Decision
41In applying these principles in the present case, it is well to bear in mind that one must avoid what Basten JA has called "a mind-set determined to find error" (see Miller at [55]), and, I think, an appreciation (perhaps related to that consideration), that the s 62(1A) decision is required to be made by a "member of staff" of the Authority, who is not required to be legally trained, and who is performing an essentially administrative function, albeit one indirectly affecting the rights of the claimant, and the potential liability of the insurer.
42Of the various pieces of information identified above at [20] and [21] that the insurer put forward as "additional relevant information" only some were not provided to the medical assessor in some form. They are (b), (c), (d) and, possibly, (e). As I have said at [29]-[30] above, by her reasons the proper officer showed she was well aware of what information the insurer said was additional. I would reject the submission of the insurer that all that goes before what I have set out at [34] above is merely preamble.
43Dr Ling had (a), which is the Discharge Summary and she was aware of its contents even if she did not set out the words fully in her reasons. In large measure, this takes (d), Dr Duggins' handwritten note of the history he took from the claimant, out of the reckoning. The Discharge Summary was clearly based upon it. It records the "previous" whiplash and "no residual issues".
44Dealing with (b), the absence of a record of complaint of neck pain in the triage document, it is clear that Dr Ling did assume some continuity of neck symptoms from the history she received from the claimant (see [13] above). To that extent this document may be additional information in the statutory sense, but whether it was, is a matter for the satisfaction of the proper officer.
45The record of the resident medical officer ((c)) is new, in the sense of not being available to Dr Ling, because it could be thought to put the whiplash injury in the past, as opposed to being a current and ongoing problem, and it contains a frank denial of "any current neck pain". As the insurer says this information was not set out expressly in the reasons of the proper officer.
46Dr Sivagnanam's report of 19th March 2009, a follow up examination, is also new, but is consistent in a general way with the facts assumed by Dr Ling because it does includes a history of neck pain in the weeks leading up to the claimant's presentation at Westmead Hospital on 4th March 2009.
47Notwithstanding that Dr Spira himself missed the significance of the insurer's interest in Dr Yildrim's reports, its content was not new. As I have said it was common ground that the claimant's neck was well enough for her to return to her normal duties a short time after the motor vehicle accident. I would not regard that material as a matter of law as being "capable of having a material affect on the outcome of the previous assessment", acknowledging always that my role is restricted to the issue of "whether the jurisdictional threshold has been crossed" (SZMBS [38]) or a constructive failure to exercise jurisdiction has occurred.
48This brings me to the reports of Dr Spira. The critical question is, of course, "whether [her] determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds".
49Dr Spira's view "that psychological factors are playing a major role" (see [17] above) may be put to one side immediately. First, and most importantly, this consideration was never relied upon by the insurer as additional information when making its application for further referral. Secondly, although that consideration seems to have informed Dr Spira's assessment of the actual degree of permanent impairment, he still concluded it was greater than 10 per cent and, ultimately, this is the only relevant statutory question: s 131 of the Act; Brown v Lewis [2006] NSWCA 87; 65 NSWLR 587 at [20] - [24] per Mason P. To that extent, as a matter of law, Dr Spira's opinion as to the degree of impairment was not capable of having material effect on the outcome of the previous assessment.
50I accept the insurer's argument that in the dispositive passage of her reasons, as set out in [34] above, the proper officer focused upon the "opinion with regard to causation contained in Dr Spira's report of 12th September 2013". There is nothing about this which is irrational, illogical or legally unreasonable. One may accept that a patient's history given by is likely to be always relevant to the determination of a medical question. However, properly understood, its relevance relates to its significance for the validity of the medical opinions expressed in the case. By validity in this context I mean weight due to, or persuasive value of the opinions. From Dr Spira's standpoint, the newly available primary clinical records "merely reinforces the views" he had previously expressed (see [21] above). That is to say that he, like Dr Burns and Dr Cummine, if there was to be a connection between the motor accident and the pathology operated on by Professor Dan, would have expected to see a closer temporal connection between the accident and the onset of the radiculopathy. Like Dr Burns and Dr Cummine, he did not identify how close the connection needed to be, but was simply of the view that four years was too long.
51The important point is the clinical records did not operate in a vacuum. Their significance depended upon what a medical expert made of them. By her reasons the proper officer showed she understood this and on the view she formed of the facts she was not satisfied that the new material, viewed through the only expert report which commented upon it, was additional information within the meaning of s 62(1A).
52It was obviously correct as the proper officer said that Dr Ling had fully considered the "break in the chain of causation" argument in the previous assessment and rejected it. Although Dr Ling assumed ongoing, probably low-grade symptomatology requiring little by way of medical treatment, the approach she took to medical causation did not depend upon a close temporal connection between the accident and the development of radiculopathy (see [14] above). Like Dr Burns, she treated the relevant pathology, not as a "frank injury" but rather as a manifestation of cervical spinal disc disease. For the reasons she gave, Dr Ling concluded that the car accident had accelerated that process. It was well open to the proper officer to decide that a reiteration of a close-temporal-connection theory was not "such as to be capable of having a material effect on the outcome of the previous assessment". Her decision was not illogical or legally unreasonable.
53From this it follows that I reject the arguments for the insurer. The proper officer did consider the significance of the additional contemporaneous clinical material, and decided its significance depended upon the opinion of Dr Spira. She had no obligation to inform the insurer that she would not consider the primary clinical records because she considered them. In any event, were it otherwise I would have concluded this aspect was governed by SZBEL as argued by the claimant (see [37] above). I accept that it was mandatory for the proper officer to consider and evaluate the material put forward as additional relevant information. I am satisfied that she did so. On the view she formed of the material its significance depended upon Dr Spira's opinion and she was correct to decide that she was bound to apply the approach of Rothman J in Garcia, the correctness of which was not called into question by either party before me.
54For the reasons I have given, I am of the view that the proper officer did "afford proper, genuine [and] realistic consideration" of the material put forward by the insurer.
55For these reasons the proceedings must be dismissed. Before pronouncing orders I wish to observe that the availability of contemporaneous clinical material obviously remains important for fact finding purposes in the assessment of the damages to which the claimant may be entitled. For the reasons given by Mason P in Brown v Lewis, a conclusive certificate under s 61(2) of the Act does not foreclose that inquiry, Murdoch v Davis [2005] NSWCA 466; 44 MVR 415 notwithstanding; cf Morris Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 considered by Rothman J in De Gelder v Rodger [2014] NSWSC 872 at [122] - [124].
56My orders are as follows:
(1)Proceedings dismissed;
(2)The plaintiff to pay the first defendant's costs on the ordinary basis forthwith after they have been agreed or assessed.