IAG Ltd t/as NRMA Insurance v Tarabay

Supreme Court of NSW|2018-06-29|Before: Garling J

Judgment

These proceedings are brought by IAG Limited trading as NRMA Insurance ("the NRMA") seeking administrative law relief with respect to a decision of the third defendants, who are the members of the Medical Assessors Review Panel ("Review Panel").

Summons

The Summons for review relied upon three errors. The first was that the decision of the Review Panel was invalid because only two members of the Review Panel conducted the examination of the defendant, whereas a proper interpretation of the statutory provisions of the MACA and the Guidelines compelled the conclusion that any examination had to be conducted by all three members of the Review Panel.
The second error relied upon was that in determining that the pre-existing impairment of the defendant ought be assessed at 1%, the Review Panel failed to set out its reasons adequately or in sufficient detail to comply with its obligation to give reasons.
Thirdly, the NRMA submitted that a finding of 1% for pre-existing whole person impairment was not open to the Review Panel because it was "legally unreasonable", that is a decision which was so unreasonable, that no reasonable decision-maker could have come to that conclusion: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

Ground 1

The NRMA submitted that in circumstances where: (1) the defendant had a substantial pre-existing history of psychiatric condition, (2) there were conflicting opinions in the material before the Review Panel as to the apportionment of pre and post-accident impairment, and (3) where the Review Panel itself had concerns about the accuracy and veracity of the accounts given by the defendant, the failure to have all three members of the Review Panel undertake the examination of the defendant meant that the decision of the Panel was void.
In support of this submission, the NRMA relied upon the judgment in Wolarczuk v NRMA Insurance Australia Limited [2017] NSWSC 1691; (2017) 82 MVR 504. In that decision Schmidt J concluded, with respect to a similar issue, and contrary to the submissions made to her by the NRMA in that case, that: "110. In my view, as I have explained, given the requirement of s 63(3A) [of MACA], that there be a 'new assessment of all the matters with which the medical assessment is concerned', which is not limited to that part of the earlier assessment which is alleged to be incorrect, if the panel determines that a re-examination is necessary, that being one part of such an assessment, all Panel members must be present when the re‑examination is undertaken."
The NRMA acknowledged that her Honour's decision was contrary to that of Adamson J in Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950; (2015) 71 MVR 496, where her Honour accepted the submission of the NRMA that the MACA and the MAA Medical Assessment Guidelines ("the MA Guidelines") did not require all members of a review panel to be present when a medical examination occurred.
The NRMA submitted to this Court, contrary to the submissions which it made in both Bradley and Wolarczuk, that it was not open to a Review Panel, when it conducts an examination of a claimant, for the examination to be conducted by fewer than all of the members appointed to participate in the Review Panel.
Shortly put, the NRMA adopted and propounded the reasoning of Schmidt J in Wolarczuk and relied upon it in preference to the reasoning of Adamson J in Bradley.
I should note for completeness that Adamson J in a later case, Mackenzie v Allianz Australia Insurance Ltd (No. 2) [2015] NSWSC 1320; (2015) 72 MVR 440, followed her earlier decision in Bradley for similar reasons.

Ground 2

On the second ground, the NRMA submitted that the obligation to give reasons for conclusions in certificates is that identified by the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480. There, at [55] the High Court said that the statement of reasons of a medical panel engaged in an exercise similar to that here: "… must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. … If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which [relief can be granted]."
The NRMA accepted that it is open to a body such as the Review Panel to rely upon inference as part of its reasoning process, in accordance with the decision of the Court of Appeal in Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6] where Leeming JA said: "6. I would not accept the submission initially advanced by the respondent, which in effect was that nothing in the statement of reasons could be left to inference (transcript, 5 February 2016, p 18). True it is that the Assessor did not say in terms from where the amount of 6.76 hours of assistance for past gratuitous care assessed to be reasonable and necessary was derived. However, the amount corresponds precisely (to three significant digits) with Assessor Davidson's assessment of the same head, and the Assessor stated that he was assisted by her summary recommendations. It is obvious that that must be the source of that conclusion. Ultimately, the respondent acknowledged that that must be so. The concession was properly made. If the only complaint were the failure to state expressly that the 6.76 hours was derived from the certificate of Assessor Davidson, then there would in my opinion be no breach of the obligations imposed on the Assessor. Although it is undesirable for the statement of reasons to leave important matters to inference, doing so does not necessarily breach the obligation to set out the Assessor's reasons. The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a "beneficial construction" to which the High Court referred in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. At least where a gap may be filled as a matter of necessary inference on a fair reading of the reasons, I would consider that the obligation to set out the reasons has been discharged."
The NRMA's submissions on this ground concentrated on the fact that while the Review Panel's reasons identified extensive evidence which it reviewed in respect to the defendant's pre-accident conditions, it only reduced her whole person impairment by reason of those pre-accident conditions by 1%. It submitted that no adequate reasons were provided in the body of the reasons for a reduction by such a small figure. The NRMA drew attention to reductions contained in the opinions of other medical experts in the papers before the Review Panel which differed significantly from that which the Review Panel decided upon.

Ground 3

Finally, the NRMA submitted that the allocation of 1% for pre-existing whole person impairment was legally unreasonable. It relied upon the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 to advance the submission that legal unreasonableness includes where a decision-maker has failed to give sufficient weight to a relevant factor of significance, or where a decision lacks evidence and intellectual justification, or where it is not apparent how a conclusion was reached from the decision itself.
Whilst acknowledging that this ground, to some extent, overlapped with the failure to give adequate reasons, the NRMA submitted that the Review Panel: "did not have regard to the reasoning process that a court would be required to adopt in awarding damages by having due regard to the extensive evidence of pre-existing psychological disorders."
It submitted that this was a basis for setting aside a decision under s 69 of the Supreme Court Act 1972.

Ground 1

On the first ground, the defendant submitted that there was no requirement in law for all three members of the Review Panel to examine or interview her. Accordingly, their assessment was not affected by any jurisdictional error or errors of law on the face of the record.
In essence, the defendant contended that the reasoning of this Court in Bradley and Mackenzie ought be followed, rather than the decision of the Court in Wolarczuk.
The defendant also referred, by analogy, to Boyce v Allianz Australia Insurance Limited [2018] NSWCA 22; (2018) 83 MVR 403, where Basten JA at [49] stated that the need to conduct a re-examination is "a factual issue for the Panel (and not a matter for the reviewing Court to determine)". She submitted that the determination of how many members must conduct the examination is likewise factual in nature.
To support this construction of the MACA, the defendant drew attention to the text and structure of the MACA, and in particular the terms of the Permanent Impairment Guidelines, the MA Guidelines and the Practice Notes which were relevant to the Review Panel's procedure. The defendant submitted that the Review Panel was under no obligation to conduct an interview or examination of any complainant, including in the case here, the defendant. The defendant submitted that if the Review Panel determined that an examination was to be conducted, it was a matter entirely for the Review Panel to determine, how and by whom that examination was to be conducted.
In particular, the defendant relied upon the provisions of the Practice Notes as indicating that it was not mandatory for all members of the Review Panel to undertake the examination. She also drew attention to the fact that s 66(3) of the MACA did not specifically provide that all members of a Review Panel are required to conduct any examination.
As well, the defendant drew attention to the fact that in the contents of the reasons, there were significant and frequent references to her history as provided to the members of the Review Panel who undertook the examination, being set out in direct speech. She submitted that that material was sufficient to enable the third member of the Review Panel to have adequate information for the purpose of the assessment.

Ground 2

On the second ground, the defendant submitted that there was no requirement on the part of the Review Panel to provide reasons specifically addressed to the deduction of 1%, and even if there was, the reasons were adequate.
The defendant drew attention to the provisions of s 61(9) of the MACA, which provides: "A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence."
The defendant submitted that the Review Panel's Certificate was conclusive evidence only as to the certification that the degree of permanent impairment of the injured person as a result of the injuries referred to that were found to be caused [by the motor vehicle accident] is greater than 10%. The defendant drew attention to the terms of s 58(1)(d) of the MACA which she submitted articulates that proposition.
It was submitted that the Certificate was not conclusive evidence of the defendant's pre-existing impairments and, accordingly, the Review Panel was not required to give any reasons.
The defendant submitted that, in any event, the reasons given by the Review Panel were adequate and sufficiently detailed. She noted that the extensive pre-existing history had been canvassed and a conclusion about the defendant had been drawn from it.
The defendant drew attention to the fact that the Panel accepted her version of her current level of functioning and then turned to consider the pre-existing impairment. The Panel recorded in narrative form the pre-existing functionality of the defendant in the Psychiatric Impairment Rating Scale ("PIRS") table, and drew conclusions as to the scores which should be attributed to that pre-existing disability.
Ultimately, the defendant submitted that the text of the reasons for the assessment with respect to the pre-existing condition, when combined with the record of allocation of value in the PIRS tables, was sufficient to explain the actual process of reasoning by which the Review Panel formed its opinion and that there was no error of law.
Finally, it was also submitted that there is no free-standing common law duty to give reasons in the absence of a statutory requirement.

Ground 3

With respect to the third alleged error, the defendant submitted that, of itself and without more, the fact that the Review Panel applied the process required in the PIRS table and allocated values to the various items there raised, was sufficient in the absence of any specific criticism of one or other items to demonstrate that the result was one which was open to it and therefore not legally unreasonable.

Ground 1

It is appropriate that I consider the application of the MACA and Guidelines prior to considering the conflicting decisions in Wolarczuk on one hand, and Bradley and Mackenzie on the other.
It is unnecessary to set out in this judgment the detail of the statutory power with which the Review Panel was obliged to comply. It is a question of the proper analysis of that statutory power.
It is important to note that the MA Guidelines were replaced in 2018 by the Motor Accident Guidelines. Those new Guidelines, which came into effect on 13 July 2018, only apply to motor accidents occurring on or after 1 December 2017, and thus have no application here.
It was accepted by both parties that the matter which was referred to the Review Panel was that fixed in s 58(1)(d) of MACA, namely: "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident was greater than 10%."
Both parties accepted that the certificate issued by the original medical assessor, Dr Jones, as well as the Certificate issued by the Review Panel, each certified that the degree of permanent impairment of the defendant as a result of the injury, or injuries, caused by the motor accident, was greater than 10%.
It was also accepted by both parties that the fact-finding body charged with determining the appropriate amount of compensation was bound by the finding that the permanent impairment of the defendant was greater than 10%, but was not bound by anything else in the Certificate. Putting it differently, damages are to be assessed on the basis of the material before the fact‑finding Tribunal, and not on the basis of the percentage determined by the Review Panel of the extent by which the permanent impairment exceeded 10%, and the extent by which damages ought to be reduced to reflect the fact that the defendant had a pre-existing impairment.
The other contextual matter which needs to be kept in mind is that although the defendant was only basing her claim for a whole person impairment of greater than 10% upon psychological or psychiatric injury, there are many cases in which claimants will make a claim for permanent impairment based upon a combination of different types of injury. Here, the Review Panel which was appointed consisted of three psychiatrists. However, in cases where a claimant claims a range of different injuries that fall within different specialities or areas of expertise, it is open to the Proper Officer to appoint a review panel which does not include members who hold the same medical specialty or who have similar expertise as each other.
The central provision is s 63 of the MACA. It is in the following form: "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."
The assessment which is to be undertaken on a review is a new assessment of all of the matters with which the medical assessment is concerned: s 63(3A). It is open to the Review Panel to confirm the assessor's certificate or revoke that certificate and issue a new certificate: s 63(4).
The Review Panel is to consist of at least three medical assessors. It may consist of more. No particular speciality is provided for in the MACA with respect to the Review Panel: s 63(3).
The MACA does not otherwise specify the way in which any assessment is to be carried out, nor does it mandate any particular assessment or reasoning process.
Section 44 is the statutory authority for the issuing of the MA Guidelines. Section 44(7) applies the provisions of ss 40 and 41 of the Interpretation Act 1987 to any MA Guideline issued under s 44 "… in the same way as those sections apply to a statutory rule".
Clearly, the MA Guidelines cannot prevail over the MACA. That is to say that, to the extent that they are inconsistent with the provisions of the MACA, the provisions of the MACA must prevail. If there is no inconsistency between the MA Guidelines, and the terms of MACA, then the Guidelines are applicable for their full force and effect.
Section 65(1) of the MACA provides that medical assessments carried out under Pt 3.4 of the MACA, which was the assessment upon which this Review Panel was engaged, are: "… subject to relevant provisions of Motor Accidents Medical Guidelines relating to the proceedings for the referral of disputes for assessment or review of assessments and the procedure for assessment".
Chapter 16 of the MA Guidelines applies to reviews of medical assessments carried out pursuant to s 63 of the MACA. Clause 16.22 provides that if the Review Panel determines that a re-examination is required, Chapters 10-12 inclusive apply "… to the re-examination". Clause 16.26 provides that the Review Panel is "… to act as expeditiously as practicable in the circumstances".
Clause 11.1 (which is part of Chapter 11) provides that in conducting an assessment, an assessor (including a member of any Review Panel), may determine the assessor's own procedure and is not bound by the rules of evidence and may inquire into any issue in such manner as they think fit. Clause 11.3 provides that an assessor is to "inform him or herself on any issue as they see fit". Clause 11.5 provides that an assessor is to "progress the assessment of the dispute as quickly, fairly and as cost effectively as is practicable".
It cannot be doubted that the Review Panel is obliged to undertake a new assessment of all matters with which the medical assessment is concerned: s 63(3A) of the MACA. Equally, such assessment is contained in a single certificate: s 63(4) of the MACA. It is this statutory process to which the remarks in the judgment of Giles JA in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609 at [23] and [38] were directed.
Giles JA said at [23]: "23. …. The plain purpose of s 63 is that the collegiate professional expertise of three or more medical assessors should be applied in the review, resulting in an assessment which is more likely to be correct and to be accepted by the parties to the medical dispute."
His Honour went on to describe the Review Panel as having one task, being "… to review the medical assessment referred to it and either confirm the Medical Assessor's certificate or revoke it and issue a new certificate": at [38]. His Honour further emphasised that in participating in the review process, the legislation called upon members of the Review Panel to engage in an exercise of professional judgment.
But, as it seems to me, the MA Guidelines make it clear that the procedure by which the Review Panel is to go about the statutorily fixed task is a matter entirely for it, subject to any specific provisions of the Guidelines. In particular, clause 11.1 of the MA Guidelines provides that an assessor "may determine their own procedure and is not bound by the rules of evidence and may inquire into any issue in such manner as they think fit." That clause provides the widest discretion to the individual assessors, including those that are part of a Review Panel, to engage in the exercise of their professional judgment in a way which best promotes it.
The MA Guidelines recognise that a Review Panel may not agree on one or more aspects of the assessment which is undertaken (of which an examination is a part). It provides for a mechanism whereby, in effect, the majority view prevails.
In those circumstances, it seems to me that if a Review Panel agrees amongst itself (as occurred here), that, consistently with the Guidelines referrable to proceeding as expeditiously as practicable, and undertaking and progressing an assessment as quickly, fairly and cost-effectively as is possible, the course which it will follow is to have an examination conducted by fewer than all members of the Review Panel, then that is an available procedure which is not inconsistent with MACA or any specific guideline.
It follows that I would conclude, without reference to any decided authority, that the procedure adopted by the Review Panel here, in respect of the examination, was not contrary to the Act or Guidelines and that, accordingly, the conclusion reached by the Review Panel based on that examination was not invalid or void for that reason.
In Wolarczuk, Schmidt J concluded to the contrary. Her Honour's conclusion at [110], extracted above at [19], followed upon a reference to the remarks of Giles JA in McKee at [23] and [38] to which attention has been earlier drawn. Her Honour's reasoning in Wolarczuk at [86] was as follows: "86 Consistently with this approach to purpose of the section [s 63 of the MACA] and the requirements of the 'one task' involved in the review process established by s 63, all three members of a review panel which determines the re-examination is necessary, must be involved together in that examination, as a part of the new 'assessment of all the matters with which the medical assessment is concerned', which s 63(3A) requires."
In undertaking the assessment required of it by the statute, it seems to me to be wrong to consider any of the steps which any assessor might take to arrive at that assessment as being the same as the assessment itself.
To take an extreme example, an assessor who is a member of the Review Panel may have a view based upon their clinical experience and professional judgment that the results of a particular test carry little weight in the overall assessment of a person's impairment. Another assessor on the Review Panel making their clinical assessment and exercising their professional judgment may take the view that the results of such test are of great significance and should substantially underpin a conclusion which they reach. Such a disagreement of view may lead one assessor to place little weight on the results of a test and the other assessor to place great weight on them. Both assessors may arrive at the same conclusion upon their assessment of the individual. But they have reached that conclusion by different paths of reasoning, exercising their professional judgment.
In that example, the fact that the Review Panel as a whole agreed that the test should be administered did not require all three members to place any weight on the result of the test. In those circumstances, the fact that one Panel member was not present at the test would not derogate from the exercise of their professional judgment, the collegiality of the process, the discussions in which the members of the Review Panel would engage and their reaching of an appropriate conclusion.
Putting it differently, in circumstances where a multi-member Panel is required to come to a conclusion by a majority on a single question, exercising their professional skill and judgment, and in circumstances where no single procedure is determined by the MACA or Guidelines, it must follow that the MACA and Guidelines leave it to those individuals in the exercise of their professional judgment to go about their task in the way they see fit. It necessarily follows from this that if only two of the members of the Panel attend a medical examination which is only one part of the ultimate assessment then there is no reason to hold that the conclusion to which the Panel has come is for that reason void and liable to be set aside.
It follows that I, with great respect, find myself unable to agree with the conclusions of Schmidt J in Wolarczuk.
It follows that I prefer the interpretation of the Act and legislation which is consistent with, and which follows that determined by Adamson J in Bradley and Mackenzie.
The first ground relied upon by the NRMA fails.

Ground 2

This ground raises a question of the adequacy of reasons for the determination by the Review Panel of the pre-existing impairments of the defendant. The standard against which the records are to be judged is that set out in Wingfoot at [55], to which reference is made at [24] above.
The reasons of the Review Panel with respect to pre-existing impairment have these features: 1. the establishment of the extent of the defendant's recent impairment level of 24% for the reasons and on the bases set out. The NRMA did not suggest that these reasons were inadequate; 2. a detailed description of the evidence and documents which were considered. That included various medical notes and other records about the defendant prior to the occurrence of the motor accident on 8 April 2014; 3. a full description of the history taken about the defendant's "Pre‑Accident Functioning", including comments about its veracity; 4. a consideration of the percentage of impairment which pre-existed the motor accident by the use of the PIRS Tables, including the allocation of values in each category for the short reasons expressed in the table.
To fully understand the scores allocated according to the PIRS, reference is needed to clauses 7.19 and 7.20 of the Motor Accidents Permanent Impairment Guidelines (also now repealed) and Table 7.1 to Table 7.6 inclusive. In those Tables descriptions are given which assist in the determination by the Review Panel of an appropriate class which most accurately represents the defendant's impairment. However, there is no need for the reasons of the Review Panel to include those descriptions which are well understood, and which are readily available.
In my view, the reasons of the Review Panel were ample and adequate, and well satisfy the standards required of it. This ground fails.
As I have reached this view, there is no need for me to reach a concluded view on the defendant's submissions encapsulated at [39] above. Whether or not the Review Panel was obliged by the MACA to give reasons for its determination of the level of pre-existing impairment, it in fact did so, and the determination of this submission is otiose.

Ground 3

This is a ground which, in my view, is without merit.
The NRMA invites the Court to infer from the low percentage allocated to pre-existing impairment by the Review Panel, particularly when compared with allocated percentages by other experts, that the Review Panel must have reached a decision which was legally unreasonable, and that therefore there must have been a failure to consider and give weight to a relevant factor of significance.
There are a number of reasons for not accepting this submission. First, as I have earlier held, the Review Panel have given adequate reasons for reaching their conclusion. Those reasons, on their face, do not bespeak any illogicality or irrationality. Further, the Review Panel was not required to adopt a reasoning process of the kind that a Court would adopt, contrary to the NRMA's submission.
Secondly, it is sufficiently clear from the Review Panel's decision that it had referred to the varying opinions of other experts as to the extent of their assessment of pre-existing impairment and other aspects of the defendant's current condition. For example, the Review Panel noted that the reports of Dr Lowy (that found that the defendant was exaggerating her condition) were "helpful", but "contained no evidence based material that incontrovertibly demonstrated exaggeration or malingering."
Thirdly, it is also clear that the Review Panel had significantly more extensive material, and the benefit of the results of the recent examination of the defendant, to assist their opinion when compared with other experts.
No attempt was made by the NRMA to address this issue.
In my view, it has not been demonstrated that the decision was attended by any legal unreasonableness, and this ground must fail.

Conclusion

For the foregoing reasons, I am not satisfied that the NRMA's attack on the conclusion of the Review Panel has succeeded. It follows that the Summons filed by the NRMA must be dismissed.

Costs

There is no reason why costs should not follow the result. No party addressed the Court with any contrary arguments.
As the second and third defendants filed submitting appearances, no order for their costs need be made.

Orders

I make the following orders: 1. Summons dated 16 March 2018 is dismissed. 2. Order the plaintiff to pay the first defendant's costs. 3. No order as to costs of the second and third defendants.

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: 06 December 2018

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