(1990) 170 CLR 321
Burrell v The Queen [2008] HCA 34
(2008) 238 CLR 218
Campbelltown City Council v Vegan and ors [2006] NSWCA 284
(2006) 67 NSWLR 372
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456
(1993) 43 FCR 280
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Source
Original judgment source is linked above.
Catchwords
(1990) 170 CLR 321
Burrell v The Queen [2008] HCA 34(2008) 238 CLR 218
Campbelltown City Council v Vegan and ors [2006] NSWCA 284(2006) 67 NSWLR 372
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456(1993) 43 FCR 280
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26(2003) 197 ALR 389(2003) 77 ALJR 1088
Kirk v Industrial Commission of New South Wales [2010] HCA 1(2010) 239 CLR 531
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40(1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6(1996) 185 CLR 259
Minister for Immigration and Citizenship v Li [2013] HCA 18(2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30206 CLR 323
Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20(1976) 136 CLR 1
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25(2012) 249 CLR 398
R v Australian Broadcasting TribunalEx parte 2 HD Pty Ltd [1979] HCA 62(1979) 144 CLR 45
Re Building Workers' Industrial Union of Australia
Ex parte Gallagher [1988] HCA 4
(1988) 76 ALR 353
(1988) 62 ALJR 81
Re Coldham
Ex parte Brideson [1989] HCA 2
(1989) 166 CLR 338
Re Coldham
Ex Parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association
Ex Parte Municipal Officers' Association) [1989] HCA 13
(1989) 63 ALJR 298
Rodger v De Gelder and Anor [2011] NSWCA 97
(2014) 226 FCR 255
Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21
Judgment (9 paragraphs)
[1]
Background
The claimant was injured in a motor vehicle accident on 21 November 2011. She was medically assessed by the Medical Assessor on or about 3 September 2013 and a certificate issued, as a result of that assessment, refusing to assess the claimant for whole person impairment on the basis that the claimant had not yet reached maximum medical improvement.
The Medical Assessor reassessed the claimant on 1 April 2014 for the same injuries. On 4 April 2014, the Medical Assessor issued a certificate to the effect that the claimant had "urinary tract including bladder-incontinence" injuries caused by the motor accident of 21 November 2011 which had given rise to permanent impairment of 15%.
NRMA asserts that there are jurisdictional errors and/or errors of law on the face of the record in the making of the first impugned decision.
It is alleged by NRMA that the Medical Assessor constructively failed to exercise his statutory power as an alternative (or perhaps a different way of expressing) the allegation that there were jurisdictional errors or errors of law on the face of the record. I will deal with the grounds of judicial review later in these reasons. However, it is sufficient at this stage to make clear that the allegations relate to the issue of causation. It is alleged that the Medical Assessor failed to consider the issue of causation adequately or at all; failed to comply with the Guidelines applicable to the assessment in relation to causation; and failed to give sufficient and lawful reasons for the determination and, as a consequence, it was not made according to the Act and Guidelines.
Following the making of the first impugned decision a further medico-legal report was obtained from Dr Korbel, Urologist, dated 6 November 2014 and NRMA lodged an application seeking a further medical assessment pursuant to s 62(1)(a) of the Act. That application was made on 18 November 2014. The proper officer, who is called upon to deal with the said application, refused the application for a further medical assessment by decision (issued by way of letter) dated 12 December 2014, which is the second impugned decision.
As a consequence of the refusal to refer the medical dispute to a further medical assessment, the dispute between NRMA and the claimant was referred to the Claims Assessor (the fourth defendant in these proceedings) and, before the Claims Assessor, NRMA made a further application for a further medical assessment, this time pursuant to the provisions of s 62(1)(b) of the Act.
The fourth defendant refused that application for referral by determination issued on 2 March 2015. Again, NRMA says that the second refusal, this time by the fourth defendant, to refer the medical dispute for a further medical assessment discloses jurisdictional error or errors of law on the face of the record and/or a constructive failure to exercise the statutory power reposed in the Claims Assessor.
At the hearing of the proceedings, the plaintiff's challenge to the decision of the proper officer, mentioned above, was abandoned, leaving an application for judicial review and a challenge to the validity of the Medical Assessor relating to causation and the decision of the Claims Assessor refusing to refer for further assessment the "medical dispute".
[2]
Grounds of Review
The grounds upon which NRMA relies in relation to the subsisting challenge to the decision of the Medical Assessor and the Claims Assessor are in the following terms:
A. Medical Assessor
(i) "There are a number of jurisdictional errors and/or errors of law on the face of the record as are described below that occurred in the making of the first impugned decision.
(ii) Alternatively, the respective medical assessor constructively failed to exercise his statutory power in making the decision.
(iii) In respect of the decision made by the third defendant, the medical assessor so erred in making the decision in the following respects:
(a) By reason of Part 3.4 of the Act and particularly sections 58 and 61(1) of the Act, together with the Motor Accidents Authority's Permanent Impairment Guidelines ('the PI Guidelines') (which are issued pursuant to s44 of the Act and have the force of delegated legislation) the medical assessor was required to undertake an assessment of the dispute, and particularly '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 third defendant was required to consider the issue of causation in accordance with the requirements of the Act, the PI Guidelines, and the common law. The third defendant erred in that he:
(i) Failed to consider the issue of causation adequately or at all; and/or
(ii) Failed to comply with the requirements of the PI Guidelines insofar as those Guidelines relate to assessment of causation; and/or
(iii) Failed to give sufficient and lawful reasons for his determination as to causation. The medical assessor was required to set out his real reasons for making the assessment decision pursuant to section 61(9) of the Act and he failed to do this, particularly as to causation. He set out his conclusions instead.
Accordingly, the first impugned decision was not made according to the Act and Guidelines, and it is ultra vires.
(b) The decision is afflicted by legal unreasonableness in that:
(i) no sensible medical assessor acting with due appreciation of his responsibilities would have so decided;
(ii) the medical assessor failed to give adequate weight to relevant factors of great importance;
(iii) the medical assessor gave excessive weight to irrelevant factors of no importance;
(iv) the medical assessor reasoned illogically or irrationally;
(v) the decision is a disproportionate response by reference to the scope of his power; and/or
(vi) the decision lacks evident and intelligible justification."
B. Challenge to Claims Assessor decision
(i) "There are a number of jurisdictional errors and/or errors of law on the face of the record as are described below that occurred in the making of the third impugned decision.
(ii) Alternatively, [the] fourth defendant constructively failed to exercise his statutory power in making the third impugned decision.
(iii) In respect of the decision made by the fourth defendant, the fourth defendant erred in making the decision in the following respects:
(a) The claims assessor found that in order to afford procedural fairness to the first defendant, Dr Korbel should have sought to examine the first defendant and question her regarding her pre and post-accident history. That finding forms part of the basis of his decision. The issue of Dr Korbel's non-examinatin of the claimant was not raised by either party to the dispute before the Assessor, and the Assessor did not notify either party of his intention to make adverse findings in relation to this issue. In making adverse findings regarding Dr Korbel's non-examination of the first defendant, the claims assessor fell into error as follows:
(i) The claims assessor had regard to irrelevant considerations, namely, whether the first defendant had been examined by Dr Korbel.
(ii) The claims assessor failed to afford procedural fairness to the parties, in that he failed to give the parties an opportunity to be heard on the issue of Dr Korbel's non-examination of the first defendant. Had the claims assessor given the parties this opportunity, he would have been informed that the first defendant's legal representatives had informed the plaintiff that the first defendant refused to attend for any medical examinations."
[3]
The Impugned Decisions
As earlier stated, there are now two decisions that are the subject of challenge, being the decisions described as the first impugned decision and the third impugned decision as defined above. Given the grounds for review, the terms of those decisions are important. It is not necessary, despite their importance, to recite the entirety of the decisions.
As is clear from the foregoing background, the Medical Assessor clinically examined the claimant on 3 September 2013 and certified that the pelvic injury - urinary/bladder was caused by the motor accident but refused to make an assessment because the injuries had not yet stabilised. The Medical Assessor expressed the opinion that the degree of permanent impairment of the injuries would be capable of assessment (or "should be capable") in six months from that date.
This first assessment, as earlier stated, included a clinical examination; a recitation of the pre-accident medical history; and an examination of the opinion of the treating gynaecologist to whom the claimant was referred, who had found the claimant had a "vaginal prolapse and urinary stress incontinence". Presumably, the gynaecologist formed this view after an internal examination, although there may not have been one given the difficulties experienced by the Medical Assessor, a Urologist. The gynaecologist had referred the claimant for a bladder ultrasound, which disclosed no abnormality. She returned to the gynaecologist three months thereafter at which time no treatment was offered. The continued treatment by the gynaecologist was interrupted because of the terminal illness and death of the claimant's husband in December 2012.
The Medical Assessor, on clinical examination, found that the claimant walked with a distinct right limp due to an unrelated issue and that her abdomen had no evidence of masses or tenderness and the bladder was not palpable. The Medical Assessor found, on examination, that the claimant was incontinent of urine and wearing a pad. The Medical Assessor performed no internal examination.
As earlier stated, the Medical Assessor read the reports of the treating gynaecologist, also examined the latter ultrasound of 16 January 2012, the Westmead Hospital records of 2011, the general practitioner records between 2009 and 2012 and a note of the gynaecologist on 19 June 2012.
[4]
%WPI = percentage whole person impairment
Apportionment
Not applicable.
Pre-existing/subsequent impairment
Not applicable.
Effects of Treatment
Not applicable.
A Current % permanent impairment 15%
B Pre-existing/subsequent % permanent impairment 0%
C Adjustments % for effects of treatment 0%
Final % permanent impairment 15%"
[5]
The Third Impugned Decision
On 2 March 2015, the Claims Assessor issued what is referred to as a procedural decision during the course of an assessment. The procedural decision is the decision to refuse to refer the medical dispute for a further medical assessment pursuant to the terms of s 62(1)(b) of the Act.
The claims assessment arises because the combined Whole Person Impairment ("WPI") for the claimant was greater than 10%. During the course of the assessment or the proceedings for the finalisation of an assessment, NRMA applied for a referral to the Medical Assessor for a further medical assessment. This application gave rise to the decision of the Claims Assessor of 2 March 2015.
The Claims Assessor sets out the history of the motor vehicle accident and the circumstances of the accident. That history and those circumstances are irrelevant for present purposes.
The Claims Assessor then recites the history of assessment, being the history of medical assessment and the state of the WPI assessment, in the following terms:
"3. The Claimant was assessed by 3 MAS Assessors, Assessor Payten, Assessor Truskett and Assesor Rochford. The assessments took place between the period September 2013 and 2014.
4. The Claimant was assessed in respect of the following injuries:-
(a) Vestibular Impairment
(b) Neck - soft tissue injury
(c) Lumbosacral spine - soft tissue injury
(d) Right shoulder - soft tissue injury
(e) Left knee - soft tissue injury
(f) Urinary tract including bladder - incontinence
[6]
A Further Combined Certificate was issued on 11 April 2014 and the Claimant was assessed as follows:-
(a) Certificate of Assessor Payten in respect of vestibular impairment 0%
(b) Certificate of Assessor Truskett in respect of neck - soft tissue Injury; lumbosacral spine - soft tissue injury; right shoulder - soft tissue injury; left knee - soft tissue injury 4%
(c) Certificate of Assessor Rochford in respect of urinary tract including bladder - incontinence 15%
[7]
Using the Combined Values Chart the further combined permanent impairment was 18% WPI."
The Claims Assessor then refers to the history of the claim itself and the conference of 2 October 2014 from which a Report of First Preliminary Conference dated 7 October 2014 issued. On that occasion, apparently and according to the Claims Assessor, NRMA did not have in their possession any medical reports upon which they could rely for a further assessment as a consequence of which the Claims Assessor fixed the matter for general assessment conference on 18 November 2014.
On 18 November 2014, the First Assessment Conference commenced and NRMA informed the Claims Assessor that application had been made for a Further Medical Assessment pursuant to the provisions of s 62(1)(a) of the Act. Apparently, an earlier application under s 62(1)(b) of the Act had been made to the Claims Assessor and by agreement that s 62(1)(b) application was stood over pending the outcome of the s 62(1)(a) application.
By decision dated 12 December 2014, the application under s 62(1)(a) of the Act was determined adversely to NRMA. On 13 January 2015, there was an indication from NRMA that a further application under s 62(1)(b) of the Act would be filed. Nevertheless, in the absence of an application for further medical assessment, the Claims Assessor set the matter down for general assessment conference on 27 February 2015.
The Claims Assessor made it clear that, in the absence of a further application under s 62(1)(b) of the Act, the matter would proceed on 27 February 2015. Further, the Claims Assessor made it clear that if such an application were to be made, then the Claims Assessor would deal with the application on 27 February 2015 and with the remainder of the proceeding thereafter, even if that meant the matter would be part-heard, awaiting a further medical assessment, having regard to the delay in the matter to which he had referred in his Report of Fifth Preliminary Conference dated 10 February 2015.
The Claims Assessor, in his Reasons of 2 March 2015, sets out some brief principles. Notwithstanding the heading under which those principles were set out, it is clear that the contents of [15] - [18] were the views of the Claims Assessor, not the submissions of NRMA.
The Claims Assessor expresses the view (probably taken from the submissions of NRMA before him) that a further medical assessment may be undertaken at any time: s 62(1) of the Act; a party to a medical dispute may refer a matter only if the injuries deteriorate or there is additional relevant information about the injury: s 62(1)(a) of the Act; and arising from that material it needs to be likely for there to be a material effect on the outcome of the previous assessment: s 62(1)(a) of the Act.
[8]
Parties' Submissions and Consideration
Before the Court, the plaintiff, NRMA, submits that the decision of the Medical Assessor was legally invalid and the decision of the Claims Assessor, likewise, was legally invalid. The plaintiff submits that the jurisdiction conferred (or altered) by s 69 of the Supreme Court Act 1970 for the issuing of orders in the nature of certiorari is constitutionally recognised and protected by s 73 of the Commonwealth Constitution. This submission is based upon the judgment of the High Court in Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
The relevance of that proposition is not immediately apparent. There is no privative provision or attempt to oust the jurisdiction conferred by the provisions of the Supreme Court Act and its constitutional recognition and protection is superfluous.
Further, the constitutional recognition is of the Supreme Court of New South Wales (and other states) and their inherent power to issue certiorari for jurisdictional error. There is no constitutional recognition or protection for the power to issue orders in the nature of certiorari in relation to error of law on the face of the record, which is not a jurisdictional error: see Kirk v Industrial Commission of New South Wales, supra, at [100]; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia [2012] HCA 25 at [30], [60] and [66].
NRMA also submits, relying on Rodger v De Gelder and Anor [2011] NSWCA 97; (2011) 80 NSWLR 594 at 614, [91] - [92] that it may be appropriate for an applicant to exhaust the existing remedies before the authority or in the scheme of the Act before troubling the Supreme Court in its supervisory jurisdiction. The submission was made because of the delay in bringing before the Court the alleged invalidity in the decision of the Medical Assessor.
The remedies to which Beazley JA (as her Honour the President then was) referred in Rodger v De Gelder, supra, related to remedies for an inappropriate medical assessment. The remedy, pursuant to the Act and its scheme, for an inappropriate or wrong medical assessment is to apply for a review to a medical panel which then must assess the claimant's whole person impairment afresh.
An application under s 62(1)(a) or s 62(1)(b) of the Act is not a remedy in relation to a particular medical assessment. It is an application for a fresh and different medical assessment based upon (in the case of s 62(1)(a) of the Act) a deterioration in the injury or additional relevant information about the injury, if the deterioration or additional relevant information is such as to be capable of having a material effect on the outcome of the previous assessment.
[9]
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: 26 April 2016
Parties
Applicant/Plaintiff:
Insurance Australia Limited t/as NRMA Insurance
Respondent/Defendant:
Melkonyants
Cases Cited (42)
emezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287
United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255
Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492
Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment (American Medical Association, 4th ed, 1995).
Category: Principal judgment
Parties: Insurance Australia Limited t/as NRMA Insurance (Plaintiff)
Seta Melkonyants (First Defendant)
Motor Accidents Authority of New South Wales (Second Defendant)
Michael Joseph Rochford, in his capacity as a Medical Assessor of the Motor Accidents Authority of New South Wales (Third Defendant)
David Ford, in his capacity as a claims assessor of the Motor Accidents Authority of New South Wales (Fourth Defendant)
Representation: Counsel:
M A Robinson SC/J Gumbert (Plaintiff)
P Cummings SC/G Hickey (First Defendant)
Submitting Appearance (Second Defendant/Third Defendant/Fourth Defendant)
The terms of "Grounds" A(i) and B(i) and A(ii) and B(ii) are not grounds for review. Each is a conclusion that may be reached if the grounds of review are successful.
The Medical Assessor came to the conclusion as to causation and issued the first certificate, noting that the complainant had complained of urinary tract incontinence "since the time of her motor vehicle accident in June 2011". The Medical Assessor also reported the following:
"This is an incontinence that occurs on stress such as laughing, coughing, and sneezing. She was found to have a vaginal prolapse when seen by a gynaecologist in January 2012. She is unaware if this was a problem that she had in the past. The presence of a vaginal prolapse may have been a factor in the causation of her urinary incontinence following the previous motor vehicle accident in June 2011. She states that she cannot remember her previous medical details.
She had been seen by gynaecologist Dr Carol Ashton for evaluation of her problem of urinary incontinence. A bladder ultrasound was performed in January 2012 with no major abnormal findings.
Further investigation to find the cause of her urinary incontinence has been curtailed due to the terminal illness and subsequent death of her husband in December 2012."
The foregoing conclusions and certificate is not the subject of challenge. On 4 April 2014, the first impugned decision issued. Again the Medical Assessor performed a clinical examination. The Medical Assessor certified that the:
"injuries caused by the motor accident give rise to a permanent impairment which is 15%:
* Urinary tract including bladder - incontinence".
The Medical Assessor referred to the dispute between the insurer and the claimant as to the medical assessment and that the issue before him was the urinary tract including bladder incontinence injury. The claimant was unaccompanied when she attended on the Medical Assessor.
The reasons for decision then recite the history as given by the claimant, the history of the motor accident and the history of symptoms and treatment following the motor accident.
The history recites that the claimant was born overseas in 1954 and attended school overseas. In Australia she did an elementary course in bookkeeping and accounting. The claimant had an episode of poliomyelitis at the age of 18 months that permanently affected her right leg. She had given birth to two children, who at the time of assessment were aged 15 and 13; each delivered by caesarean section.
The claimant also repeated to the Medical Assessor the fact that she had been involved in an earlier motor vehicle accident in June 2011 for which she was taken to hospital and discharged the same day. At the time of that accident she suffered the onset of urinary symptoms with increased frequency of micturition, urgency and urinary incontinence. The problem of urinary incontinence resolved spontaneously over three months. No investigation or treatment was offered for this problem.
The motor vehicle accident that was the subject of assessment occurred on 21 November 2011, a few months after the resolution of the difficulties associated with the earlier accident. Again, she was taken to Westmead Hospital and discharged the same day.
On this occasion, the claimant attended her general practitioner some 48 hours after the accident, complaining of pain in the neck, shoulder, mid and lower back and bruising over the chest and lower abdomen. He treated with analgesics and referred her for physiotherapy. At the time she was being medicated on anti-depressant medication and continues to be so medicated.
Following the 21 November 2011 motor vehicle accident, she had the onset again of urinary incontinence associated with an increased frequency of micturition and incontinence on laughing, coughing and sneezing. The Medical Assessor repeats the reference to her treating gynaecologist and the diagnosis of vaginal prolapse and urinary stress incontinence.
By the date of the assessment that gave rise to the first impugned decision, the claimant had returned to see her treating gynaecologist (in September/October 2013) with the continuing problem of ongoing stress incontinence. That problem is being treated with pelvic floor exercises and the charting of urinary output. She is also treated with Oxytrol patches.
The claimant was said to be passing "urine hourly during the day and … up to five times at night." The pelvic floor exercises have had minimal benefit. As earlier stated, the Claims Assessor again conducted a clinical examination and again found no masses or tender areas in the abdomen, that the claimant was wearing a pirineal pad which was wet and that vulva skin was excoriated and wet. Stress incontinence could not be demonstrated. The excoriation prevented further vaginal examination.
The Medical Assessor concluded in terms which I extract as follows:
"Diagnosis and causation
[The claimant] has complained of urinary incontinence from the time of her motor vehicle accident on 21 November 2011. This incontinence occurs whenever she has the urge to pass urine and also occurs when she laughs, coughs or sneezes.
She states that now the incontinence is an ongoing problem requiring her to wear incontinence pads.
She states that she was seen by her gynaecologist in early 2012 and was diagnosed as having a vaginal prolapse. She was not aware that she had a prolapse problem. She had a problem of urinary incontinence following a previous motor vehicle accident in June 2011. She states that this resolved spontaneously, the presence of a vaginal prolapse could have been a complicating factor causing the incontinence. Having been reviewed by gynaecologist … a bladder ultrasound was performed in January 2012 with no evidence of abnormal findings. She was reviewed by Dr Ashton [the gynaecologist] in October 2013 and referred to the Parramatta Continence Clinic for pelvic floor exercises. This treatment at the present time is continuing but, according to [the claimant], is not proving effective in controlling her incontinence.
The delay in progressing with the investigation and treatment of her urinary incontinence is due in part to the death of her husband and her own problems of depression. If she was properly investigated by urodynamic studies and appropriate treatment instituted her urinary incontinence could be cured or at least be less symptomatic. At this stage, she states no other investigations or operative treatment have been considered."
The Medical Assessor then makes the following comment:
"Summary of Injuries Listed by the Parties and Caused by the Accident
The following injuries WERE caused by the motor accident:
* Urinary tract including bladder - incontinence."
The Medical Assessor then sets out under the heading "Permanency of Impairment" the definition of permanent impairment in the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th Edition), which I do not recite. It is sufficient for present purposes to remark that it is the definition utilised by the Guidelines issued by the Authority and requires the impairment to become static or well-stabilised without a likelihood of remission despite medical treatment.
Under the heading "Determinations", the Medical Assessor includes a table with a preamble in the following terms:
"Statement about Permanent Impairment
The 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 Authority's Permanent Impairment Guidelines (1 October 2007).
Degree of Permanent Impairment
Body Part or System AMA Guides/ MAA Guidelines References (chapter/ page/table) Permanent (YES/NO) Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident
Urinary and reproductive system AMA 4 - Chapter 11, Section 11.3, Class 2, Page 254 Yes 15% 0% 15%
The Claims Assessor expresses the view that there is no limit on his power as a Claims Assessor to refer a matter back to the Medical Assessment Service and that he was able to refer the matter back at any time without restriction. The Claims Assessor refers to three judgments of the Supreme Court in that respect and in exercising the discretion.
The Claims Assessor at [18] expresses six criteria that he says should be considered, amongst others, in deciding whether to exercise his discretion and refer the matter back for a further medical assessment. Those matters include: the attitude of the parties; the facts and circumstances of the claim as a whole; the circumstances surrounding the Application for General Assessment; the medical assessment processes already undertaken by the Claimant; any potential breach of procedural fairness or issue about the validity of the existing medical assessment; and whether, acknowledging that he is not a doctor or a medical assessor, there is a possibility of a different result.
The Medical Assessor then sets out, in summary form, the submissions of NRMA and from [25] under the heading "Submissions by Solicitor for the Claimant in Reply" sets out the fact that he does not accept the above mentioned submissions of NRMA and then proceeds to deal with the submissions of the claimant in reply to the application for a reference for a further medical examination.
The Claims Assessor expresses the view that he agrees with the submissions of the claimant and remarks, particularly, that the Medical Assessor physically examined the claimant, analysed the relevant history (both pre and post-accident, based on the claimant's clinical notes and relevant imaging studies and other investigations), analysed the nature of the symptoms and their onset and arrives at a conclusion after this process: see [30] of the reasons of the Claims Assessor.
Relevantly, from the point of view of the application by the NRMA, the Medical Assessor noted the fact that the claimant had two children delivered by caesarean section and the effect of the accident in June 2011 (the earlier accident), the onset of urinary symptoms and the resolution of those symptoms. After considering all of that, the Claims Assessor comes to the view that the Medical Assessor had concluded the claimant's urinary incontinence was caused by the accident.
The Claims Assessor was cognisant of, and expressly referred to, the decision of the proper officer refusing a referral for further medical assessment. He was entitled to take account of the proper officer's decision, which was extant. It is still extant and now unchallenged.
It is for those reasons that the Claims Assessor rejects the submission of NRMA that there was no reasoned pathway to the findings on causation and that the Medical Assessor did not apply the correct test of causation.
The Medical Assessor then deals with the reliance upon the additional relevant information being the report of Dr Korbel dated 6 November 2014: see [33] and following. The Claims Assessor sought and obtained the letter of instruction to Dr Korbel, dated 29 October 2014, from which the Claims Assessor draws the conclusion that Dr Korbel was not provided with a copy of the Reasons of the Medical Assessor. Secondly, Dr Korbel did not examine the claimant but wrote his report based upon the documentation forwarded to him by the solicitor for the NRMA in their letter of instruction.
After referring to a judgment of Adams J at [37], the Claims Assessor says:
"38. I am satisfied since Dr Korbel seeks to cast doubt upon the question of causation regarding the Claimant's injuries, then he should have sought to examine the Claimant and question her regarding her pre and post accident history.
39. I am further assisted by the Submission made by the Solicitor for the Claimant that in some respects, Dr Korbel's report supports the conclusion that the Claimant's urinary incontinence was caused by the motor vehicle accident on 21 November 2011. In his [Dr Korbel's] report he states:-
'Her incontinence may well have resulted from pelvic floor weakness either due to her having had two children in that these were born by Caesarean section or (my emphasis) following her motor vehicle accident on 14 June 2011 when she did complain of incontinence to her family practitioner.'
40. Dr Korbel then goes onto state the incontinence persisted for 6 weeks and then improved.
41. Dr Korbel further states in his report:-
'She claims that her symptoms were aggravated and recurred following the accident on 21 November 2011. From the clinical notes from both her family doctor and her gynaecologist this appears to be correct.'
42. He then states on page 2 of his report:-
'Thus, her condition has been substantially aggravated by the motor vehicle accident on 21 November 2011.'
43. I then refer to the Submissions made by the Solicitor for the Claimant in paragraphs 10, 11 and 12. I accept the submissions and agree Dr Korbel has not provided an apportionment for the different causes. I do accept the submission Dr Korbel's report supports the conclusion reached by all the Claimant's treating doctors and MAS Assessor … that her motor vehicle accident has caused or at the very least, has been a significant contributing cause to her urinary incontinence. I therefore accept the submission made by the Solicitor for the Claimant that any further assessment of the Claimant would not result in a material change in the assessment ….
44. I also accept the submissions made by the Solicitor for the Claimant in paragraph 15 of their Submissions regarding the clinical notes of Dr Ekmajian which were produced on 18 November 2011 which provide the Claimant's medical history from December 1999 until 23 March 2011. I accept these notes are not illustrative of any causal link between the birth of her two children and the incontinence.
45. In summary, I find [the] Assessor … properly applied the Guidelines, properly considered causation and provided appropriate reasons for his conclusions for the reasons set out above." [Emphasis in bold added.]
The Claims Assessor then finalises the Reasons and the conclusion by formally refusing the application for a referral for further medical assessment pursuant to the terms of s 62(1)(b) of the Act: [46].
It is the provisions of s 63 that allows a party to a medical dispute to apply to the proper officer of the Authority to refer a medical assessment by a single Medical Assessor for consideration afresh.
Similarly, an application for referral under s 62(1)(b) of the Act is a second referral and gives rise to a subsequent assessment that, pursuant to the provisions of s 62(2) of the Act, prevails over any previous certificate to the extent of any inconsistency. On the other hand, an application for a referral to a review panel must be on the basis that the original assessment was incorrect in a material respect. The review panel is not limited to a review only of the aspect said to be incorrect (s 63(3A) of the Act) and, if it were incorrect, the review panel would revoke the certificate: s 63(4) of the Act.
Nevertheless, because it seems no party takes serious issue with the timing of the challenge, it is unnecessary and possibly inappropriate for me to discuss the matter further.
As to the first impugned decision, NRMA submits that the Medical Assessor failed to consider the issue of causation adequately or at all; failed to comply with the requirements of the PI Guidelines insofar as those Guidelines relate to assessment of causation and/or failed to give sufficient or lawful reasons for his determination as to causation.
The last ground may ordinarily be inconsistent with the first adumbrated ground unless the inadequacy of the consideration is the same as the insufficiency of reasons.
There can be no doubt that the Medical Assessor expressly determined that the medical condition with which he was concerned was caused by the subject motor accident. The extracts from the first impugned decision, set out above, make that clear.
First, the Medical Assessor made it clear that the degree of permanent injury was to be assessed, being the degree of permanent injury "as a result of the injury caused by the motor accident". Secondly, it is clear that the Medical Assessor was concerned with the particular injury and did not consider any different or wrong injury. The injury was the urinary tract including bladder - incontinence.
Next, as is clear from the recitation above, the Medical Assessor took a history of trauma including childbirth and the earlier accident and the history of earlier symptoms and their resolution. That history included a history of continuous symptoms from the time of the subject accident and no symptoms that had not been resolved immediately prior to the subject accident.
The Medical Assessor was a specialist Urologist appointed expressly for his medical expertise. He had all of the records of the claimant including continuous medical records and GP records back to 2009.
It is significant that NRMA do not allege that there was no evidence upon which the Medical Assessor could have found as he did.
The Medical Assessor, a Urologist, as previously stated, expressed the view that the complainant had "complained of urinary incontinence from the time of her motor vehicle accident on 21 November 2011." And noted that the only previous episode of symptoms was short lived and had spontaneously resolved before the subject accident.
The Medical Assessor makes an express finding that the injury in question was "caused by the motor accident" and determined that neither apportionment (between more than one accident) nor any pre-existing or subsequent impairment in the same region as the injury was to be assessed.
From the very inception of the Act, this Court has been at pains to stress that minute and detailed textual criticism in the hope of finding something on which to base an argument should be avoided: see Sully J in Allianz Australia Insurance Limited v Motor Accidents Authority of New South Wales and ors [2006] NSWSC 1096 at [36], where his Honour referred by analogy to the approach to summing up in a criminal trial taken by the Court of Criminal Appeal.
One does not need to argue by analogy. The High Court, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 - 272, made it clear, as had the Federal Court previously, that administrative decision makers' reasons were not to be construed "minutely and finely with an eye keenly attuned to the perception of error": see also Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280.
Further, we are here dealing with a medical specialist expressing professional judgment. In those circumstances, the reasons need not be extensive or provide a detailed explanation of the criteria applied: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 - 274 (Mahoney JA) and 281 - 282 (McHugh JA); Campbelltown City Council v Vegan and ors [2006] NSWCA 284; (2006) 67 NSWLR 372 at 397 (per Basten JA).
In this instance, notwithstanding a resolved prior incident of urinary incontinence, there was an immediate effect of the accident, namely, the immediate onset of symptoms of urinary incontinence. Those symptoms continued unremitted until the date of the assessment, which included clinical examination, by a doctor who is an expert in urinary incontinence.
There needs to be no further explanation, in those circumstances, for the proposition that the accident caused the urinary incontinence. Any pre-existing injury had resolved and no post-injury trauma or reason was given for the difficulty. The clinical examination revealed the bona fides of the complaint. The reasons of the Medical Assessor are sufficient, in the context of that which was being determined.
As earlier stated, there are express statements that the injury was caused by the motor accident. In those circumstances, it cannot be said that the issue of causation was not considered. Further, it cannot be said that the Medical Assessor failed to comply with the requirements of the PI Guidelines to which he was required to comply in relation to the assessment of causation.
The only alternative finding would have been that the accident aggravated a pre-existing injury which had otherwise resolved. Given that it had otherwise resolved, it could make little or no contribution to the whole person impairment that was required to be assessed by the Medical Assessor.
The claimant submits, in this Court, that the attribution of causation does not need to be inferred. The claimant submits that, if there be anything missing from the reasons it is a connecting sentence such as "I consider that having regard to the immediate onset of symptoms at the time of the trauma those ongoing symptoms were caused or contributed to in a material way by the motor vehicle accident." I agree with that submission, subject to one qualification. The connecting sentence would be required to include a phrase "and not substantially by any other motor vehicle accident or pre-existing cause". Nevertheless, the submission is correct and the submission of NRMA is asking the Court to require Medical Assessors to be formulaic, rather than rely upon their obvious expertise.
There is no omission of any substance in the reasons of the Medical Assessor in the first impugned decision and the challenge to that decision fails.
It is necessary then to deal with the third impugned decision, namely, the decision of the Claims Assessor not to refer to a Medical Assessor the issue of the injury in question for the purposes of a further medical assessment pursuant to the terms of s 62(1)(b) of the Act.
There is no complaint made of the criteria outlined by the Claims Assessor to which earlier reference has been made. The complaint is that the Claims Assessor did not refer the injury for a further medical assessment in circumstances where the original medical assessment had failed to comply with the Guidelines in determining causation and had failed to give adequate reasons. I have separately dealt with that aspect.
The second complaint about the third impugned decision is that the Claims Assessor took into account Dr Korbel's non-examination of the first defendant. Of course, Dr Korbel not only did not examine the first defendant, he did not have the assessment of the Medical Assessor before him.
Nevertheless, NRMA submits that the failure to examine the claimant was an irrelevant consideration and that, therefore, the Claims Assessor was involved in jurisdictional error and, because that issue was not raised with NRMA during the course of application for further assessment, denied NRMA procedural fairness.
The first aspect that requires attention is the reference in each of the submissions to the Claims Assessor's discretion under s 62(1)(b) of the Act. A power to refer, even if granted in discretionary terms, does not import a discretion to give effect to that which is in the opinion of the decision maker desirable. A discretion that is prescribed, in circumstances where the context provides no positive indication of the considerations by reference to which a decision is to be made, must still be exercised having regard to the scope and purposes of the legislation: Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 504 - 505 (per Dixon J); R v Australian Broadcasting Tribunal; Ex parte 2 HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49, 50; Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at 12 - 14 and 24; Re Coldham Ex Parte Brideson [1989] HCA 2; (1989) 166 CLR 338 at [16]. It must not take into account extraneous matters.
The purpose and objects of the Act and the effect of the scheme have been explained on a number of occasions. The Act implemented a non-curial assessment of medical disputes between those injured in motor vehicle accidents and the insured and insurer and, in most instances, non-curial assessments of damages.
The strict time limits associated with the admission of liability or expression of attitude to liability, coupled with the manner in which disputes are resolved, (including that medical experts are appointed to determine the extent of whole person injury and whether the whole person injury has been caused by the motor vehicle accident in question) point to a clear legislative purpose that proceedings for the resolution of claims for compensation under the Act will be, in large measure, resolved by agreement. When not resolved by agreement (and obviously when so resolved), the resolution of the medical issues is required to be done extremely expeditiously and without the formality of curial proceedings. Instead, medical experts utilise their own expertise to determine the extent of injury and causation.
Lastly, the Act implements a non-curial, partly non-adversarial system to aid the expedition of the resolution of these medical issues. Once liability is determined, there is an immediate benefit to the claimant associated with the payment of medical expenses and future treatments and recourse to a Claims Assessment process that is intended to be far more expeditious than proceedings in the traditional courts.
Thus, the object of the Act, or one of the objects, is the expeditious resolution of disputes. It is in that context that the decision of the Claims Assessor needs to be viewed.
The terms of the third impugned decision have, in relevant respects, been summarised or recited earlier in these reasons. Essentially, the alleged invalidity depends upon the irrelevancy of the consideration that the claimant had not been examined by Dr Korbel; and the failure of the Claims Assessor to afford procedural fairness by failing to give the parties the opportunity to be heard on the issue of Dr Korbel's non-examination of the claimant.
NRMA relies upon the trite proposition that the failure to take into account relevant considerations and having regard to irrelevant considerations are jurisdictional errors and in particular relies upon passages from Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 - 40 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82] - [84]. The submission, however, in its broad terms is misleading.
A relevant consideration in the sense used in Peko-Wallsend, supra, or Yusuf, supra, is a consideration that is required to be taken into account and an irrelevant consideration is a consideration that the decision maker is not entitled to take into account. The terms "relevant" and "irrelevant" are not used in the sense of that which is probative.
Since the statute does not prescribe the criteria upon which the power reposed in a Claims Assessor pursuant to s 62(1)(b) of the Act may be exercised, the power should be exercised in order to achieve the purpose of the Act and not take into account criteria that are extraneous to the Act and its scope and purpose. The non-examination by Dr Korbel is not a factor proscribed and is not, in the sense used in Peko-Wallsend, an irrelevant consideration.
Nevertheless, if the factor were truly irrelevant and if it were a factor upon which the ultimate decision was made, then the decision would have been made in the absence of probative evidence or irrationality.
The rules of natural justice or procedural fairness have two aspects. One is the hearing rule and the other relates to the decision-making process.
The hearing rule requires that a party understand the nature of the case against the party and be afforded a reasonable opportunity to prepare and to present its own case (or test the case of the other party). A concomitant and a necessary corollary to that aspect is that the party will be afforded a proper hearing, namely, a hearing by a decision maker who is not biased and in which the result is not capricious, arbitrary or unreasonable: see Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [87]; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; Peko-Wallsend, supra.
However, the question still arises as to whether the non-examination by Dr Korbel is truly "irrelevant" in the probative sense. The Claims Assessor is not bound by the rules of evidence. Nevertheless, it is convenient to use the definition of "relevant" in the Evidence Act 1995. In order to be relevant, material must be of a class that could (directly or indirectly) rationally affect the probability of the existence of a fact in issue: ss 55 and 56 of the Evidence Act. In the sense used in the Evidence Act, a fact in issue is not confined to those directly in issue or material that directly affects the fact in issue.
It is plainly relevant to the exercise of the power reposed in the Claims Assessor by the terms of s 62(1)(b) of the Act whether Dr Korbel's report is sufficiently material to have affected the original medical assessment or to call in question the veracity or persuasiveness of the original medical assessment.
As a consequence, the Claims Assessor, bearing in mind the objects of the Act for expedition, and understanding that a further medical assessment will necessarily involve some delay, could appropriately take into account the persuasiveness of the report in determining whether it was justified to take steps which would cause that delay and whether the report questions the Medical Assessor's determination validly or may have an effect on the determination. A comparison of the Medical Assessment and the further report was not inappropriate.
The Claims Assessor took into account a number of factors relevant to that issue. First, he took into account that the Medical Assessor had the full history of the claimant, whereas Dr Korbel had none of it (or a very limited amount of it, being the amount contained in the letter of NRMA or its solicitors); secondly, the Claims Assessor took into account the fact that the Medical Assessor and Dr Korbel were both experts, being Urologists and exercising their expertise; thirdly, the Claims Assessor took into account that the Medical Assessor had examined the claimant and taken into account her entire history, whereas Dr Korbel did not examine the claimant and had not received or considered all of the claimant's history. In those circumstances, the failure of Dr Korbel to examine the claimant (for whatever reason) was a factor that was probative of the persuasiveness of the report of Dr Korbel.
Moreover, given the ambivalence and equivocation contained in the report of Dr Korbel, those factors loom even larger than otherwise would be the case. As earlier recited, Dr Korbel's report, while expressing a likelihood (in circumstances where there had been no examination and no study of the claimant's history) only raised the possibility of other causes, without reaching any conclusion or any firm view.
The possibility that seemed "more likely" to Dr Korbel was the possibility that the injury or symptoms were caused by the two childbirth occurrences; each by caesarean section. That was a factor known to the Medical Assessor. Further, there was no history of these symptoms associated with the childbirth or occurring after the childbirth (other than at a point in time immediately after each motor accident).
In the foregoing circumstances, the non-examination of the claimant was not irrelevant in the "jurisdictional error" sense. Nor was it irrelevant in the probative sense as it indirectly affected a fact in issue, being the persuasiveness and weight to be given to the report of Dr Korbel, which was manifestly a matter that was relevant to the application for a referral for further medical assessment.
The Claims Assessor was entitled to take a view that the reopening of the medical assessment, being a controversy that had already been resolved by the Medical Assessor or by the proper officer, should not occur except in a few, narrowly defined, circumstances: see Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 223 [15] and, in particular, Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 (per Handley AJA, Young JA agreeing, at [109] - [116] in which the passage from Burrell, supra, was expressly applied to the process of medical assessment before the Motor Accidents Authority).
The "denial of natural justice" or failure to afford procedural fairness on which NRMA relies is the failure to give the parties an opportunity to be heard on the issue of Dr Korbel's non-examination of the claimant. NRMA submit that were such an opportunity to have been given, the Claims Assessor would have been informed that the claimant refused to attend any medical examinations.
Whatever be the reasons for the non-examination, the fact of the non-examination must have been a factor, of which NRMA were aware, that would be a matter of comparison between the task performed by the Claims Assessor and the report of Dr Korbel. The "persuasiveness" of Dr Korbel's report was a matter on which NRMA, as the moving party for the referral, relied and issues that go to its persuasiveness, such as whether it was based on a clinical examination and whether it took into account the entire medical history of the claimant, are matters that the Claims Assessor was entitled to take into account.
Further, once NRMA relied upon the "persuasiveness" of Dr Korbel's report and the findings therein to ground a further medical assessment, the issue of the probative value or persuasiveness of that report was opened up by them. Procedural fairness requires only that the party should reasonably have apprehended that the point had been opened up or was or might become a live issue: Re Building Workers' Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4; (1988) 76 ALR 353; (1988) 62 ALJR 81; Re Coldham; Ex Parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association; Ex Parte Municipal Officers' Association) [1989] HCA 13; (1989) 63 ALJR 298 at [19] per Gaudron J (Dawson J agreeing); United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255.
The issue was opened up once NRMA relied upon the report and sought to persuade the Claims Assessor, on the basis of that report, that the original medical assessment (the first impugned decision) was sufficiently in doubt to warrant the reopening of the controversy as to the medical issues.
As a consequence of the foregoing, I do not consider that there has been a failure to accord procedural fairness to NRMA. Further, I do not consider that the finding, if it be a finding, that Dr Korbel denied to the claimant procedural fairness was an essential or even significant aspect leading to the ultimate determination by the Claims Assessor.
I have left to last the ground of "unreasonableness" upon which NRMA relies to invalidate both the first and the third impugned decisions. As earlier stated, the hearing rule of procedural fairness requires that a decision maker not decide issues capriciously, arbitrarily or unreasonably.
There is some controversy about the precise terminology to be used. For example, irrationality and illogicality are used sometimes in a way that has been deprecated and also in a way that excites the comment that of themselves such failures will not lead to jurisdictional error or error of law.
Ultimately, it is neither jurisdictional error nor error of law for a decision maker to come to the wrong conclusion. Every exercise of discretion will involve some areas that are free from interference by judicial review.
Nevertheless, whether one utilises the expression of Mason J (as he then was) in Peko-Wallsend, supra, or the members of the High Court in Li, supra, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088 or Bond, supra, the hearing rule requires that the decision made be a reasonable exercise of the power conferred. I ignore, for present purposes, whether any unreasonableness needs to be manifest.
It is sufficient, for present purposes, to comment that the ultimate determination of each of the Medical Assessor and the Claims Assessor does not either manifestly or otherwise fit within the description of a decision to which no reasonable decision-maker, in that context, could arrive. Nor is it unreasonable as one that was not rationally or reasonably available on the material before the decision maker. In my view the "unreasonableness" of each of these decisions is unarguable and certainly untenable. For the foregoing reasons, the challenge to each of the first and third impugned decisions fails.
The Court makes the following orders:
1. Summons dismissed;
2. The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed;
3. If either the plaintiff or the first defendant seek a different or special order as to costs, an application may be made to my Associate within seven days of the publication of these reasons which application should attach any documents (other than documents already in evidence) on which the party relies and, with the exception of those attached documents, the application and submission in support should be no more than three pages in length. Any party affected by any such application may reply, the length of the document having the same restrictions as that which applies to the application, within a further seven days from receipt of any aforesaid application.