Gwyther v Insurance Australia t/as NRMA Insurance & Ors

Supreme Court of NSW|2018-07-31|Before: Wilson J

Judgment

HER HONOUR: Invoking the supervisory jurisdiction of this Court that is provided by s 69 of the Supreme Court Act 1970 (NSW), the plaintiff, Elsie Gwyther (sometimes referred to in the evidence as Elise Gwyther), seeks judicial review of a decision made by the third defendant, the Medical Assessors Review Panel ("the Review Panel" or "Panel"). The Review Panel was convened pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"), as part of a claim relating to a motor accident.
By way of Summons, filed on 24 April 2018, the plaintiff seeks the following orders: 1. An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the decision made by the medical assessors review panel, made on 25 January 2018 purportedly pursuant to sections 61 and 63 of the Motor Accidents Compensation Act 1999 (NSW) determining that the injuries sustained by the plaintiff in a motor vehicle accident in NSW on 5 April 2016 did not give rise to a whole person impairment which, in total, was not greater than 10%. 2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the decision. 3. An order in the nature of mandamus remitting the matter reallocation to a differently constituted medical assessors review panel for determination of the matter according to law. 4. If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on the decision until the final determination of these proceedings or until further order. 5. Any further or other order as the Court thinks fit. 6. Costs.

Background to the Proceedings

The plaintiff suffered injuries in a motor accident on 5 April 2016 and subsequently made a claim under the Act in respect of those injuries. The first defendant, Insurance Australia Limited t/a NRMA, is the compulsory third party insurer on risk with respect to the driver responsible for the crash. Liability has been denied and a certificate of exemption granted. Court proceedings have not commenced.
A dispute arose between the plaintiff and the first defendant as to the percentage of whole person impairment ("WPI") suffered by the plaintiff as a result of the accident. The issue is whether there is a causal connection between the crash and the claimed injuries.
On 18 April 2017, the plaintiff lodged an application with the Medical Assessment Service ("MAS") of SIRA for assessment of her WPI. On 31 July 2017, she was examined by assessor Dr Ian Meakin, appointed by the Authority, and was issued with a certificate (on 22 August 2018) determining her WPI to be 14%. Dr Meakin found that the plaintiff had sustained injury to her left wrist, left shoulder, right shoulder, and scarring on her skin, as a consequence of the accident.
On 4 October 2017, following an application by the first defendant for review of Dr Meakin's assessment, the Proper Officer of the Authority referred the matter to the Medical Assessors Review Panel, the third defendant, pursuant to s 63 of the Act. The Panel was comprised of three medical assessors, Dr Thomas Rosenthal, Dr Ian Cameron and Dr Tai-Tak Wan. For reasons not elucidated in the Review Panel's reasons, only Drs Rosenthal and Cameron were present to examine the plaintiff on 16 January 2018.
On 25 January 2018, the three members of the Review Panel issued a Certificate ("the new certificate") determining that the plaintiff suffered injury to her left shoulder and left wrist, but not to her right shoulder, as a result of the accident. The certificate issued by Dr Meakin was revoked by the Panel. The new certificate gave the plaintiff's WPI figure as 8%, being a figure not greater than the critical threshold of 10%, and leaving the plaintiff ineligible to claim for non-economic loss.

The Plaintiff's Case

The plaintiff read her affidavit of 23 June 2018, together with an affidavit from her solicitor, Stephen Firth, of 4 June 2018.
The plaintiff affirms that she was involved in a motor vehicle crash on 5 April 2016, sustaining injury to her left wrist and both shoulders. She asserts that she complained to ambulance officers who attended her at the scene of an injury to her wrist and pain in both shoulders, and repeated that complaint to staff at Nepean Hospital, where she was taken for treatment.
The plaintiff's wrist was fractured, and surgical repair was required. That was carried out on 6 April 2016. The plaintiff says that she continued to complain about her "shoulders" but was told that her wrist was the priority. She was discharged home on 7 April 2016. On seeing her general practitioner the following day, Ms Gwyther affirms that she again mentioned her shoulders, and asked what would be done for her shoulders.
On 16 January 2018, the plaintiff attended for a MAS examination, conducted by two doctors, Drs Cameron and Rosenthal. She says that she told the doctors that she had complained about her shoulders at Nepean Hospital, and specifically raised the issue with the surgeon who performed the procedure on her wrist, and later with her GP. She says she was not warned by the Panel doctors that her account of early complaints of pain in both shoulders may not be accepted.
In his affidavit, Mr Firth sets out the procedural history of the plaintiff's claim, and produces a copy of the new certificate of 25 January 2018.
The new certificate recorded the injuries caused in the motor accident as being, Left wrist - distal radial and ulnar fracture Left shoulder - soft tissue injury Skin - surgical scarring.
The Review Panel met in conference on 23 November 2017 and considered all relevant documentation. The nature of the dispute between claimant and insurer was noted to be the question of causation of the claimed right shoulder injury, with the insurer referring to the absence of any reference to a complaint of right shoulder pain following the crash, and a pre-existing right shoulder injury; whilst the claimant pointed to a complaint about a month after the crash, and noted that the absence of a contemporaneous record of complaint should not be determinative.
The Panel noted Dr Meakin's assessment, and his conclusion that 4% of WPI was attributable to soft tissue injury to the right shoulder, with restriction of movement. The insurer's account of the crash was that the plaintiff was making a U-turn when her vehicle was "T-boned" by an on-coming car, leading to her left arm becoming caught in the steering wheel. Contemporaneous documentation recorded the plaintiff's early complaints as referring to her left wrist and left shoulder. The clinical records maintained by the plaintiff's GP recorded only left shoulder and left wrist pain, until 2 May 2016, when the plaintiff complained of pain in both shoulders.
Hospital and surgical treatment notes referred only to left shoulder and wrist pain. A large supraspinatus tear was found in the left shoulder. No mention was made of any condition of the right shoulder.
The Panel referred to the plaintiff's Personal Injury Claim form of 14 June 2016, which reported only left wrist and left shoulder injury as injuries sustained in the accident. No right shoulder injury was referred to.
On the basis of the review of documentation, The Panel […] decided re-examination of the claimant was thus necessary to allow procedural fairness to question the claimant in regards to the absence of any record of right shoulder injury or condition.
The examination was conducted by Drs Cameron and Rosenthal on 16 January 2018 (recorded on the first page of the new certificate as 18 January 2018). The plaintiff gave an account of the crash in which she was involved and claimed both shoulders and her left wrist were injured. Ms Gwyther asserted to the doctors that she had reported those injuries. When the absence of any reference to a right shoulder injury in the Nepean Hospital records was drawn to her attention, she said she could not understand why her right shoulder injury was not recorded. The absence of a contemporaneous record of such an injury in the clinical notes of the plaintiff's GP was also pointed to, and the plaintiff claimed she had told her doctor about both shoulders. Later investigations [in 2017] of the right shoulder ordered by her GP found a full thickness tear of her right supraspinatus tendon.
Ms Gwyther reported a fall in September 2016, but asserted she fell on her left side, not her right.
The plaintiff presented to the assessors with a 5 centimetre scar with "very slight trophic changes", but without suture marks, adherence, or contour changes, on her left wrist. The examination of her shoulders revealed "quite a variable range of motion" and there were "significant inconsistencies" that were brought to the plaintiff's attention. The plaintiff was asked about inconsistencies between the January 2018 examination and that conducted by Dr Meakin, and said that her shoulders were "much worse" on the day of the examination by Drs Cameron and Rosenthal because she had hung laundry out the previous day, causing a "flare-up" of pain in both shoulders.
Recording its deliberations, the Panel noted that there was adequate contemporaneous evidence to support the causal connection between the left wrist and left shoulder injuries and the motor vehicle crash. The plaintiff had made contemporaneous complaint of both, and both were recorded in hospital and GP notes. There was no contemporaneous reference to a right shoulder injury: it was not recorded by hospital staff; and nor was it recorded by the plaintiff's GP before a reference to "pain" on 2 May 2016, followed by nothing until 2017. The Panel noted that a certificate issued by the GP on 20 April 2016 recorded only the wrist fracture, with a further certificate from the same doctor issued on 9 June 2016 referring only to left wrist and shoulder injury. The Panel concluded, "The subsequent investigation and treatment to the right shoulder is not considered to be causally related to the MVA after considering the documentation and the mechanism of injury. The Panel have noted the claimant claims that she reported a right shoulder injury to the hospital, but the panel preferred to rely on the written documentation more than just the memory of the claimant. In addition the personal injury claim form also only recorded the injury to the left shoulder.
WPI for the left shoulder and wrist was assessed at 8%; 0% WPI was allocated to the small wrist scar.
The Review Panel found that the motor accident was not the cause of the claimed soft tissue injury to the right shoulder.

The Plaintiff's Argument

The plaintiff's overarching complaint is that the Review Panel was in error in assessing WPI as not greater than 10%, a decision reached by the Panel because it treated the absence of any documentary record of a contemporaneous complaint of injury or pain in the right shoulder "as being determinative of the existence of a causal connection between the Accident and the right shoulder injury" (emphasis in plaintiff's written submissions).
The significance accorded by the Panel to the documentary record is established, it is submitted, by the fact that no further consideration was given by it to the tear to the right shoulder supraspinatus discovered in August 2017 [16 months after the crash].
The plaintiff argues that, further, she was denied procedural fairness by the Panel in preferring the reliability of the documentary record, because she was not notified of its intention to give preference to that material, or given an opportunity to address the issue. It is said that the Panel's failure to draw inconsistencies to the plaintiff's attention was a breach of clause 1.43 of SIRA's Permanent Impairment Guidelines of 1 October 2007.
It is argued that the Reasons accompanying the new certificate are inadequate to expose the Panel's reasoning process in concluding that the right shoulder injury was not caused by the April 2016 motor vehicle crash, and thus there is error.
Finally, the plaintiff contends that the failure of all three assessors to attend upon the plaintiff and participate in the medical examination on 16 January 2018 vitiated the process, as the "cumulative effect" of s 63 of the Act, cl 1.20 of the Permanent Guidelines, and Chapter 16 of the Medical Assessment Guidelines is to require all three Review Panel members to conduct any examination carried out as part of its determinative process. This is the only argument against which a contrary position is advanced, by the second defendant.

SIRA's Argument on the Presence of all Panel Members

The second defendant argues that the power of a Review Panel to confirm, revoke, or replace a certificate issued by a single medical assessor is predicated upon a "new assessment" being conducted, and not upon the number of assessors present at any medical examination of the claimant. Each Panel member is required to separately come to his or her view as to the medical assessment matter, with a view to jointly concluding whether the original certificate is to be confirmed, or revoked and replaced. The second defendant argues that the question to be asked is whether the new certificate is the product of a "new assessment" of the kind required by s 63(3A) of the Act. SIRA contends that the Motor Accident Medical Guidelines do not alter that position.

The Contemporaneous Documents Ground

The plaintiff argues that the Review Panel made the same sort of error as was held by RS Hulme J in Bugat v Fox [2014] NSWSC 888 at [32] to be an error on the face of the record, in giving determinative significance to the absence of any documentary support for the plaintiff's claim of a right shoulder injury.
I do not agree that that was what the Panel in fact did.
The Panel's task was to form its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise to the information before it. The Panel had to consider whether all of the injuries complained of by the plaintiff, including the right shoulder injury, were sustained in the motor vehicle crash such as to be relevant to the overall assessment of injury.
It is clear from the reasons that issued with the new certificate that the Panel had regard to the plaintiff's asserted memory of complaining to ambulance officers, hospital staff, and her own GP of right shoulder pain, as well as the less controversial left wrist and shoulder injuries, but was not persuaded by her claim, in light of the other evidence. The other evidence included, but was not confined to, the contemporaneous records.
The Panel was entitled to determine for itself what weight should be given to the contemporaneous records. The Panel concluded that it preferred the evidence of the documentary record to the memory of the plaintiff. No doubt the multiple sources of the records contributed to that preference, and to the Panel's conclusion that the documentary evidence was more reliable than the plaintiff on this aspect of the matter.
It can be inferred from the reasons that the Panel concluded that, had the plaintiff sustained a right shoulder injury in the crash, she would have been in pain, and would have complained about it, and at least one of the ambulance officers, hospital staff, or the plaintiff's GP, would have recorded that complaint. In circumstances where none of those who could ordinarily be expected to record symptoms complained of by a patient had in fact done so, it was open to the Panel to conclude that no complaint was made until well after the motor vehicle crash. The Panel was entitled to infer from that fact, that the plaintiff did not sustain her right shoulder injury in the crash.
That there was evidence that, some sixteen months later, the plaintiff was found to have a tear to the supraspinatus tendon in her right shoulder, was not something the Panel was obliged to explain. It was for the plaintiff to establish the causal link between her right shoulder complaint, and the April 2016 crash.
The approach taken by the Panel in reaching its conclusion was not to treat the documentary evidence as "determinative"; it was to follow a legitimate path of reasoning to reach a conclusion sustained by evidence. There is nothing remarkable about determining a disputed fact by reference to sources of evidence inclusive of contemporaneous statements made, or not made, by the person who asserts that the fact exists. That is ordinarily a fruitful and reliable approach: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548F-549D per Hope JA; Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 per Lord Pearce; cf. Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA.
It is clear, however, that the Panel's conclusion in that regard referred to and was supported by other evidence, including what was referred to as "the mechanism of injury". The mechanism of injury was the fact that the plaintiff's left arm became entangled in the steering wheel of her car; there was no report of any occurrence that could have led to an injury to the right shoulder. Another relevant piece of evidence to which the Panel referred in its reasons is the fact that the plaintiff's original claim form made no reference to a right shoulder injury.
I am unable to accept the plaintiff's submission that the Review Panel impermissibly allowed the contemporaneous documentary record to be "determinative".

Denial of Natural Justice Ground

The plaintiff contends that she should have been warned that the Panel might not accept her account of making immediate complaint of right shoulder injury and been given an opportunity to address it. That contention ignores the circumstances surrounding the review conducted by the Panel, and the reason for it.
Among the material listed by the Panel in its reasons as available to, and considered by it, was the "Application form and attached documents" and "Reply form and attached documents". Under a heading "Disputes Identified by the Parties" the Panel cited the disputes between the claimant and insurer as, Permanent Impairment The Form 5A from NRMA disputed the causation of the right shoulder and thought the Assessor Meakin failed to apply the correct guidelines in regards to causation. They believed the Assessor did not properly review and consider all of the available evidence, and noted a left shoulder injury that occurred from a fall after the subject accident. It was noted that Assessor Meakin had awarded 4% WPI for the right shoulder and 9% WPI for the left shoulder and wrist. They also believed there was a pre-existing condition, as well, in the right shoulder prior to the accident which was not accounted for. The Form 5R from the claimant noted that the absence of complaints regarding the shoulders immediately following the accident is not a determination of causation quoting 'Bugat v Fox' and they noted that pain in both shoulders was recorded on the 2 May 2016 which was approximately one month after the accident. They disputed the claim from NRMA in regards to shoulder injuries not being caused by the accident particularly the right shoulder.
As can be seen from the summary given in the third dot point of the claimant's response to the insurer's request for a Review, the claimant well understood that the insurer disputed that her right shoulder condition was attributable to the April 2016 accident, and she had specifically stated that the absence of a record of any contemporaneous complaint from her should not be considered by the Panel as determinative. That is, the plaintiff was on notice of the nature of the dispute with her claim, and she was also on notice that a salient feature of determining the dispute was the fact that no record of any complaint by her of right shoulder pain existed before 2 May 2016.
Further, she was specifically asked by the doctors who conducted the medical examination about the absence of any record by Nepean Hospital staff of her complaint of pain. She could give no explanation for that, other than to say she did not understand it. It is apparent from the reasons that the doctors also referred Ms Gwyther to the absence of any record of a right shoulder injury (or pain) made by the surgeon who conducted the procedure on the plaintiff's wrist, or any contemporaneous record by her own doctor.
In light of that information, it is difficult to see how a claim of procedural unfairness could be sustained. It is apparent that the very reason for the Review was a dispute as to causation of the right shoulder injury, in which the contemporaneous documentation was of significance.
I am satisfied that the inconsistencies between records of her contemporaneous account of injury, including her own claim form, and her more recent claims of right shoulder injury attributable to the crash, were brought to the plaintiff's attention, and she was given an opportunity to comment upon that issue. She took advantage of the opportunity in her response to the insurer's request for a Review, and in her assertions to the assessors on 16 January 2018.
It was not that the Review Panel denied the plaintiff procedural fairness; it was that, having given her the opportunity to substantiate her claims with respect to her right shoulder condition, the Panel preferred evidence that did not support those claims. Since the inconsistencies between her contemporaneous account of events as recorded by others, and her more recent account of right shoulder injury, were drawn to the plaintiff's attention by the Panel, there was no breach of cl. 1.43 of the SIRA Permanent Impairment Guidelines. It was open to the Panel to proceed as it did, and to make the determination it did.

Adequacy of Reasons Ground

The plaintiff complains that the Panel's reasons "do not rise to the requisite standard" and, as a consequence, the actual path of reasoning followed by it is not clear.
I do not accept that that complaint has been made out.
It is to be recalled that the Panel members are medical and not legal specialists. The task of the Panel is to conduct a new assessment (s 63(3A) of the Act), and confirm or revoke the certificate, and issue a new certificate as appropriate (s 63(4) of the Act.) As to reasons for the determination made, the obligation on the Review Panel is to set out "the actual path of reasoning" by which it arrived at the assessment made: Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 at [48], Frost v Kourouche [2014] NSWCA 39.
Reasons given by an administrative decision maker are not to be read "minutely and finely with an eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280). It is appropriate to give some latitude to such reasons, and to give them a "beneficial construction": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272. Reasons do not have to be extensive, although where one conclusion is preferred by another that is open or contended for, it is necessary for the reasons to explain the basis of the preference: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]-[122] per Basten JA.
Bearing those principles in mind, I do not conclude that the reasons were inadequate to expose the path of reasoning followed by the Review Panel. It is clear from the reasons that, with the nature of the dispute as to causation of the right shoulder injury well understood by the Panel members, the documentary evidence was reviewed, and that material, coupled with the evidence of the plaintiff's presentation at the January 2018 medical examination, including the history given there by her, was considered as a whole. The reasons make clear that the Panel had particular regard to a number of features when concluding that the right shoulder injury was not shown to be caused by the April 2016 crash. Those features were: 1. The complete absence of any record of a contemporaneous complaint of pain or injury in her right shoulder made by the plaintiff to health care personnel, when it might ordinarily be expected that such a record would exist had a complaint been made; 2. The fact that a contemporaneous record was ordinarily reliable, and generally more so than the memory of an individual, here, the plaintiff; 3. The fact that the mechanism of injury (the plaintiff's left arm being caught in the steering wheel of her car upon crash impact) did not explain a right shoulder injury; 4. The absence of any reference in the plaintiff's Personal Injury Claim Form of 14 June 2018 to any right shoulder condition arising from the motor accident; 5. The absence of any reference in the certificate issued by the plaintiff's GP in April 2016 and June 2016 to a right shoulder injury; 6. The inconsistency between the plaintiff's presentation to the first assessor, and her presentation to Drs Cameron and Rosenthal as to extent of movement; and 7. The absence of any evidence other than the plaintiff's assertion to link the right shoulder injury found on investigations conducted in August 2017 with the motor vehicle accident in April 2016, in circumstances where the Panel had concluded that the plaintiff's memory of this aspect of the matter was unreliable.
It is clear from the reasons that, having considered the nature of the dispute, and the evidence upon which the new assessment was conducted, the Panel was not able to conclude that the right shoulder injury could be attributed to the motor vehicle accident. There is no error on the face of the record flowing from any inadequacy in the reasons.

The Medical Examination Ground

This is the most substantial of the plaintiff's complaints and is one about which there is no clear authority.
There is no dispute that, having determined that a further medical examination was necessary, the Panel conducted that examination with only two of the three assessors present. The third assessor did not personally examine the plaintiff, was not present to observe the examination, and made no observations of her himself.
The question is whether this serves to vitiate the examination.
The plaintiff contends that, because of the combined effect of s 63 of the Act, cl 1.20 of the Permanent Guidelines, and Chapter 16 of the Medical Assessment Guidelines, it does.
Section 63 is in these terms. 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. (7) The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made.
Section 63(3) and s 63(3A) are the important provisions for present purposes.
Clause 1.20 of the Permanent Impairment Guidelines is as follows. 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.
Chapter 16 of the Medical Assessment Guidelines deals with review of medical assessments pursuant to s 63, and covers: Applications (MAS forms 5A and 5R); Proper Officer determination; Further information or documentation required; Referral to a Review Panel; and Review Panel assessment.
Clauses 16.21 to 16.26 deal with the work of the Review Panel in conducting a new assessment. Those clauses are as follows: 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; 16.21.6 where the original assessment certificate was issued under clause 13.7 and included in a combined certificate under clause 13.9, determine whether the panel is to issue a new combined certificate, combining the result of the review with the results of the other assessments included in that combined certificate; 16.21.7 determine which member of the panel will sign any certificates on behalf of the panel; 16.21.8 determine whether a further meeting of the panel is required; and 16.21.9 advise the Proper Officer of any determinations under this clause. 16.22 In the case of clause 16.21.2 where there is to be a re-examination, clause 9.11.4 and clause 9.11.5, and Chapters 10, 11, 12 and 18 apply to the re-examination. 16.23 In the case of clause 16.21.9 the Proper Officer will advise the parties of any determinations made in a panel conference within 5 days of being advised of those determinations. 16.24 Within 20 days of the final meeting of the panel , and in any case within 60 days of the initial meeting, the panel shall issue its determination and any certificates, accompanied by written reasons for the determination , in the form approved by the Authority, to the secretary who shall within 5 days of the issuing of any certificates, forward them to the parties and the original Assessor. 16.25 If the Review Panel members are unable to agree on an aspect of the assessment, the determination of the majority of the Review Panel will be the determination of the Review Panel , or in the case of an evenly divided panel, the view supported by the Chairperson will be the determination of the Review Panel, and that determination will include a statement as to the opposing view. 16.26 The Review Panel is to act as expeditiously as practicable in the circumstances.
Clauses 16.21.2 and 16.22 are of most significance.
Of those provisions referred to in cl. 16.22, clauses 9.11.4 and 9.11.5 are administrative provisions and of no present relevance. Chapter 10 governs dismissal of an application and need not be further considered. Chapter 11 deals with the assessment procedure. To be noted is clause 11.3 which provides that an assessor "is to inform him or herself on any issue as they see fit". Chapter 12 relates to supporting documentation and is not of present relevance. Chapter 18 relates to costs and need not be further considered.
When considering the same question in Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950, Adamson J said, at [69] - [73], Whether the Review Panel was entitled to have the plaintiff examined by two assessors is to be determined having regard to the provisions of the Act and the Guidelines: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [92] per Hayne and Heydon JJ. The starting point is s 63. The application for review is to be referred to a panel of at least three medical assessors: s 63(3). A review panel is to make a "new assessment": s 63(3A). Accordingly, it is only the panel, comprised of all its members, which can conduct a "new assessment" and make the relevant determination. The Permanent Impairment Guidelines provide that the assessment of permanent impairment involves three stages: a review of medical records; an interview and examination; and the preparation of a report: cl 1.20. It might be thought, if this provision were considered in isolation, that cl 1.20 required that each stage of the "assessment" be conducted by the Review Panel since it is the panel that is to conduct the "assessment". However, I do not consider this to be the preferable construction. The Guidelines (including the Permanent Impairment Guidelines and the Medical Assessment Guidelines) also confer (by cl 11.1 of the Medical Assessment Guidelines) a power on each individual assessor, including one who is a member of a Review Panel, to determine his or her own procedure. Further, while cl 16.21.2 of the Medical Assessment Guidelines provides that the Review Panel is to determine whether a re-examination is required, it does not provide that the Review Panel is to conduct the re-examination. The matters listed in cl 16.21 are matters which the Review Panel is to do itself; other matters involved in the assessment could, in my view, be done by one or more of the assessors, in accordance with his or her own procedure, as determined by cl 11.1. I do not consider that cl 16.21.7, which provides for the Review Panel to decide which member will sign the certificate, has the effect that a specific power is required to authorize examinations to be conducted by a subset of the members who comprise the Review Panel, since I regard the latter task as falling within the procedure for conducting an assessment for which provision is made in cl 11.1. I do not regard cl 16.25 of the Medical Assessment Guidelines as having any particular bearing on the present question since it deals with the question of disagreement between members of a review panel. In any event, there is no evidence of any such disagreement in the present case. For reasons given above, I assume that the members were unanimous both in their determination that the examination of the plaintiff ought be conducted by the two members who conducted it and in their ultimate assessment as revealed by the certificate and reasons. Accordingly, I consider that the Act and the Guidelines permit the Review Panel to determine that a re-examination is to be conducted by two of its three constituent assessors. In my view, any such examination so conducted is valid, as long as the Review Panel has made a determination that it be conducted in that way. There is no suggestion that the Review Panel did not make such a determination or that the whole of the panel did not consider the report (by whatever means) of the examination by the two assessors who conducted it.
Her Honour's reasoning and conclusions in Bradley v Insurance Australia Ltd accord with my own. Whilst I am conscious of the differing view taken by Schmidt J, I respectfully agree with Adamson J.
I propose to dismiss the summons.

ORDERS

The Court makes the following orders: 1. The summons filed on 24 April 2018 is dismissed. 2. I make no order as to costs.

Amendments 27 September 2018 - Representation on coversheet amended 02 October 2018 - Order 2 amended to read: "Conditional order 2 of 27 September 2018 is revoked. In lieu, I make no order as to costs." 02 October 2018 - Order (2) now reads: (2) I make no order as to costs. 02 October 2018 - Para 27 (2) now reads: (2) I make no order as to 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: 02 October 2018

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