Insurance Australia Group Ltd t/as NRMA Insurance v Welsh

The factual circumstances

1. On 14 August 2016 Mr Welsh's mother was injured in a motor accident at Coonamble. She subsequently died as a result of her injuries.
2. Mr Welsh claims damages from NRMA, which is the third party insurer of the vehicle which NRMA accepts was at fault in the accident. Mr Welsh claims that he suffered psychological injury in the form of nervous shock as a result of the injuries to, and death of, his mother. The parties accept that s 31 of the Civil Liability Act 2002 (NSW) is satisfied in that Mr Welsh is acknowledged to have a recognised psychiatric illness arising from his mother's injuries and death. NRMA however contends that Mr Welsh is precluded from claiming damages for non-economic loss by reason of s 131 of the MAC Act. That section prohibits the award of damages for non-economic loss "unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%". In the event of a dispute as to this, the degree of permanent impairment must be assessed by a Medical Assessor under Part 3.4 of the MAC Act before an award of damages can be made (s 132 of the MAC Act).
3. The dispute was referred by the Medical Assessment Service ("MAS") of the Authority to Dr Robert Gertler, a psychiatrist, for assessment. Dr Gertler issued a certificate assessing Mr Welsh's whole person impairment as a result of mental harm caused by the accident as 21%, after he made a deduction of 1% for pre-existing impairment.
4. NRMA then applied to have the certificate referred to a Review Panel. It was only entitled to require this to occur if the Proper Officer of the Authority was 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" (s 63(3) of the MAC Act as it then was; now sub-s (2B)). The Proper Officer, Mr Lum, was not however so satisfied, with the result that the review application was dismissed.

The regulatory framework

1. As the subject motor accident occurred in 2016, the MAC Act applies (rather than the subsequently enacted Motor Accident Injuries Act 2017 (NSW), which applies to motor accidents that occurred after 1 December 2017). Since the events relevant to these proceedings, substantial amendments have been made to the MAC Act by the Personal Injury Commission Act. The regulatory framework set out below refers to the legislation as it was at the relevant time (but the present tense is used to avoid confusion).
2. Part 3.4 of the MAC Act, comprising ss 57 to 65, deals with medical assessment, including, by s 58(1)(d), of "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%". The following further provisions then appear: 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. … 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. ... (9) 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. … 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. … (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.
3. Also relevant is s 44 of the MAC Act which is as follows: 44 Medical Guidelines of Authority (1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following: … (c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, (d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.

Medical Assessment Guidelines

1. The Medical Assessment Guidelines issued by the Authority under s 44(1)(d) of the MAC Act, applying to motor accidents occurring between 5 October 1999 and 30 November 2017, includes the following concerning medical assessment certificates: "[13.2] The certificate shall include written reasons for the determination in the form approved by the Authority. … [13.5] An Assessor to whom a permanent impairment dispute is referred requiring either a psychiatric or psychological injury assessment, or requiring a physical injuries assessment by a single Assessor, that does not require the issuing of a combined certificate, is to send to MAS a certificate certifying: [13.5.1] the list of the injuries referred and whether they were each found to have been caused by the accident; [13.5.2] the degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused; and [13.5.3] whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10%."

Motor Accident Permanent Impairment Guidelines

1. These Permanent Impairment Guidelines issued by the Authority under s 44(1)(c) of the MAC Act (the version applying to motor accidents that occurred between 5 October 1999 and 30 November 2017) include the following provisions relevant to the assessment of permanent impairment resulting from mental and behavioural disorders.
2. Under the sub-heading "Pre-existing impairment" are the following relevant clauses: "[1.31] 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. … [1.33] Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident."
3. Following this is a sub-heading "Subsequent injuries", which says: "[1.34] The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored."
4. In the section concerning "Mental and behavioural disorders", clause 1.203 requires the assessment to be undertaken in accordance with the psychiatric impairment rating scale ("PIRS") as set out in the Guidelines. This in turn requires the assessment of the extent of impairment by reference to six "areas of function", namely, self-care and personal hygiene; social and recreational activities; travel; social functioning (relationships); concentration, persistence and pace; and adaptation. The level of functioning in respect of each area is to be rated by reference to five classes, on a scale of 1 to 5, according to the severity of the impairment. Class 1 indicates no or only minor impairment and Class 5 indicates total impairment. Details are then given of how the level of psychiatric impairment is to be calculated by reference to the values attributed to each area of functioning.
5. Clause 1.213 is in the following terms: "The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based."

Mr Welsh's application for assessment of permanent impairment

1. Mr Welsh's application, which was signed by his legal representative, indicated that there was a dispute with NRMA as to whether Mr Welsh's degree of whole person permanent impairment caused by the motor accident was greater than 10%. In the section concerned with "Injuries information", the "Bodily location of injury" was identified first as "Psychological", with the "Injury type" being "Bipolar, Depression, Mood Disorder". A further entry in respect of "Bodily location of injury" was "Psychiatric" with the same description of "Injury type".

Dr Gertler's certificate dated 4 October 2020

1. The 10-page certificate commences with the following in a box on the first page: "The following injuries caused by the motor accident give rise to a permanent impairment which IS GREATER THAN 10%: - Psychological/psychiatric - bipolar/depression/mood disorder."
2. It then states that "[d]etails of the assessment are set out in the reasons below, which form part of this certificate".
3. Section 1 of the reasons ("Dispute Details") states the following: "The injured person attended at the request of the Medical Assessment Service (MAS) for the purposes of assessment and resolution of the following medical disputes in accordance with Part 3.4 of the Act: - whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10%."
4. Section 2 ("Introduction") states the following under the heading "List of Injuries to be Assessed": "The following injuries, as listed in the referral letter from MAS, were assessed: - Psychological/psychiatric - bipolar/depression/mood disorder". This description of the injuries was also the same as that in Mr Welsh's application (see [17] above).
5. In Section 3 ("History as Given by the Injured person") Dr Gertler says that Mr Welsh informed him that he "had a long history of anxiety and depression", that he was currently taking an antidepressant medication and a tranquiliser, and that he had been, but was no longer, on "mood stabilising medication because a diagnosis of bipolar mood disorder had been made in 2018".
6. In Section 4 ("Findings on Clinical Examination") Dr Gertler says that Mr Welsh's affect was labile and his mood appeared depressed.
7. In Section 5 ("Review of Documentation") Dr Gertler's summary of the documentation includes the following.
8. First, he notes that Dr D Bailey had on 20 March 2018 diagnosed Mr Welsh as having "depression/anxiety/post-traumatic stress reaction".
9. Secondly, he notes that on 22 August 2018 Dr M Jones diagnosed Mr Welsh as suffering from "a major depressive disorder 'with some prominent anxious symptoms'", with Dr Jones noting a past history of anxiety and depression.
10. Thirdly, Dr Gertler notes: "A/Prof Robertson was of the opinion that Mr Welsh had 'presumed type 2 bipolar disorder' and that when he assessed him, he was in the 'depressive pole' of that disorder. There having been an exacerbation caused by 'the traumatic grief of his mother's death'."
11. In Section 6 ("Conclusions"), under the sub-heading "Diagnosis and Causation", Dr Gertler notes that Mr Welsh had "a long history of anxiety and depression" prior to the motor accident and continues: "There is a suggestion that Mr Welsh suffers from bipolar mood disorder, which from an early age he had been unaware of and had attempted to control largely through poly-substance abuse. As it happened, he was only given that possible diagnosis in 2018. Following the motor vehicle accident and his mother's death some two months later, Mr Welsh developed a grief reaction which whilst initially appropriate, subsequently persisted and became abnormal. He withdrew socially, had difficulty sleeping with recurrent dreams and nightmares related to his mother, felt extreme guilt concerning her death and developed difficulties with concentration and memory. He was also unable to resume any form of employment. The relationship in which he was involved at the time ended, and he has only in the past three months again been able to achieve some stability in a new relationship, although that relationship is extremely supportive and directive in its nature. The diagnosis of bipolar mood disorder is certainly possible. Depression as part of that mood disorder would be consistent with the condition, and the death of Mr Welsh's mother could well have precipitated a depressive episode which has not responded significantly to treatment and appears to have become gradually worse."
12. Under further sub-headings in that Section, Dr Gertler states the following: "Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE caused by the motor accident: - Depression Injuries under this heading have not been included in my assessment of the degree of permanent impairment of the injured person. Summary of Injuries Listed by the Parties and Not Caused by the Accident The following injuries WERE NOT caused by the motor accident: - Bipolar mood disorder".
13. In Section 7 ("Determinations") Dr Gertler states that his determination as to permanent impairment is "made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Motor Accident Permanent Impairment Guidelines 1 June 2018".
14. Under a sub-heading in Section 7 of "Degree of Permanent Impairment", Dr Gertler identifies the "Psychiatric Diagnoses" as "1. Depression" and "2. Bipolar mood disorder". In the table that follows he then attributes values out of a range of 1 to 5 in relation to the six different areas of Mr Welsh's functioning relevant to the degree of his permanent impairment as specified in the Permanent Impairment Guidelines (see [15] above). This produced an aggregate score of 18 (out of a possible 30) from which Dr Gertler calculated a 22% whole person impairment in accordance with the Guidelines.
15. Under further sub-headings in Section 7 of "Apportionment" and "Pre-existing/subsequent impairment" (under which it says "[t]here is a history of pre-existing impairment"), Dr Gertler includes in a box in respect of "Psychiatric diagnoses", "1. Anxiety" and "2. Depression". He then assesses the same six areas of functioning relevant to the degree of impairment, attributing the value of 1 (being the lowest in the range) to four items and the value of 2 to two items, resulting in an aggregate score of 8 and a "Pre-existing % Whole Person Impairment" of 1%.
16. On the last page of his certificate, Dr Gertler notes a current permanent impairment of 22% from which he deducts 1% in respect of "Pre-existing/subsequent % permanent impairment", to derive a final percentage for permanent impairment resulting from the motor accident of 21%.

Mr Lum's determination of 3 February 2021

1. Mr Lum stated that he was not, for the purposes of s 63 of the MAC Act, satisfied that "there is reasonable cause to suspect that [Dr Gertler's] medical assessment was incorrect in a material respect". Mr Lum's reasoning included the following: "[9] I accept that the applicant points out what could be inferred to as errors or inconsistencies in the assessment report and, as a result, the assessment reads a little confusing. However, what is clear is that the Assessor provided two separate assessments - the claimant's pre-existing impairment and the claimant's current impairment. Although the Assessor has muddled the placement of the diagnoses, the reasons for the diagnoses are clear, and there is no suggestion this has impacted his assessment of the claimant's pre-existing and current impairment. [10] As such, and without particulars from the applicant on how the errors (or inconsistencies) render the assessment materially incorrect, I cannot be satisfied of reasonable cause to suspect that the assessment is incorrect in a material respect."

The parties' submissions on the judicial review application

NRMA's submissions

1. NRMA first submitted that in the box on page 1 of his certificate Dr Gertler certified that three psychiatric disorders (namely, a bipolar disorder, depression and a mood disorder) were caused by the motor accident, whereas later in his certificate he found that only one of those disorders (namely, "Depression") was so caused, with the other two conditions (which NRMA said he combined into the expression "Bipolar mood disorder") being unrelated to the accident.
2. NRMA then contended that there were "two clear and obvious errors" on the face of Dr Gertler's certificate, as follows: "1. It is unclear in the first table of assessment under the PIRS scale, being impairment arising from the accident in August 2016, whether Dr Gertler has or has not taken into account impairment arising from the Bipolar mood disorder diagnosed in 2018. No account should have been taken of impairment arising from the Bipolar mood disorder which Dr Gertler found to be probably present from an early age but undiagnosed until 2018. 2. If Dr Gertler intends the first table of assessment under the PIRS scale to exclude impairment arising from Bipolar mood disorder, then impairment arising from that disorder has not been dealt with at all by Dr Gertler. Impairment arising from the First Defendant's Bipolar mood disorder had to be dealt with by Dr Gertler, either as a pre-existing impairment, or as impairment arising from a subsequent event (being the diagnosis of that condition in 2018)."
3. As to Mr Lum's decision, NRMA submitted that it was not Mr Lum's role to draw inferences about what Dr Gertler meant in his certificate when Dr Gertler's reasoning was not clearly exposed. NRMA complained also that Mr Lum did not address the significance of Dr Gertler not having assessed Mr Welsh's "Bipolar mood disorder".
4. NRMA then referred to its four stated grounds for supporting its judicial review application. These were as follows: Ground 1: Dr Gertler failed to carry out his statutory task. Ground 2: Dr Gertler failed to comply with the Permanent Impairment Guidelines. Ground 3: Dr Gertler failed to provide adequate reasons. Ground 4: The Proper Officer failed to suspect material error.
5. As to Ground 1, NRMA reiterated its argument that Dr Gertler failed to indicate whether he included or excluded bipolar mood disorder in his assessment of 21% permanent impairment caused by the motor accident.
6. In support of Ground 2, NRMA asserted that Dr Gertler failed to comply with clauses 1.31 and/or 1.34 of the Permanent Impairment Guidelines (see [13] and [14] above) by not clearly identifying whether he regarded a bipolar mood disorder as having arisen as a result of, or alternatively independently of (whether it was either pre-existing or subsequently obtained), the motor accident and, whichever was the case, by not calculating its impact on Mr Welsh's accident-caused permanent impairment.
7. In support of Ground 3, NRMA submitted that Dr Gertler's reasons are internally inconsistent for the reasons identified in [35] above.
8. In support of Ground 4, NRMA reiterated that Mr Lum did not address Dr Gertler's failure to "assess impairment arising from [Mr Welsh's] Bipolar mood disorder anywhere in his Certificate and reasons".

Mr Welsh's submissions

1. Mr Welsh referred to the requirement under clause 1.31 of the Permanent Impairment Guidelines for the assessor to value any "pre-existing symptomatic permanent impairment" and submitted: "Anxiety and depression are the 'medical symptoms' he was demonstrating before the accident. Bipolar disorder is a mental health diagnostic 'condition' not a 'symptom'. Anxiety and depression are how it manifested, therefore it has been taken into account by Assessor Gertler."
2. He then submitted that what Dr Gertler was saying in his certificate was that whilst Mr Welsh had a pre-existing bipolar mood disorder that was "manageable", as a result of the motor accident there emerged in Mr Welsh "a protracted and debilitating major depression, likely a depressive pole of a bipolar disorder following the traumatic grief of his mother's death". Mr Welsh ultimately contended that Dr Gertler's certificate should be construed beneficially to Mr Welsh, and that when that is done, the reasoning it contains is sufficiently clear.

Determination of the judicial review application

1. For the following reasons I accept that Dr Gertler's certificate does not indicate clearly that he performed the task committed to him and that it does not sufficiently state the terms of his conclusion. It follows that there was legal error in the certificate and in Mr Lum not being satisfied that there was reasonable cause to suspect that Dr Gertler's assessment was "incorrect in a material respect".
2. By reason of s 60 of the MAC Act, Dr Gertler was obliged to provide an assessment in relation to the medical dispute referred to him by the Authority. This was a dispute as to whether "the degree of permanent impairment of [Mr Welsh] as a result of the injury caused by the motor accident is greater than 10%" (see s 58(1)(d)). Dr Gertler was obliged to give a certificate as to the matters referred to him for assessment (s 61(1)) and to set out his reasons in the certificate (s 61(9)).
3. The referral letter to Dr Gertler from the Medical Assessment Service ("MAS") of the Authority is referred to in Dr Gertler's certificate but is not in evidence before the Court. As Dr Gertler describes the letter, it referred the following injuries to him for assessment: "Psychological/psychiatric - bipolar/depression/mood disorder".
4. This description, which reflected the terms of Mr Welsh's application to the Authority (see [17] above), was imprecise. For example, it is not clear if the word "Depression" was intended to refer to a separate disorder or to be equivalent to the adjective "depressive" and be part of a reference to "bipolar depressive disorder". It is also unclear whether "bipolar" is used, as is common, as an adjective, in this case to qualify "depression" or both "depression" and "mood disorder", or was used as a noun. The use of the description by the authors of the referral letter and Mr Welsh's application is however explicable by the differing diagnoses earlier given by other doctors as recounted in Dr Gertler's certificate (see [25]-[27] above).
5. Dr Bailey had diagnosed "depression/anxiety/post-traumatic stress reaction", and Dr Jones had diagnosed "a major depressive disorder with some prominent anxious symptoms" and noted Mr Welsh's "past history of anxiety and depression". Associate Professor Robertson had diagnosed a "presumed type 2 bipolar disorder" with Mr Welsh being at the time of assessment in the "depressive pole" of that disorder. In his report of 29 August 2018, to which Dr Gertler refers in his certificate, A/Prof Robertson referred to Mr Welsh having a history of episodes of hypomania and concluded that it is probable that there was a pre-existing history of bipolar disorder, with Mr Welsh's mother's death having precipitated in Mr Welsh "a severe depressive pole of his putative bipolar disorder". Presumably the hypomania constituted the other pole of the bipolar disorder.
6. The correct and precise diagnosis of Mr Welsh's condition was thus clearly open to somewhat different views. It was not however disputed in any of the material to which Dr Gertler referred, nor in this Court, that Mr Welsh has a recognised psychiatric illness falling within the broad terms of the letter from the MAS to Dr Gertler. In light of the differing diagnoses, it was understandable that a general expression should be used in the referral letter to ensure that Mr Welsh's psychiatric illness and his consequent impairment were covered by the assessment. To this end, the expression in the referral letter thus did not refer to a single precisely described psychiatric condition but was capable of covering more than one related conditions. For example, "depression" was capable of referring to an aspect of a bipolar mood disorder or to a separate condition.
7. These considerations arguably explain Dr Gertler's use of the same expression in the box on the first page of his certificate - that is, he was providing a direct answer to the question referred to him. The precise identification of Mr Welsh's undoubted psychiatric condition was not of significance for the purpose of providing that answer so long as the disorder Dr Gertler diagnosed fell under the umbrella of the general description "bipolar/depression/mood disorder".
8. Clause 1.213 of the Permanent Impairment Guidelines (see [16] above) did however require him to identify in the certificate his psychiatric diagnosis and the diagnostic criteria on which it was based. He did the former by stating in Section 6 that "Depression" was the psychiatric injury caused by the motor accident and he did the latter by describing earlier in Section 6, and in Section 5, the matters that led him to that diagnosis. NRMA, understandably, did not contend that Dr Gertler did not comply with clause 1.213.
9. In Section 6 of his certificate (headed "Conclusions"), Dr Gertler referred to Mr Welsh as having had a "long history of anxiety and depression" prior to the motor accident and to "a suggestion" (by A/Prof Robertson) that Mr Welsh suffers from bipolar mood disorder which he had had "from an early age". Dr Gertler described that "bipolar mood disorder" as "possible" but did not adopt it as a diagnosis. Dr Gertler did not mention, but was no doubt aware from A/Prof Robertson's report, that the latter had recorded a history of hypomania which was no doubt the other pole (the first being depression) in Mr Welsh's bipolar disorder diagnosis. Dr Gertler went on to suggest that Mr Welsh's mother's death "could well have precipitated a depressive episode which has not responded significantly to treatment and appears to have become gradually worse".
10. These observations are consistent with Dr Gertler's immediately following identification of "Depression" as the psychiatric injury caused by the accident and "Bipolar mood disorder" as an injury not caused by the accident. The latter conclusion was arguably appropriate because although Dr Gertler had not diagnosed bipolar mood disorder, A/Prof Robertson had and Dr Gertler regarded this diagnosis as "possible". Moreover, Dr Gertler's heading stated that he was referring to injuries "Listed by the Parties". It was therefore appropriate for him to indicate that if Mr Welsh did have a bipolar mood disorder that it was not caused by the motor accident.
11. In his Section 7 ("Determinations") Dr Gertler first deals with Mr Welsh's current condition. It is curious that "Bipolar mood disorder" appears there when Dr Gertler described it as a "possible" diagnosis but did not adopt it as such. Perhaps at this point Dr Gertler was intending to make a positive diagnosis of "Bipolar mood disorder". Whether that is so or not, Dr Gertler needed to make it clear, as he had done in Section 6 (see [28] above) that any such "Bipolar mood disorder" was not caused by the motor accident and deduct its impact from his calculation of total current impairment. He did not however do this because at the place in his certificate where he allowed for the impact of pre-existing or subsequent conditions (see [32] above), Dr Gertler referred only to "Anxiety" and "Depression" as pre-existing conditions. As a result of his reasoning, it appears that "Bipolar mood disorder" was included as a contributor to Mr Welsh's current impairment but, despite Dr Gertler's explicit recognition in Section 6 that it was not caused by the motor accident and was therefore a pre-existing condition, its impact on Mr Welsh's current condition was not removed from the assessment.
12. It might be argued that where Dr Gertler referred to pre-existing conditions of "Anxiety" and "Depression" he was referring to a "Bipolar" condition and thus simply using different words to describe a "Bipolar mood disorder". As this is no more than a possibility, it does not resolve the inconsistency which I see as appearing on the face of the certificate. I add as an aside that it is apparent from A/Prof Robertson's report (see [49] above) that the two poles of the "Bipolar mood disorder" that he diagnosed were hypomania and depression, not anxiety and depression, this seemingly being in accordance with ordinary medical terminology.
13. In these circumstances I consider that Dr Gertler's certificate manifests an error of law in that it does not state clearly the degree of Mr Welsh's permanent impairment attributable to the motor accident because, on its face, it identifies a pre-existing psychiatric condition for which Dr Gertler has not made allowance. More specifically, the certificate does not conform with cl 1.31 of the Permanent Impairment Guidelines which requires the impact of pre-existing conditions to be "calculated and subtracted" (see [13] above).
14. It follows from these conclusions that, whilst it may be correct as Mr Lum said that Dr Gertler "muddled the placement of the diagnoses" (see [34] above), the outcome of the "muddling" was a certificate that did not conform with the regulatory requirements. As a result, Mr Lum ought to have suspected that Dr Gertler's assessment was "incorrect in a material respect". Mr Lum's decision therefore also involved legal error as he was mistaken in not identifying the legal error, or at least suspecting its existence, in Dr Gertler's certificate.
15. For these reasons, orders should be made setting aside the decisions of Dr Gertler and Mr Lum and remitting the matter to the second defendant to be referred to a medical assessor for determination according to law.
16. NRMA submitted that in that circumstance the Court should direct that the further medical assessment which will need to take place should not be undertaken by Dr Gertler. On the other hand, Mr Welsh submitted that the assessment should be remitted directly back to Dr Gertler because his familiarity with the matter would enable the matter to be dealt with efficiently.
17. There are cases in which the Court has remitted assessments to a different assessor or Review Panel (see for example Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22, Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077 and Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558). In the present case there has however been no denial of procedural fairness, nor any published prejudgment by Dr Gertler of a type that would or should disqualify from him from providing a further certificate. The reason that his certificate has been set aside in the present case is that he has not made his views known in a clear fashion. I do not consider that in these circumstances Dr Gertler should be precluded from undertaking any further assessment. Rather, whether there should be a further reference to Dr Gertler should be left to the discretion of the second defendant in the exercise of his statutory function under s 60(2) of the MAC Act of choosing medical practitioners to undertake assessments.
18. For these reasons, I make the following orders: 1. Order that the time for the plaintiff to bring these proceedings by way of judicial review of the certificate of the third defendant dated 4 October 2020 be extended to the date upon which its summons was filed. 2. Order that that certificate be set aside. 3. Order that the matter be remitted to the second defendant to be referred to a medical assessor for determination according to law. 4. Order that the decision of the fourth defendant of 3 February 2021 be set aside. 5. Order that the first defendant pay the plaintiff's costs of these proceedings.

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: 28 October 2021