcia the capacity to recover damages for non-economic loss.
Consideration
21 Ms Garcia relies upon the statement of principle in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 as to the existence of jurisdictional error. Counsel, on her behalf, submits that jurisdictional error occurs when a tribunal identifies the wrong issues; asks itself the wrong questions; ignores relevant material; relies on irrelevant material; or, at least in some circumstances, makes an erroneous finding or a mistaken conclusion.
22 Frankly, it is unclear why the plaintiff has taken upon herself the more onerous task of establishing jurisdictional error. An error of law, on the face of the record, in the ultimate determination of a tribunal (including, in this case, the Assessor), is sufficient ground for the issue of orders in the nature of certiorari. The Assessor is required to act judicially, in the sense that the term is used in establishing a basis for the issue of certiorari. The issue of the certificate of assessment is the ultimate determination of the Assessor. If the wrong test were to have been utilised to determine causation, then there would be an error of law. For the purpose of orders in the nature of certiorari, the face of the record includes reasons for the decision: see generally Supreme Court Act 1970, s 69(3) and s 69(4).
23 On the other hand, the error for which Ms Garcia contends may not be the application of the wrong test in making the decision, but an error of law in applying the right test. In other words, the test that must be applied is whether the motor vehicle accident caused the injury. The Assessor has asked himself that question and utilised that test. The submission of Ms Garcia, in essence, is that there was an error of law in the determination of that issue.
24 Ordinarily, causation is a question of fact, not law: see March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 515, 524. However, an error of law would occur, if the tribunal misunderstood the principles to apply in assessing causation by determining whether, in this case, the motor vehicle accident was not a major cause or the sole cause of the injuries. It is sufficient for the tortious act to have contributed to the damage; it need not be the sole cause. Nor need it be the major cause: see March, supra; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.
25 The Guidelines for the Assessment of the Degree of Permanent Impairment, issued by the Authority, refers the Medical Assessor to the common law principles concerning causation and relevantly summarises the approach as:
"There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible."
26 For present purposes, the above-cited summary in the Guidelines is sufficient. If the motor vehicle accident, subject to assessment, were to have contributed materially to the injuries that gave rise to the operation, then the damage caused by the operation (the lumbar laminectomy) has been materially caused by the motor vehicle accident: see Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 at 529. The necessary assumption in the foregoing is that Ms Garcia acted reasonably in undergoing the operation.
27 Ultimately, whether there has been an error of law depends upon a proper construction of the Statement of Reasons. The relevant parts have been recited above. The parties dispute its proper interpretation. In determining the approach that the Assessor has taken, it is impermissible to trawl through the Statement of Reasons, looking for error, or to apply an overly strict or overzealous use of language: see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
28 There are some ambiguities in the Statement of Reasons and some inconsistencies, which are crucial to the resolution of the issue between the parties. Some of the inconsistencies are issues of fact, with which the Court is not currently concerned. For example, it is difficult to understand how, as a matter of fact, neck and left-arm pain translates into symptoms on the right side, without any cause arising from the motor vehicle accident. However, those factual inconsistencies may assist in the proper determination of the intention of the Assessor on the issues of substance.
29 One aspect of the Statement of Reasons is that the Assessor makes clear that the pre-existing condition and symptomatology, arising from degenerative change, was clinically significant. But significance is not the test. The pre-existing injury would need to be the only, or the operative, cause of the injury. The Assessor notes that the initial aggravation had ceased and her clinical condition had stabilised. Yet the Statement of Reasons does not indicate whether it had stabilised in a condition worse than it had started.
30 This confusion is exacerbated by the comment of the Assessor that the pre-existing conditions have "significantly influenced" the course of the current events and clinical presentation. It seems neither party disputes that proposition. But, at least implicitly if not expressly, such a statement is consistent only with the motor vehicle accident being another "influence" on the current events and clinical presentation.
31 The expression that caused the most debate between the parties was the use of the term "per se" and the sentence that contains it. The term "per se" is, itself, ambiguous. It is often used incorrectly. It may mean "by itself" or "in itself" and often means "intrinsically": see The Macquarie Dictionary, 3rd ed (1991).
32 If "per se" were to have been used by the Assessor to mean "by itself", it discloses an error of law in the determination of causation. If it is being used, perhaps incorrectly, to mean "as such", then error is not necessarily disclosed. The confusion is increased by the use of the word "directly" in the same sentence.
33 Properly construed, and construing the Statement of Reasons as a whole, the Assessor considered there was a temporary exacerbation, which had disappeared, and that Ms Garcia's clinical condition had stabilised. That stabilised clinical condition was influenced by two factors: significantly by her pre-existing conditions and otherwise by the motor vehicle accident. But the motor vehicle accident did not, by itself, cause the pathology, which was mostly a result of the pre-existing condition. This construction is supported by the significant alteration in symptomatology, namely, the existence of right-sided pain (that is in the neck and right arm) and increased levels of pain that occurred only after the motor vehicle accident.
34 As a consequence of the foregoing, the Assessor has determined causation without regard to the motor vehicle accident, as an operative cause of the injuries, including the injuries from undergoing the resulting operation. This is to misunderstand the nature of causation and to disregard, in the assessment thereof, an operative, but not major, cause of injury. This is an approach, which discloses error of law. Appropriate orders will issue in relation thereto.
35 The other issue raised by Ms Garcia relates to the proper interpretation of s 62(1) of the Act, particularly the meaning of the term "additional relevant information about the injury". The issue raised is not as simple as the parties seem to have treated it. Nice questions arise as to whether an error in the determination of such a question would be an error of law that would give rise to the issue of certiorari, or an error of law, at all. It may be that a failure to take into account the subsequent opinion, if it were such information, would be a failure to take into account a relevant consideration in the exercise of what seems to be a discretionary power. In those circumstances, the failure to consider the additional information would be a jurisdictional error: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.
36 The High Court of Australia cited, with approval, a summary of general propositions relating to the delineation of a question of law. That summary was identified, as general propositions, by the Full Court of the Federal Court of Australia in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. Leaving aside the qualification by the Full Court of the Federal Court of the fifth proposition there described, the five identified general propositions are:
"1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact.
3. The meaning of a technical legal term is a question of law.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." ( Pozzolanic , supra, at 287, cited with approval in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395.) (Citations omitted.) (See also AGL v Valuer-General (1940) SR (NSW) 126 at 82; Williams v R [1986] HCA 88; (1986) 161 CLR 278; Attorney-General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210; Haider v JP Morgan Holdings Aust Ltd Trading As JP Morgan Operations Australia Ltd [2007] NSWCA 158; Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318; HIA Insurance Service Pty Ltd v Kostas [2009] NSWCA 292.)
37 It would seem that the determination, whether a subsequent medical opinion as to the causation of the injuries is "additional relevant information about the injury", requires the Assessor to give meaning to a technical legal term or to determine the effect or construction of a term, the meaning or interpretation of which is established, each of which is a question of law.
38 The proper construction of the term in s 62(1) of the Act is a question of law. The determination, whether, in any particular case, the information is "additional", or, whether, in another case, the material is "information", will be a question of fact. The term "additional information" about the injury does not include a restatement of information already received. Nor does it include a summary of information already received. It does include new information about an injury, even though it does not describe the injury or some other feature of the injury. An expert medical opinion as to the cause of injury is relevant evidence and is "about the injury". Further, to the extent that an opinion has not previously been expressed (by any expert) it results in the opinion being "additional information" not previously considered. In those circumstances, an opinion expressed by a medical expert, in circumstances where the Assessor had not previously received expert opinion of that kind, would be "additional relevant information about the injury". Such an opinion would satisfy one of the pre-conditions prescribed in s 62(1)(a) of the Act.
39 In these proceedings, the decision of the Authority, made on 8 August 2008, refused to refer Ms Garcia's matter for medical assessment on a further occasion, because the Authority considered that the new medico-legal opinion of the medical expert could not be "additional relevant information about the injury". Such a decision discloses an error of law, because it misconstrued the meaning of the term "additional relevant information about the injury".
40 The medical opinion upon which Ms Garcia relied for that purpose were the opinions of Professor Fearnside, of 14 December 2007, the reports of Dr Maniam, of 10 August 2007 and 14 November 2007, and the report of Dr Steel, of 18 December 2007, each of which opine that the cause of the current injuries, at least in part, derives from the motor vehicle accident. No opinion to that effect (by any medical practitioner) was previously before the Assessor.
41 The provision of the additional information does not require that the opinion of those medical practitioners be preferred over the opinion of the appointed medical assessor. The Assessor continues to have the capacity to form her or his own opinion. But an opinion of that kind, if no such opinion was previously available, is additional information relevant to the Assessment, and is relevant additional information "about the injury". The misconstruction of the jurisdictional precondition in s 62(1)(a) of the Act is an error of law in the ultimate determination of whether to refer Ms Garcia for a further assessment. As a consequence, it is amenable to prerogative writ, and appropriate orders will issue.
Conclusion
42 On the basis of the foregoing considerations, there are two errors of law disclosed in the two different steps of the Authority. Firstly, the Assessor has, on a proper construction of his Statement of Reasons, determined the Assessment in a manner that involved an error of law, namely, the proper determination, and test, for causation under the Act.
43 Secondly, the Authority, in refusing to refer Ms Garcia for further medical assessment, has acted on a misunderstanding of the proper construction of the Act, which misunderstanding also discloses an error of law.
44 The Court makes the following orders: