IAG Ltd t/as NRMA Insurance v Chahoud

Factual and procedural background

1. On 16 March 2016, Mr Chahoud was involved in a motor vehicle accident in which he suffered injuries. He submitted a claim form dated 19 May 2016 to SIRA seeking benefits under the compulsory third party (CTP) scheme. IAG was the CTP insurer of the vehicle at fault. The claim form disclosed the following in respect of Mr Chahoud's pre-existing injuries: "24 Have you had any other injuries or illnesses, before or after the accident, to the same or similar part(s) of your body? Yes Injury to neck and spine, injury to back and spine 25 Are you aware of any previous medical history, health issues or injuries that may affect your recovery from the injury caused by this accident? Yes Back pain radiating to both legs, sciatica right leg, neck pain radiating to head and shoulders"
2. In late 2017, the parties applied to the Motor Accidents Medical Assessment Service, a unit of SIRA, for a medical assessment of the degree of Mr Chahoud's permanent impairment. IAG claimed that Mr Chahoud's impairment did not exceed 10 per cent and, accordingly, he was not entitled to damages for non-economic loss.
3. On 1 December 2017, Mr Chahoud was assessed by a medical assessor, Michael Long. On 20 December 2017, Assessor Long issued a certificate with accompanying reasons certifying that: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: Neck - soft tissue injury, aggravation of pre-existing, asymptomatic, degenerative changes in the cervical spine Lumbar Back - soft tissue injury with aggravation of pre-existing, symptomatic, degenerative changes in the lumbar spine Right shoulder - soft tissue injury, musculoligamentous injury"
4. Assessor Long assessed Mr Chahoud's impairment at 12 per cent. His conclusions were as follows: "As a result of the motor vehicle accident in which he was involved, Mr Walid Chahoud who is now 59 years of age, sustained injuries to his neck, lumbar back and right shoulder. There was no contemporaneous evidence that he had sustained an injury to his left shoulder. He has ongoing symptoms of pain and restriction of movement related to his neck, lumbar back and right shoulder. His lumbar back pain is continuous and radiates intermittently into the lateral and anterior aspect of his thighs. He had had lumbar back pain following an injury in March 2014, which initially spread into his right leg, although he indicated that prior to the motor accident of 16 March 2016, the radiation into his legs no longer occurred. In spite of him having continuous back pain, surprisingly, he had no abnormal clinical findings related to his back and no neurological abnormality or evidence of radiculopathy in his right or left lower legs. He has extensive degenerative changes in the lumbar spine and it is considered that he has non-verifiable radicular complaints … He has an ongoing painful restriction of movement of the right shoulder, probably secondary to direct injury to the right shoulder in the accident, as well as being secondary to his cervical neck pain."
5. Mr Chahoud's pre-accident history as disclosed to Assessor Long differed from that stated in his claim form, in that Assessor Long was only informed of his previous back injury. Assessor Long recorded Mr Chahoud's history as follows: "3 March 2014, in a fall at Woolworths he sustained a lumbar back injury. He had ongoing lumbar back pain, which radiated into the right leg. Although he still has some pain in his back, at the time of the motor accident of 16 March 2016, it was no longer radiating into the right leg."
6. In particular, in contradistinction to the claim form, Assessor Long made no reference to any history of "neck pain radiating to head and shoulders" whether as a result of the 2014 accident or otherwise.
7. Assessor Long concluded as follows with respect to Mr Chahoud's pre-existing impairment: "He had ongoing pain in the lumbar spine following an injury sustained to that region in a fall on 3 March 2014. This pain was continuing, although improving, prior to the motor accident of 16 March 2016. Following the injury of 3 March 2014 he had suffered with radiation of pain into the right leg, although indicated that prior to the motor accident the pain in the leg had resolved. He maintains that he had no symptoms in his legs associated with his back pain prior to the injury and there was no clinical evidence immediately prior to the accident from which to determine a pre injury impairment. Accordingly his history of no non verifiable radicular complaints prior to the accident is accepted as significant and as having resolved. It is therefore determined there is insufficient evidence to determine a pre injury impairment".
8. Assessor Long made no reference and no findings as to Mr Chahoud's previous neck injury.
9. On 15 February 2018, IAG wrote to Mr Chahoud's solicitors as follows: "We refer to our phone conversation this afternoon with Mr Ongami and to the MAS Certificate of Assessor Long dated 20/12/2017. Please be advised we do not concede on [non-economic loss] at this stage as we note the following medical information is outstanding despite our best attempts at obtaining it to date: 1. Medicare/PBS - previous attempts have been made to Medicare, recently they have requested that a new authority be updated and signed to approve request. 2. Pre-accident GP clinical notes. 3. Names of all treating Doctors/Practitioners over the last 5 years (so we can request a copy of their clinical notes) - More specifically a copy of the file and all medical information pertaining to Mr Chahoud's injuries from the 2014 incident at Woolworths, as specified by Mr Ongami. We kindly request that if you have any of the outstanding information, a copy be forwarded to our office at your earliest convenience so we can review our position." (Emphasis added)
10. On 13 March 2018, Mr Chahoud's solicitors provided the following documents to IAG: 1. a report of Dr George Weisz, an orthopaedic surgeon, dated 2 November 2015; 2. a report of Greg Anning, a consultant psychologist, dated 16 November 2015; and 3. the results of two CT scans dated 6 and 7 March 2014 of Mr Chahoud's lumbosacral spine and cervical spine.
11. It may be noted that the scans provided were undertaken within 3 and 4 days respectively of Mr Chahoud sustaining injury in the 2014 accident.
12. The reports of Dr Weisz and Mr Anning disclosed that Mr Chahoud injured not only his back but also his neck in the 2014 accident. Dr Weisz's report stated that: "2. History … … Mr Chahoud has persistent pain and numbness in the occipital area of the skull and on the top of it. Also has neck, and more so low back pain. … 3. On clinical examination … His neck mobility was significantly restricted in extension in particular and in left sided torsion. He has a clear sign of sub occipital neuritis, corresponding to the direct contusion. … 13 & 15. The prognosis suggests the likelihood of persistent symptoms at the present level of intensity, provided his restrictions at work be respected or alternatively, a gradual intensification of symptoms." (Emphasis added)
13. Mr Anning's report stated that "Mr Chahoud suffers ongoing pain in his neck and back as well as dizziness and numbness in his head" (emphasis added).
14. On 14 May 2018, pursuant to s 62 of the MACA (see [30] below), IAG applied for a further medical assessment of Mr Chahoud's permanent impairment on the basis that: "There is additional relevant information about the injury or injuries sustained in the motor vehicle accident and this additional information is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment."
15. The "additional relevant information" on which it relied derived from the reports of Dr Weisz and Mr Anning and the two CT scans. IAG made the following submissions in support of its application: "It is well documented the Claimant has prior injury pre-dating the subject accident due to a fall at Woolworths on 3 March 2014. However, as stated by Assessor Long … there was insufficient evidence before him to allow for pre-existing impairment as per 1.33 of the MAA Permanent Impairment Guidelines. The Insurer submits the additional information provides objective clinical evidence which will allow Assessor Long to make the appropriate pre-existing impairment which will have the material effect of reducing the WPI under the threshold. The Insurer refers to the Report of Dr George Weisz dated 02/11/2015 … and highlights: 'He stated that on 3.3.2014 he suffered a fall whilst on the premises of a shopping centre. He fell backwards, hit his occipital area and his neck, and low back was strained.' … 'His neck mobility was significantly restricted in extension in particular and in left sided torsion. He has a clear sign of sub occipital neuritis, corresponding to the direct contusion.' … The Insurer submits based on the findings of the clinical examination of Dr Weisz, which took place less than 4 months prior to the subject accident, there is clearly signs of dysmetria, which attracts a DRE II rating of 5% for the cervical spine. Assessor Long attributed 5% to the subject accident. Making the appropriate 5% deduction would result in the overall WPI being reduced from 12% to 7% and therefore bringing the Claimant under the threshold. The Insurer notes that based on the account provided to the Assessor, only a Lumbar spine injury is claimed as a result of the fall accident. However, this is at odds with the additional documentation which clearly reflects an injury to the cervical spine was sustained as well. The Insurer refers to the Report of Mr Greg Anning dated 16/11/2015 … and highlights: 'Mr Chahoud reported that he suffers pain in his neck and back as well as dizziness and numbness in his head.' … The Insurer submits the reports of both Dr Weisz and Mr Anning highlight an inconsistency issue as Assessor Long diagnosed 'Neck - soft tissue injury, aggravation of pre-existing, asymptomatic, degenerative changes in the cervical spine' [emphasis added], a diagnosis which is at odds with the additional information which highlights not only did the Claimant suffer from a pre-existing neck injury, but it was also symptomatic less than 4 months prior to the subject accident … The Insurer refers to the additional imaging … and highlights the following: 'Persistent lower back pain for 3 days after a fall at a shopping centre' … 'Persistent neck pain for 3 days after a fall at a shopping centre' … The Insurer submits this further provides objective evidence of pre-existing injury to both the cervical and lumbar spines. Therefore, the additional information provided by the Insurer would allow the Assessor to make the appropriate deduction for pre-existing impairment resulting in material change in the overall WPI impairment. Conclusion The Applicant must satisfy the twofold test contained in section 62(1A) of the Act. This being: a) That the new medical reports were additional relevant information because they post-date the original assessment; (Singh v Motor Accidents Authority of New South Wales [2010] NSWSC 550 ('Singh'), and b) Secondly, the medical reports contained opinions of a different kind and dealt with different issues than the opinions already expressed and considered. (Singh, at 63). The Insurer respectfully submits the enclosed information meets the criteria and the additional information is such as can have a material effect on the outcome of the previous assessment conducted by Assessor Long."
16. On 26 June 2018, Mr Chahoud lodged a reply to IAG's application, supported by submissions and evidence. Mr Chahoud pointed out that IAG was "already on notice and advised re: earlier injury to back and neck", to the extent that it was disclosed in his claim form. In response to IAG's submissions headed "Conclusion", set out in the preceding paragraph, Mr Chahoud submitted that, in respect of para (a): "The reports relied upon by NRMA pre-date the MAS Assessment which took place on 1 December 2017. MAS Certificate dated 20 December 2017. NRMA is clearly incorrect in asserting in their submissions under 'Conclusion' … that the reports post-date the assessment. … NRMA ought to have obtained/requested them previously or enquired whether the Claimant had any reports and the like of earlier injuries prior to MAS Assessment on 1 December 2017."
17. In respect of para (b), Mr Chahoud submitted that: "… NRMA cannot seek to rely on medico-legal reports and radiological reports (obtained by NRMA after the issue of the MAS Certificate dated 20 December 2017) where NRMA clearly could have and ought to have taken appropriate steps prior to Assessment on 1 December 2017 to obtain details and documents (including medical reports) of earlier injuries had it wished to do so. Claimant could potentially suffer prejudice if NRMA colloquially simply sits back and sees what MAS WPI Assessment comes in at and then seeks to obtain documents regarding earlier injuries which it was clearly on notice of prior to the MAS assessment which took place on 1 December 2017."
18. Mr Chahoud also submitted that the material relied on by IAG "do[es] NOT amount to nor can [it] be construed as being 'clinical evidence immediately prior to the accident'".
19. On 9 July 2018, a proper officer of SIRA determined not to refer the matter for further medical assessment (First Decision). Her reasons for so deciding are set out below.
20. On 31 August 2018, IAG wrote to the proper officer, requesting that she reconsider her decision. The proper officer responded on 17 September 2018, stating her intention to treat IAG's letter as an application to exercise the discretion under Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (Bhardwaj). As the proper officer stated, Bhardwaj: "… is authority for the proposition that, where a decision can wholly be accepted as invalid by reason of jurisdictional error, a decision maker has, at law, not yet discharged his or her statutory function and may 'revisit' that decision without a court order."
21. On 27 September 2018, Mr Chahoud made submissions to the proper officer in response to IAG's application.
22. On 8 October 2018, the proper officer issued a further decision (Second Decision), finding that "there has been no error and I have no power to revisit this decision as I have discharged my duty and am 'functus officio'". Her reasons are again set out below.
23. On 7 January 2019, IAG filed in this Court a summons seeking judicial review of the First and Second Decisions. In respect of the First Decision, the summons was not filed within time, it having been filed almost three months after the three-month limit prescribed by r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Accordingly, IAG requires leave to commence these proceedings in respect of the First Decision. The summons was filed within time in respect of the Second Decision.
24. IAG filed an amended summons on 14 January 2019. It sought leave to file in court a further amended summons, which I granted after hearing argument on the application.

Statutory framework and applicable guidelines

1. Before setting out the proper officer's findings, it is useful to set out the statutory framework governing medical assessments and any applicable guidelines.
2. Part 3.4 of the MACA governs medical assessments. It applies to disagreements between claimants and insurers about, inter alia, "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%": s 58(1)(d). Pursuant to s 60, a medical dispute may be referred to SIRA for assessment by either party to the dispute and SIRA is to arrange for the dispute to be referred to one or more medical assessors.
3. An assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (PI Guidelines), issued under s 44(1)(c) of the MACA. Relevantly, for the purposes of these proceedings, cl 1.31 provides that: "The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored." (Emphasis added)
4. Section 61 of the MACA requires the medical assessor to whom the dispute is referred to provide a certificate as to the matters referred for assessment.
5. The process for referring a matter for further medical assessment is set out in s 62 as follows: "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency."
6. In respect of s 62(1)(a), the Medical Assessment Guidelines, issued under s 44(1)(d) of the MACA, provide as follows: "Proper Officer determination 14.3 The Allocation Review of an application for further assessment is to be conducted in accordance with Chapter 9. 14.4 When conducting an Allocation Review of an application for further assessment pursuant to Chapter 9, the Proper Officer is to determine whether the application is suitable for referral for further assessment. 14.5 When determining whether a matter should be referred for further assessment under section 62(1)(a) whilst conducting an Allocation Review, the Proper Officer shall have regard to: 14.5.1 the application and any reply; 14.5.2 any other applications and replies and/or MAS certificates on this medical dispute or any other medical disputes at MAS in relation to the same claimant, not limited to the same matter, after the parties have been provided with a copy of these documents; and 14.5.3 the objects of the Act and the objects of MAS. 14.6 For the purposes of section 62(1A) the word 'material' includes that it is relevant and capable of altering the outcome of a dispute about: 14.6.1 reasonable and necessary treatment, from 'not reasonable and necessary' to 'reasonable and necessary' or vice versa; 14.6.2 related treatment, from 'not related' to 'related' or vice-versa; or 14.6.3 permanent impairment, from 'not greater than 10% whole person impairment' to 'greater than 10% whole person impairment' or vice-versa. 14.7 If the Proper Officer is not satisfied that the deterioration of the injury or the additional relevant information about the injury would have a material effect on the outcome of the application, the Proper Officer may dismiss the application. 14.8 The Proper Officer is to provide the parties with brief written reasons for the decision at the same time as, or as part of the notification to the parties, of the outcome of the Allocation Review as required by clause 9.2."

First decision

1. As noted earlier, by her First Decision, the proper officer determined not to refer the parties' dispute as to the degree of Mr Chahoud's permanent impairment for further medical assessment. The proper officer's core findings were as follows: "19. While I may be satisfied that the applicant has provided additional relevant information about the injury, I cannot be satisfied that it is such as to be capable of having a material effect on the outcome of the previous assessment. In making his determination as to whether a deduction could be made for a pre-existing permanent impairment, Assessor Long made the following comment … : He had ongoing pain in the lumbar spine following an injury sustained to that region in a fall on 3 March 2014. This pain was continuing, although improving, prior to the motor accident of 16 March 2016. Following the injury of 3 March 2014 he had suffered with radiation of pain into the right leg, although indicated that prior to the motor accident the pain in the leg had resolved. He maintains that he had no symptoms in his legs associated with his back pain prior to the injury and there was no clinical evidence immediately prior to the accident from which to determine a pre injury impairment. Accordingly his history of no non verifiable radicular complaints prior to the accident is accepted as significant and as having resolved. It is therefore determined there is insufficient evidence to determine a pre injury impairment. 20. The key piece in this paragraph is that Assessor Long could not make a deduction as 'there was no clinical evidence immediately prior to the accident.' This is in keeping with the Permanent Impairment Guidelines, which specify that, before a deduction can be made for a pre-existing impairment … clause 1.31 must be met: The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored. (my emphasis) 21. I am not satisfied the records some four months prior to the subject accident can be considered as 'at the time of the accident.' Similarly, I cannot be satisfied that the records some four months before the accident would be sufficient to see Assessor Long satisfied that there is 'clinical evidence immediately prior to the accident.' Therefore, on the basis of the information, I am not satisfied that a Medical Assessor would be able to make a deduction for pre-existing impairment. 22. For similar reasons, I am not satisfied that there is sufficient evidence to make a deduction for pre-existing impairment in the lumbar spine region. The report of Dr Weisz records only that the claimant experienced some low back discomfort at the time of the examination. Dr Weisz has not recorded any of the required symptoms to assess a DRE Category higher than I. 23. Even if I were satisfied that the record was close enough in proximity to the accident to make a deduction for pre-existing impairment, I am not satisfied that the evidence provides enough detail to make a deduction. The Assessor would require objective evidence of the pre-existing impairment and the examination of the lumbar spine in Dr Weisz's report is not, in my opinion, sufficient to make a finding of dysmetria. Non-uniform loss of spinal motion is defined on page 30 of the Permanent Impairment Guidelines as: Non-uniform loss of motion of the spine in one of the three principle planes is sometimes caused by muscle spasm or guarding. To qualify as true non-uniform loss of motion, the finding must be reproducible and consistent, and the medical assessor must be convinced that the individual is cooperative and giving full effort. When assessing non-uniform loss of range of motion (dysmetria), medical assessors must include all three planes of motion for the cervicothoracic spine (flexion/extension, lateral flexion and rotation), two planes of motion for the thoracolumbar spine (flexion/extension and rotation) and two planes of motion for the lumbosacral spine (flexion/ extension and lateral flexion). Medical assessors must record the range of spinal motion as a fraction or percentage of the normal range such as cervical flexion is 3/4 or 75% of the normal range. Medical assessors must not refer to body landmarks (such as able to touch toes) to describe the available (or observed) motion. 24. Accordingly, I cannot be satisfied that there would be a deduction for pre-existing permanent impairment in accordance with clause 1.31 of the Permanent Impairment Guidelines and therefore, cannot be satisfied that there would be a material effect on the outcome of the previous assessment."
2. With respect to Mr Anning's report, the proper officer found that, to the extent that he merely stated that Mr Chahoud had pain in his neck and back at the time of his examination, "this information is insufficient for a Medical Assessor to make a deduction for a pre-existing impairment in accordance with the Permanent Impairment Guidelines".
3. In relation to the CT scans, the proper officer referred to cl 1.121 of the PI Guidelines, which states that while imaging may assist medical assessors in making a diagnosis: "… the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis … To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category."
4. The proper officer found that: "In accordance with this clause, without the necessary accompanying signs in the clinical presentation, imaging alone is insufficient to qualify for a DRE category. As I have not considered the reports of Dr Weisz and Mr Anning to be 'at the time of the accident' for the purposes of making a deduction for pre-existing impairment the MRI scans of themselves, cannot be considered as material to the outcome of the previous assessment." (Emphasis added)

Second decision

1. Before setting out the Second Decision, it is useful to set out IAG's submissions contained in its letter of 31 August 2018 to the proper officer requesting that she reconsider her decision: "The Insurer respectfully requests your reconsideration of this matter. As stated in our original submissions, Assessor Long stated he had insufficient evidence to determine the pre-existing impairment in the lumbar spine. The pre-accident history provided by the claimant indicated he only sustained a lumbar spine injury in a fall at Woolworths on 3 March 2014. However, the additional documentation as submitted by the Insurer for the basis of the application shows an injury to the cervical spine was also sustained in the fall. The additional information also demonstrates that as recently as 02/11/2015, which is less than 4 months prior to the subject accident, a clinical examination by Dr George Weisz showed dysmetria present in the cervical spine. The Insurer submits the following: 1. Assessor Long did not consider making a pre-existing impairment in the cervical spine as he was not aware an injury to that area also existed prior to the subject accident. This evidence should now be in front of the Assessor to consider his opinion on whether contemporaneous records less than 4 months prior to the subject accident is sufficient for a pre-existing deduction in this region. 2. This information highlights an inconsistency between the claimant's account and the contemporaneous medical evidence which had the Assessor been privy to, he could have addressed with the claimant as per Point 1.43 of the MAA Permanent Impairment Guidelines. 3. In your reasoning, specifically point 23, you state you do not believe there is enough in Dr Weisz report to make a deduction in the lumbar region, however the Insurer never raised the possibility of deduction for the lumbar spine. Our submissions demonstrated there was evidence for deduction for the cervical spine which has not been addressed by yourself to date. 4. The deduction of 5% for the cervical spine would reduce the [Whole Person Impairment] from 12% to 7% thereby resulting in a material change in the outcome of the assessment."
2. Mr Chahoud opposed IAG's application, submitting that the issues raised by IAG had already been ventilated and determined by the proper officer in the First Decision.
3. The proper officer emphasised, in the Second Decision, that Bhardwaj "should be applied cautiously and only where the decision is obviously wrong". She found that there was no reason for her to reconsider the First Decision, stating that: "While I did not specifically name the cervical spine injury while dealing with it in my reasons, I have in fact dealt with that issue. The test for apportionment remains the same regardless of the injury, I have excerpted Assessor Long's reasons in relation to the lumbar spine apportionment and then applied them to the cervical spine. When [[19]-[22] of the First Decision] are read in their entirety, I believe my intention is quite clear. … It is clear here, by inference, that I do not refer to the lumbar spine injury until paragraph 22. Thereby indicating that the previous paragraphs were addressing the cervical spine injury and apportionment. The record of a cervical spine injury some four months prior to the subject accident does not satisfy me that there would be an apportionment in accordance with Assessor Long's reasons and the Permanent Impairment Guidelines."
4. As noted earlier, she concluded, "I am of the view that there has been no error and I have no power to revisit this decision as I have discharged my duty and am 'functus officio'."

Issues raised by IAG's further amended summons

1. Grounds 1A and 1B of IAG's further amended summons were introduced by amendment and alleged that the proper officer "misconceived her function and powers and exceeded her powers" on the basis that, under s 62 of the MACA, the proper officer had no power to refuse to refer the dispute as to the degree of Mr Chahoud's permanent impairment to a medical assessor. In essence, it contended that the role of a proper officer under s 62 is "merely procedural" and that the section "does not confer a discretion upon the proper officer". IAG alleged that to the extent of any inconsistency, the Medical Assessment Guidelines were invalid.
2. These grounds were put formally to preserve IAG's right to raise them on appeal. The same course was taken by IAG in IAG Ltd t/as NRMA Insurance v Jammal [2019] NSWSC 676 (Jammal). IAG acknowledged the existence of a line of Court of Appeal authority adopting a contrary interpretation of s 62: see Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97; Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69; QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322; Jubb v Insurance Australia Ltd [2016] NSWCA 153; 76 MVR 228; Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; 81 MVR 249 (Dominice). As it did in Jammal, IAG accepted that, sitting at first instance, I was bound by these decisions. It is therefore unnecessary for me to consider grounds 1A and 1B further.
3. IAG's further amended summons raised the following other issues in respect of the First Decision: 1. whether the proper officer "applied incorrect or mistaken tests" (ground 2(a)); 2. whether the proper officer misconstrued cl 1.31 of the PI Guidelines (ground 2(b)); and 3. whether the proper officer sought to determine for herself issues that were properly for the opinion of expert medical assessors and erred in so doing (ground 2(c)).
4. The further amended summons raised similar issues in respect of the Second Decision: 1. whether the proper officer "applied incorrect or mistaken tests" (ground 3(a)); 2. whether the proper officer misconstrued cl 1.31 of the PI Guidelines (ground 3(b)); and 3. whether the proper officer erred in failing to find that the First Decision was "afflicted by legal error within the meaning of Bhardwaj" (ground 3(c)).
5. In respect of ground 3(c), IAG submitted that, based on the errors alleged in grounds 2(a)-(c), the First Decision was "afflicted by legal error" such that the proper officer should have exercised her discretion under Bhardwaj. However, it did not advance any independent submissions in respect of this ground. Accordingly, it is not necessary for me to consider this ground separately.
6. Before turning to consider these issues, it is convenient to deal with IAG's application for leave to extend the time for commencing these proceedings in respect of the First Decision.

Application for leave to extend time

1. As noted earlier, IAG requires leave to commence these proceedings in respect of the First Decision as its summons was filed more than three months after the date of the First Decision: r 59.10(1) of the UCPR.
2. IAG submitted that it was proper for it to have exhausted its remedies below before commencing proceedings in this Court, namely by requesting that the proper officer remake the First Decision.
3. IAG referred to the Court of Appeal's decision in Rodger v De Gelder in support of this submission. In that case, Beazley P (McColl and Macfarlan JJA agreeing) stated that: "[91] As I have indicated, the MAC Act does not provide for an appeal from or a review of a Proper Officer's determination under s 62. However, there is a process of review of medical assessments. The authorities are clear that a court may and usually does, decline prerogative relief where an applicant has not exhausted such appeal or review rights as may be available. In the present case, where the processes mandated by the MAC Act are intended to provide a low cost and relatively expeditious means of recovering compensation, I am of the opinion that a party, by participating in a further medical assessment or a review thereof, has not by that fact alone waived or abandoned a right to seek prerogative relief, so as to permit the refusal of relief on discretionary grounds. [92] For the same reason, I have reached the conclusion that Mr De Gelder was not debarred on discretionary grounds from obtaining prerogative relief because he had elected to engage in the further assessment. As I have indicated, when a party who has a right of appeal in the court or tribunal whose orders are subject to judicial review, that party is not confronted with mutually exclusive choices. Rather, a superior court with supervisory jurisdiction usually requires a party to first exhaust those other remedies. In deciding to participate in the further assessment, I am of the opinion that Mr De Gelder was not exercising a final choice to pursue one remedy rather than the other. As his solicitor's evidence revealed, the reassessment process was relatively inexpensive and quick, and it was reasonable for Mr De Gelder to believe that the earlier medical assessments may not be altered. Accordingly, he chose to engage in that process, but not as a final choice between mutually exclusive rights."
4. Unlike in Rodger v De Gelder, however, IAG was not seeking to exercise a statutory right of appeal or review. IAG accepted this, but submitted that, by analogy to Rodger v De Gelder, it was appropriate for it to have requested that the proper officer exercise the discretion under Bhardwaj on the basis that a jurisdictional error had been made and in circumstances where its application to the proper officer had been timely. IAG pointed to the fact that the proper officer accepted, as it were, its application in relation to the First Decision and proceeded to reconsider the First Decision, albeit she did not ultimately reverse or vary it. IAG also relied on the fact that the Second Decision, in respect of which its summons was filed within time, was inextricably linked to the First Decision.
5. Mr Chahoud submitted that IAG's letter to the proper officer of 31 August 2018 was neither an exercise of a statutory appeal right nor an exercise of a statutory review right. He pointed out that IAG appears to have been unaware of the principle articulated in Bhardwaj until the proper officer replied citing the decision. He submitted that the only appeal or review right properly exercised by IAG was that exercised by it on 14 May 2018, when it applied for a further medical assessment.
6. Mr Chahoud also emphasised the public interest in finality in litigation: see r 59.10(3)(d) of the UCPR. In this regard, he referred to the High Court's decision in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491; [2000] HCA 67 (Ex parte Marks), in which McHugh J stated, at [15]: "An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. Where an applicant seeks the issue of the constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions." (Footnote omitted)
7. However, Mr Chahoud conceded that no prejudice would be suffered were an extension of time to be granted.
8. In addition to the factors identified by McHugh J in Ex parte Marks, in determining whether to grant an extension of time, it is necessary to consider the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case and the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].
9. In the present case, the delay of just less than three months is explained by the fact that IAG was pursuing an avenue of review, albeit not a statutory right of review. It did so in a timely fashion, its application to the proper officer having been made less than two months after the First Decision was made. It also filed its summons in this Court within time in respect of the Second Decision. The nature of this litigation is such that, as IAG submitted, the Second Decision is inextricably linked to the First Decision. As will be evident from my consideration of the substantive issues below, IAG has a fairly arguable case. Critically, Mr Chahoud accepted that no prejudice would be suffered by him if an extension were to be granted. Accordingly, it is in the interests of justice that IAG be granted an extension of time to commence these proceedings up to and including the date on which the summons was filed, namely 7 January 2019.

Grounds 2(a) and 3(a): application of s 62(1A) of the MACA

1. Grounds 2(a) and 3(a) concern the proper officer's application of s 62(1A) of the MACA. IAG submitted that the proper officer failed to apply the correct legal test, namely that the "additional information is such as to be capable of having a material effect on the outcome of the previous assessment" (emphasis added).
2. IAG acknowledged that the proper officer set out the correct test in the First Decision. However, it submitted that this was merely a formulaic recitation of s 62(1A). IAG referred the Court to two recent decisions in which it was found that a formulaic recitation of a statutory test is neither sufficient nor decisive in determining whether the correct test has in fact been applied: see Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 137 at [194]-[196]; Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [74(d)] and [81].
3. IAG submitted that, as a matter of substance, the proper officer applied a higher threshold than that stipulated in s 62(1A). In respect of the First Decision, IAG pointed to the proper officer's finding, at [22], that "I am not satisfied that there is sufficient evidence to make a deduction for pre-existing impairment in the lumbar spine region" (emphasis added). IAG also took issue with the proper officer's finding, at [23], that "I am not satisfied that the evidence provides enough detail to make a deduction". It submitted that the proper officer was neither required nor permitted to determine whether the evidence was in fact sufficient. Similarly, IAG submitted that the proper officer erred both in considering, at [24], whether there "would" be a deduction for pre-existing impairment and whether there "would" be a material effect on the outcome of the previous assessment.
4. In respect of the Second Decision, IAG submitted that the proper officer erred in finding that she was not satisfied that there "would" be an apportionment.
5. Mr Chahoud submitted that IAG's submissions relied "on an impermissibly close reading of the decision with an eye finely attuned to error". He submitted that reading the proper officer's reasons fairly and as a whole, they disclosed no error. Mr Chahoud accepted that there would be some force in IAG's submissions if the statement of the correct test only appeared once in the First Decision. However, in addition to setting out the test at the beginning of her decision, the proper officer found, at [19], that "I cannot be satisfied that it is such as to be capable of having a material effect on the outcome of the previous assessment" (emphasis added). That language reflected the correct test.
6. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang), Brennan CJ, Toohey, McHugh and Gummow JJ stated, at 272: "… a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker … 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.' These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." (Footnotes omitted)
7. Mr Chahoud referred the Court to an application of Wu Shan Liang in the context of s 62(1A) of the MACA. In Allianz Australia Insurance Ltd v MacKenzie [2012] NSWSC 1458; 62 MVR 305, the insurer argued that the proper officer applied the wrong test by reference to certain words used in the decision, including "proved", "could be" and "could take". Johnson J found, at [182], that while it was true that the proper officer used "some words of qualification", this did not constitute the application of a wrong test. His Honour found that reading the reasons fairly and as a whole, they explained how the proper officer came to the decision that the additional information was such as to be capable of having a material effect on the outcome of the previous assessment.
8. In my view, the statements of the proper officer challenged by IAG, when read in the context of her decision as a whole, do not demonstrate that she applied the wrong test. True it is that a formulaic recitation of a statutory test is not conclusive evidence that the test as stated has in fact been applied. However, as Mr Chahoud pointed out, the proper officer referred to the correct test on more than one occasion.
9. Further, to the extent that the proper officer used the language of "sufficiency", although this does not mirror the language of s 62(1A), it is at least consistent with a test of capacity. In [22] of her reasons, set out at [32] above, the proper officer found that "I am not satisfied that there is sufficient evidence to make a deduction for pre-existing impairment in the lumbar spine region" (emphasis added). Similarly, in [23], she found that "Dr Weisz's report is not, in my opinion, sufficient to make a finding of dysmetria" (emphasis added).
10. It is also worth emphasising the proper officer's use of the word "cannot" in [24]: "Accordingly, I cannot be satisfied that there would be a deduction for pre-existing permanent impairment in accordance with clause 1.31 of the Permanent Impairment Guidelines and therefore, cannot be satisfied that there would be a material effect on the outcome of the previous assessment." It is at least arguable that "cannot", like "sufficient", can be understood as an alternative to "capable of".
11. On balance, therefore, I would dismiss grounds 2(a) and 3(a). In reaching this conclusion, I am conscious of the warning issued by Basten JA in Dominice. His Honour stated, at [12]: "The abandonment of the statutory language in favour of a paraphrase is to be deprecated. It did not lead to error in the present case, but it could well do so in other circumstances. The statutory language is not obscure, nor difficult to apply. Conclusions expressed in accordance with the language of the statute are less likely to invite applications for judicial review."
12. Similarly, here, it would have been preferable for the proper officer to have used the language of s 62(1A). However, as was the case in Dominice, and bearing in mind the principle articulated in Wu Shan Liang, I do not consider the "looseness" or "unhappy phrasing" of the proper officer's language to be fatal in the present case.

Grounds 2(b) and 3(b): construction of cl 1.31 of the MACA

1. As set out above at [28], cl 1.31 of the MACA requires any "objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident" (emphasis added) to be evaluated and deducted. IAG contended that the proper officer erred in her construction of this clause and its application to the facts of the case.
2. In its written submissions, IAG emphasised the absence of any temporal element in what it described as the "prohibition" in cl 1.31, which states that "[i]f there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored." It submitted that, accordingly, if objective evidence of a pre-existing impairment exists, a medical assessor is not required to ignore it, even if it is not temporally connected to the accident. This, however, was not the focus of its submissions during the hearing.
3. Instead, IAG focussed on the proper officer's findings at [21] of the First Decision. It is useful to reproduce the relevant findings: "I am not satisfied the records some four months prior to the subject accident can be considered as 'at the time of the accident.' Similarly, I cannot be satisfied that the records some four months before the accident would be sufficient to see Assessor Long satisfied that there is 'clinical evidence immediately prior to the accident.'" (Emphasis added)
4. IAG submitted that in so finding, the proper officer wrongly construed cl 1.31 as requiring that the evidence itself be dated "at the time of the accident". It submitted that the clause should instead be read as requiring that there be "evidence of pre-existing impairment at some time prior to the accident, that likely still existed at the time of the accident". What was "likely still to exist", in other words, were not records of any pre-existing impairment but the pre-existing impairment itself.
5. Mr Chahoud did not dispute IAG's construction of cl 1.31, but submitted that the proper officer did not err as alleged. Although he accepted that the proper officer's reasons could have been better expressed, Mr Chahoud submitted that on a proper reading of her reasons, the proper officer found that the evidence sought to be relied on by IAG from some four months prior to the accident was not capable of having a material effect on the outcome of the previous assessment. Mr Chahoud emphasised the fact that Assessor Long had accepted that Mr Chahoud's "radicular complaints" had resolved at the time of the accident.
6. In the event that the proper officer did err as alleged by IAG in finding as she did at [21], Mr Chahoud relied on the proper officer's finding at [23] that "[e]ven if I were satisfied that the record was close enough in proximity to the accident to make a deduction for pre-existing impairment, I am not satisfied that the evidence provides enough detail to make a deduction" (emphasis added).
7. As Mr Chahoud acknowledged, and, again, having regard to Dominice, it would have been preferable for the proper officer to have expressed her findings at [21] using the language of cl 1.31. On a very generous reading, her finding that "I am not satisfied the records some four months prior to the subject accident can be considered as 'at the time of the accident'" might be said to be a condensed or shorthand form of a finding that "I am not satisfied the records some four months prior to the subject accident can be considered as [evidence of a pre-existing symptomatic permanent impairment] 'at the time of the accident'". However, the proper officer's contingent findings at [23] betray such a reading of [21]. The statement "[e]ven if I were satisfied that the record was close enough in proximity to the accident to make a deduction" (emphasis added) makes clear that the proper officer was previously concerned with the timing of the record, as distinct from the injury. In this regard, the proper officer erred.
8. This error is not cured by the proper officer's findings at [23], as submitted by Mr Chahoud. The proper officer does not address at [23] Mr Chahoud's pre-existing neck injury. She deals only with his pre-existing back injury. Accepting the proper officer's explanation in her Second Decision that [19]-[21] of the First Decision were directed to Mr Chahoud's pre-existing neck injury, her findings at [23] in relation to the sufficiency of the detailed evidence (or more particularly the absence of it) were only made in relation to the lumbar spine. They did not address whether or not the information in Dr Weisz's report in relation to Mr Chahoud's pre-existing neck injury was insufficiently detailed so as not to be capable of having a material effect on the outcome of the previous assessment.

Ground 2(c): alleged determination of issues properly the subject of expert opinion

1. IAG submitted that the proper officer made "what was essentially a medical determination" and thereby impermissibly determined for herself issues that were properly for the opinion of expert medical assessors. This ground was based on ground 2(a), in that IAG's complaint was that the proper officer determined "what a medical assessor would and would not be able to assess … as opposed to considering whether the evidence was capable of having an effect on the outcome of the previous assessment".
2. IAG referred to the following observations of Kiefel J (as her Honour then was) in Rodriguez v Telstra Corp Ltd [2002] FCA 30; 66 ALD 579, albeit arising in the context of an Administrative Appeals Tribunal decision regarding whether the applicant's condition was work-related for the purposes of assessing the applicant's entitlement to compensation: "[25] The tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)) and may inform itself in such a manner as it thinks appropriate. This does not mean that the rules of evidence are to be ignored. The more flexible procedure provided for does not justify decisions made without a basis in evidence having probative force: Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 at 41; 26 ALR 247 at 256; 36 FLR 482 at 492, referring to Consolidated Edison Co v National Labour Relations Board 305 US 197 (1938) at 229; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256. The drawing of an inference without evidence is an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; 21 ALD 1 at 23-4; 94 ALR 11 at 37-8; Repatriation Commission v Maley (1991) 24 ALD 43 (Full Court). Similarly such error is shown when the tribunal bases its conclusion on its own view of a matter which requires evidence. In Collector of Customs (Tasmania) v Flinders Island Community Association (1985) 7 FCR 205 at 210; 8 ALN N102; 60 ALR 717 at 722 a Full Court of this court held that it was unjustifiable, and therefore legally erroneous, for a tribunal to base its conclusion upon its own understanding of traditional aboriginal concepts of community ownership and interests, in the absence of any evidence on the matter. [26] It may be said that expert evidence is sometimes over-utilised and is called in situations where an arbiter of fact is in a position to determine the matter for itself. Sometimes all that is necessary is for a method or process to be explained, so that the court or tribunal can then apply it to the facts it finds. On the other hand, there are cases where a whole question is, in effect, relegated to experts to give evidence upon it. This was such a case. The tribunal was not put in a position where it could simply draw its own inferences. In an area which required an understanding of a disorder it could only receive the opinions, have the bases for them explained if they differed and apply logic to determine which were to be accepted."
3. Mr Chahoud submitted that the proper officer was not "acting as her own expert" to the extent that she merely applied the PI Guidelines to the evidence before her.
4. As I have found that the proper officer did not err in her application of s 62(1A) of the MACA as alleged in grounds 2(a) and 3(a), the underlying basis of this ground falls away. The proper officer did not go beyond finding that the material relied on by IAG was not capable of having a material effect on the outcome of the previous assessment.
5. In any event, it is worth noting that s 62 of the MACA, read with the Medical Assessment Guidelines, requires a proper officer to make an assessment about the capacity of medical evidence to affect the outcome of a medical assessment. Clause 14.4 of the Medical Assessment Guidelines, for example, requires a proper officer "to determine" whether an application is suitable for referral for further assessment. Similarly cl 14.7 provides that if the proper officer "is not satisfied" that the additional relevant information would have a material effect on the outcome of the application, the proper officer may dismiss the application. In this regard, a proper officer is charged with making a quasi-medical decision.

Discretion

1. Mr Chahoud submitted that, in any event, the Court should, in the exercise of its discretion, decline to grant relief in circumstances where IAG had been on notice of his pre-existing back and neck injuries for some 18 months before he was assessed by Assessor Long, as they were disclosed in Mr Chahoud's claim form of 19 May 2016. Mr Chahoud contended that IAG could have, but did not, seek access to the material it subsequently sought to rely on during this period.
2. IAG submitted that it acted diligently in seeking access to the material. It referred to its request of 15 February 2018, which was sent soon after Mr Chahoud's assessment and from which, IAG submitted, it could be inferred that prior requests for information had been made but had gone unanswered. This is an appropriate inference to draw.
3. IAG also relied on the cooperation and disclosure obligations imposed on claimants under ss 85 and 85A of the MACA. Section 85 imposes a duty on claimants to "co-operate fully" with insurers for the purpose of giving insurers sufficient information to be satisfied as to the validity of the claim, to be able to make an early assessment of liability and to be able to make an informed offer of settlement. In particular, s 85(2)(a) requires claimants to comply with "any reasonable request by … the other party's insurer … to furnish specified information (in addition to the information furnished in the claim form) or to produce specified documents or records".
4. Section 85A imposes on claimants a duty to provide insurers with "all relevant particulars about the claim as expeditiously as possible after the claim is made" under s 85A of the MACA. "Relevant particulars about a claim" are defined in sub-s (3) as follows: "(3) For the purposes of this section, relevant particulars about a claim are full details of: (a) the injuries sustained by the claimant in the motor accident, and (b) all disabilities and impairments arising from those injuries, and (c) any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlement to damages."
5. Had these obligations been complied with more expeditiously than they were, Mr Chahoud's argument may have had more merit than in my view it has.
6. The Court is not bound to make an order in the nature of mandamus. However, I do not consider that there is "good reason" to refuse to make such an order: see R v Kelly; Ex parte Victorian Chamber of Manufactures (1953) 88 CLR 285; [1953] HCA 30 at 309. IAG's request for information of 15 February 2018 makes clear that it had previously attempted to obtain information from Mr Chahoud regarding his prior injuries.
7. To the extent that Mr Chahoud submitted that IAG should have sought the information from him earlier, s 85 required Mr Chahoud to meet reasonable requests from IAG for information, which he failed to do, and s 85A required him to disclose "full details" of relevant particulars about the claim as expeditiously as possible after the claim was made, which he also failed to do. Mr Chahoud must have appreciated the relevance of his pre-existing back and neck injuries to the claim, having disclosed them in his claim form. Accordingly, I would remit the matter to SIRA for determination by a proper officer according to law.

Orders

1. I make the following orders: 1. Pursuant to r 59.10(2) of the UCPR, extend the time for the plaintiff to commence these proceedings to 7 January 2019. 2. Set aside the decisions of the proper officer of the second defendant made on 9 July 2018 and 8 October 2018 dismissing the plaintiff's application under s 62 of the Motor Accidents Compensation Act 1999 (NSW) for a further medical assessment. 3. Remit the matter to the second defendant for the determination of the plaintiff's application by a proper officer according to law. 4. The first defendant is to pay the plaintiff's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2019