Insurance Australia Limited trading as NRMA Insurance v Brown

Supreme Court of NSW|2019-08-14|Before: Button J

Solicitors: Moray & Agnew Lawyers Brydens Lawyers Pty Limited File Number(s): 2019/98773

Introduction

This is an application by Insurance Australia Limited trading as NRMA Insurance (the plaintiff, hereafter NRMA) for judicial review of the determination made by a Medical Appeal Panel (the Panel) about the degree of whole person impairment (WPI) of Mr Jeffrey Robert Brown (the first defendant, hereafter Mr Brown), pursuant to the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). The application concerns only the finding with regard to WPI of the lumbosacral spine (the lower back portion of the spine; hereafter LSS).
NRMA is the compulsory third party (CTP) insurer of the at fault vehicle in a motor vehicle accident (the accident) that occurred on 14 March 2015.
Mr Brown was injured in the accident, and is the plaintiff in the substantive proceedings.
The second defendant before me is the State Insurance Regulatory Authority (SIRA), a state body that administers the CTP insurance and compensation scheme under the MAC Act. The third defendant before me is the Panel. Each of those defendants has entered a submitting appearance.

Background

Because the application for judicial review is founded upon asserted legal error, I can be concise with regard to factual matters.
Mr Brown was born in August 1960. He has five children, and is currently living with his son and daughter-in-law and their two children.
When he was around 9 or 10 years of age, he fractured his sternum.
When Mr Brown was 12 years old, he was in a motorcycle accident which caused open fractures of the femur (thigh bone), left tibia (shin bone) and fibula (calf bone).
In 1978, he had carpal tunnel decompression in his right wrist.
In 1993, he was working at Coles when he sustained a crush injury to his left hand. This injury caused reduced movement in his middle, ring, and little finger in the left hand.
In 1994, Mr Brown had been stabbed in the forehead with a knife, but it had only penetrated his skin and was lodged in the bone of his forehead.
Mr Brown has had a history of schizophrenia arising from a drug-induced psychosis, which severely affected him from 2009 to 2013.
During the night before the accident on 14 March 2015, Mr Brown was at a party, drinking until 4am the next day. That morning, he was being driven by a friend, and was asleep in the front passenger seat. At around 7am, the accident occurred when the driver lost control of the vehicle and it careered down an embankment. Mr Brown simply remembers waking up on the ground outside the vehicle.
He was then taken to Nepean Hospital. His injuries were diagnosed as "a transverse process fracture of C7 [bottom of neck], T2 endplate fracture [part of the spine in the chest area], a sternal [bone in the middle of the chest] fractural, right rib fracture and a possible displaced left clavicular [collar bone] fracture." (definitions inserted by me for the convenience of the reader)
On 20 March 2015, he was discharged from hospital. He wore a cervico-thoracolumbar orthosis (a device worn to stabilise the head, neck and spine) for approximately seven weeks after that date.
A dispute developed between Mr Brown and NRMA with regard to the monetary damages for non-economic loss to which Mr Brown may be entitled. Accordingly, a medical assessment of WPI became necessary, in order to ascertain whether the WPI of Mr Brown exceeded 10%, in light of the well-known statutory cut-off point.
On 12 October 2017, Mr Brown lodged an application for an assessment of a permanent impairment dispute. In that application, Mr Brown provided a list of the injuries said to have been caused by the accident and considered by Mr Brown to give rise currently "to an assessable degree of WPI". The LSS injury was included in that list as follows, by way of headings and entries contained in a table: "Bodily location of injury … Lumbosacral Spine"; "Injury type … Soft Tissue Injury"; "What aspects of this injury are in dispute? ... Degree of Impairment" (emphasis in original).
On 23 November 2017, NRMA lodged a reply to that application. In that document, NRMA ticked a box indicating that the list of injuries given by Mr Brown discussed immediately above was not correct. NRMA also provided, in an identically formatted table, a list of injuries asserted to be "caused by the accident that you [that is, NRMA] consider currently give rise to an assessable degree of permanent impairment…" It is noteworthy that the table contained an identical third column heading: "What aspects of this injury are in dispute?", with the same notation underneath, "More than one aspect can be listed, e.g.; 'degree of impairment', 'causation', 'exacerbation', 'apportionment', 'subsequent intervening event'" (emphasis in original).
The list of injuries notified by NRMA on that identical table did not make any reference to the LSS.
On 6 March 2018, a medical assessor undertook an assessment of the physical injuries of Mr Brown.
On 18 March 2018, the medical assessor issued a certificate of assessment (the certificate). With regard to the LSS, the medical assessor found that the accident did cause soft tissue injury to the LSS, but that the LSS injury did not give rise to a permanent impairment greater than 10%. Indeed, the degree of WPI of the LSS injury was assessed at 0%, as indicated in tabular form. The assessor noted the finding that there were no signs or symptoms at the time that justified a finding of 5% WPI with regard to the LSS, and that "[s]pecifically no muscle spasm, no muscle guarding, no dysmetria were present, while non-verifiable radicular [nerve] complaints were not present." (I have not provided a working definition of dysmetria because it was disputed at the hearing before me whether I should have recourse to any external source such as a medical dictionary with regard to the meaning of that condition.)
With regard to the assessment of WPI arising from other injuries, the medical assessor concluded that the injuries cause by the accident gave rise to a WPI of 10%. That meant that Mr Brown was not entitled to damages for non-economic loss, pursuant to s 131 of the MAC Act.
On 18 April 2018, Mr Brown lodged an "Application for a Review of a Medical Assessment by the Medical Assessment Service" with regard to the adverse certificate of the assessor. Written submissions were attached to it, addressed to the statutory Proper Officer, who, pursuant to the MAC Act, was playing the role of "gatekeeper" as to whether there should be a review by the Panel.
The written submissions of Mr Brown asserted that the LSS injury was amongst those that the assessor had found "WERE caused by the motor accident…" (emphasis in original). It was also submitted in tabular form that, although the assessor had found that the LSS injury was permanent, it was also found that it gave rise to no current WPI percentage, no percentage of WPI "From Pre-Existing OR Subsequent Causes", and no percentage of WPI "Due to Motor Accident".
One of the "grounds of appeal" of Mr Brown was said to be: "a) Accordingly, it is submitted that MAS Assessor Cameron has wrongly assessed the Claimant's low back impairment in the DRE I Category, and should have correctly assessed the Applicant Claimant's lumbar impairment in the DRE II Category in accordance with the overwhelming preponderance of the medical evidence made available to MAS Assessor Cameron, which attracts a 5% whole person impairment assessment".
(I interpolate that, at the oral hearing, counsel for NRMA explained that DRE I Category amounts to a finding of 0 per cent WPI, and DRE II Category amounts to a finding of 5 per cent WPI.)
On 21 May 2018, NRMA lodged a reply to the application for review of Mr Brown. It also attached written submissions. With regard to paragraph 10(a) of the application for review of Mr Brown (as extracted above at [25]), it was said: "The claimant alleges that Assessor Cameron wrongly assessed the claimant's low back impairment in DRE I category and should have been correctly assessed in DRE II category without offering any basis for the alleged error made by Assessor Cameron in this regard. The insurer submits that it was open to Assessor Cameron to accurately assess the whole person impairment of the claimant's low back in the DRE I category as he found following his examination of the claimant 'no significant clinical findings'. Assessor Cameron further states that following his examination on that day there were no signs or symptoms that were currently present to justify an assessment of DRE II in the lumbar spine. In these circumstances, the insurer submits that the claimant's application in regards to an error in relation to the assessment of whole person impairment of the lumbar spine ought to be dismissed." (Emphasis in original.)
Later, the following appears: "In these circumstances, the insurer submits that the application for review ought to be dismissed as there has been no error on the part of Assessor Cameron in his assessment of the claimant's injuries and whole person impairment. Throughout the MAS certificate Assessor Cameron has provided adequate reasons in support of his findings based on his clinical examination of the claimant on that day and his review of the contemporaneous medical records that were before him at the MAS assessment."
The Proper Officer was persuaded that the matter should be referred to the Panel, and did so.
The Panel provided its certificate on 1 January 2019. In a nutshell, it found that "[t]he following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS GREATER THAN 10%: … Lumbosacral spine - soft tissue injury" (emphasis in original). Of course, in accordance with the regime of the MAC Act, the finding that Mr Brown had suffered greater than 10% WPI was advantageous to him, and disadvantageous to NRMA.
I proceed to summarise salient portions of the reasons of the Panel.
The Panel referred to the documentation that had been reviewed, received, and considered. That included the certificate with reasons of the assessor, the application form of Mr Brown seeking review, the reply thereto of NRMA, and all of the documents that had been originally provided to the assessor.
The Panel noted that the assessor had certified that the "degree of permanent impairment as a result of the injuries caused by the motor accident … was 10%." The Panel noted that included in the list of injuries was "lumbosacral spine - soft tissue injury". The Panel also noted a number of claimed injuries that had been found by the assessor not to have been caused by the accident.
The Panel summarised the "Disputes identified by the Parties" as "Permanent impairment", and summarised the submission of Mr Brown that "the assessor had arrived at an incorrect DRE category for the lumbar spine." It was also noted that Mr Brown had placed in dispute the finding of the assessor that certain shoulder injuries had not been caused by the accident. The Panel also noted that the respondent opposed the application.
Later it was said that "[t]he Panel decided that re-examination of the claimant was necessary in order to reach a decision, because of the issues raised in relation to causation and also assessment for the lumbar spine."
The Panel noted that the additional evidence that it had received included a further medical history from Mr Brown. That is recounted in detail with regard to physical injuries and conditions, and psychiatric and psychological conditions. It included reference to seizures. Mr Brown also provided the Panel with a detailed version of the accident itself.
As for his current condition, it was recorded that Mr Brown "said his lower back has been 'a little trouble lately' and is 'not real crash hot.' The back pain comes and goes" (emphases in original).
The Panel undertook a detailed physical examination of Mr Brown. With regard to the lumbar spine, it was recorded that "… the Panel observed fasciculations [muscle twitch] over the left paraspinal musculature (as well as on the left forearm). Flexion was two-thirds normal, extension one-third normal, lateral flexion and rotation half normal bilaterally."
With regard to its deliberations, the Panel "concluded Mr Brown had sustained soft tissue injuries to his head, cervical spine, thoracic spine, lumbar spine, both shoulders, and right ankle, and fractures to his chest and ribs."
In discussing the injuries to the left shoulder, the Panel spoke of "the fact that this was a significant high speed accident."
The Panel recorded that the outcome of a CT scan of the lumbar spine of Mr Brown of 3 July 2015 (that is, less than four months after the accident occurred) was "[m]ild left lateral protrusion at I4/5 causing some narrowing left lateral recess."
It was later said that "Lumbar spine was assessed at DRE Category II due to dysmetria." (Emphasis added.)
In setting out its decision, the Panel found "that the accident WAS a cause of the following claimed injuries: … Lumbosacral spine - soft tissue injury". It was later recorded that "Lumbosacral spine - soft tissue injury", was one of the injuries that gave rise to a permanent impairment.
Thereafter, the Panel set out in tabular form the findings: that the LSS injury is permanent; that it currently constitutes 5% WPI; that 0% WPI was "from pre-existing OR subsequent causes"; and that the same percentage of WPI, namely 5%, was "due to motor accident" with regard to that injury.
It was also recorded in tabular form, and in the body of the reasons of the Panel, that those determinations had been made in accordance with "MAA Impairment Guidelines, 1 June 2018" and "AMA 4"; that is, the Motor Accident Permanent Impairment Guidelines (the MAA Guidelines) and the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (hereafter AMA 4).
In explaining that the finding of the Panel was different from that of the assessor, the Panel said "[t]he Review Panel's findings in relation to the degree of permanent impairment of the injuries caused by the accident are different to the findings as stated in the Permanent Impairment certificate issued by Assessor Ian Cameron. This was because the Panel found causation and resolution of injury for both shoulders, and their clinical findings differed with respect to the lumbar spine."
It is with regard to that certificate, and the reasons in support of it, that NRMA asserts there has been either jurisdictional error, or error of law on the face of the record sufficient to attract judicial review.

Grounds

At the oral hearing, NRMA accepted that the (with respect, rather lengthy) grounds notified in its amended summons filed on 14 August 2019 could be distilled into the following four grounds. 1. The Panel had an obligation, pursuant to the MAC Act, to ascribe the causation of the LSS injury in the way the Act mandates, but failed to do so. 2. The Panel had an obligation, pursuant to the guidelines, to ascribe the causation of the LSS injury in the way the guidelines mandate, but failed to do so. 3. The Panel failed to give adequate reasons for its conclusion as to causation of the LSS injury. 4. The Panel failed to comply with cl 1.41 of the SIRA Guidelines, to the potential disadvantage of the applicant.

Submissions of the applicant regarding Grounds 1 and 2

The submissions of the applicant in support of Grounds 1 and 2 can be summarised as follows.
It was submitted that s 58 of the MAC Act establishes the responsibility of a medical assessor and a Panel to determine the question of causation, namely, "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%".
In support of the proposition that the MAA Guidelines and SIRA Guidelines apply to the assessment of medical assessors and the Panel, counsel relied on ss 65(1) and 133(1) of the MAC Act.
It was said that the guidelines also mandate that medical assessors and the Panel determine the question of causation in accordance with a specific "journey" of reasoning prescribed by the guidelines, as recently emphasised in Allianz Australian Insurance Limited v Mackenzie [2014] NSWSC 67.
In particular, counsel relied upon cll 1.5-1.7 of the MAA Guidelines to describe the "journey" needed to be undertaken by medical assessors and the Panel, as follows: "1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
It was submitted that, contrary to these Guidelines and to s 58 of the MAC Act, the Panel failed to assess causation in the way prescribed above. Instead, it was said, the Panel simply made reference to some reports and evidence before it, and immediately "went straight" to the conclusion that the LSS injury was caused by the accident without any explanation.
It was emphasised that the Panel needed to start "from the ground up" in doing what it was asked to do by the MAC Act and the guidelines. Counsel relied upon s 63(3A) of the MAC Act and cl 16.21.1 of the SIRA Guidelines, which provide that a review by the Panel is "de novo", as well as cl 1.17 of the MAA Guidelines, which mandates that a medical assessor "must evaluate the available evidence and be satisfied that any impairment: is an impairment arising from an injury caused by the accident…".
Counsel also submitted that the causation of the LSS injury was indeed in dispute at the stage of the review by the Panel. Counsel relied on NRMA's omission of the LSS from its list of injuries in its reply to the application for review of Mr Brown, submitting that, on a careful reading of the words contained in the form of the table, that omission indicates that NRMA's position was in fact that no injury to the LSS was caused by the accident.

Submissions of the applicant regarding Ground 3

In support of this ground, counsel for the applicant emphasised the importance of cll 13.2 and 16.24 of the SIRA Guidelines for the proposition that the certificate of a medical assessor or the Panel must provide written reasons for its determination, as well as the cases of Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, Campbelltown City Council v Vegan 67 NSWLR 372; [2006] NSWCA 284; Sadsad v NRMA Insurance (2014) 67 MVR 601; Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577. These were relied upon generally for the submission that the Panel had a heightened obligation to give reasons because of: the generally limited medical evidence as to the LSS injury; the issue of causation of the LSS injury being in dispute between the parties; and the role played by the Panel's assessment of the LSS injury in the final, and significant, determination of the WPI being greater than 10%.
It was emphasised that the first mention in the evidence of the LSS injury was around four months after the accident, and the next reference was 18 months after the accident, and that the majority of the evidence did not refer to the injury to the LSS at all.
It was also submitted that, even if the causation of the LSS injury was not understood by the Panel to be in dispute, it nonetheless had a duty to give reasons for the finding of causation it made with regard to the LSS injury.

Submission of the applicant regarding Ground 4

Clause 1.41 of the MAA Guidelines provides: "Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness."
Counsel for the applicant submitted that the recent decision of Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 is authority for the proposition that, where there is a presentation of a claimant before an assessor or a Panel that is inconsistent with a prior presentation, that inconsistency must be put to the claimant, so that he or she has the opportunity to respond to it. And it was submitted that this provision of an opportunity to respond is for the benefit of both parties, as a matter of procedural fairness and accuracy.
It was emphasised that, in this case, the Panel failed to present the inconsistency between its clinical findings and the assessment of the medical assessor of Mr Brown, and drew a conclusion as to the LSS injury without further explanation, despite the presence of an inconsistent medical record in the form of the certificate of the assessor.
In submissions in reply, counsel for the applicant emphasised that an inconsistency between two clinical findings was not being asserted - rather, the inconsistency being asserted was between the Panel's clinical findings, and the certificate of the assessor which should be characterised as a "medical record", therefore being captured by clause 1.41.

Determination of Grounds 1, 2 and 3

I believe that it is convenient to deal with these three grounds together, because they are so closely related, in that all of them pertain to alleged failings by the Panel in its attribution of the causation of the LSS injury to the accident.
By the conclusion of the hearing before me, it was accepted by NRMA that there had, in fact, been a bald ascription of the cause of the LSS injury to the accident in the reasons of the Panel. And, in accordance with the summary of the reasons of the Panel that I have provided above, that acceptance is quite correct: the Panel did indeed find, more than once, that the accident caused the LSS injury. The real complaint of NRMA is that the Panel was called upon to analyse the question of causation of the LSS injury in some detail, not only in accordance with the generic requirements of the Act, but also in accordance with the specific strictures of the various guidelines. The real complaint of NRMA as to how the Panel dealt with the question of causation of the LSS injury is about the adequacy of its reasons, the revelation of its chain of thinking, and its compliance with the strictures of the guidelines and the MAC Act.
However, I do not accept the fundamental proposition of NRMA that, in the circumstances of this case, the Panel was called upon to delve deeply into the question of the causation of that particular injury. I say that for the following reasons.
First, as was clarified at the hearing before me, the assessor expressed the medical opinion that there was an LSS injury, and that it had been caused by the accident. However, the assessor found that, by the time he examined Mr Brown, the injury had resolved. It was on that basis that no WPI was ascribed by the assessor to the LSS injury.
Secondly, when in that context NRMA subsequently provided its response to the application of Mr Brown seeking review of that assessment, it said and did nothing to suggest that the proposition that the accident caused the LSS injury was in dispute. In particular, the extract from its written submissions at [27] above shows that its focus was upon the degree of LSS injury (DRE I or DRE II), not the logically anterior question of whether it could be ascribed to the accident.
To expand on that a little: there was no medical opinion from either party that ascribed causation for that injury to any event or condition other than the accident. And in similar vein, to the extent that seizures suffered by Mr Brown are now relied upon by NRMA as a possible cause of the LSS injury, considering the material as a whole that was placed before the Panel, I respectfully consider that that does not rise above the level of mere speculation.
Thirdly, it is true that, as a matter of strict grammar arising from, in my respectful opinion, an ambiguity in the table in the form, the insurer's reply to Mr Brown's application for a review could possibly be construed in the way for which NRMA contends. That is because, in its introduction to the table, the form called upon NRMA to list the injuries "caused by the accident", and the thesis now put forward by NRMA is that the LSS injury was not so caused.
But that is not the natural reading of the form; the natural reading is that the injuries that appear on the document filed by NRMA are those about which there is a dispute with Mr Brown, including as to causation. In my opinion, it would be very counterintuitive for either party to a dispute such as this to be able to say that absence of a topic from a document such as that is to be taken by one's opponent, and a Panel, and a judge subsequently judicially reviewing a decision of that Panel, as indicating that that topic is in dispute between the parties. I respectfully consider that by far the preferable reading of the document is that NRMA was not placing causation of the LSS injury in dispute prior to the referral of the dispute to the Panel.
Fourthly, of course it is well established that decision-makers are required to give adequate reasons for their decisions. But what are adequate reasons must be seen in many contexts, and must almost always be judged in accordance with the matters that have been placed in dispute by the parties before that decision-maker. Here, there was neither evidence, nor submissions, nor any other material, to suggest that the question of causation of the LSS injury was ever in dispute prior to the time when the Panel gave its reasons.
Fifthly, in my opinion, read as a whole, the decision of the Panel does indeed provide reasons for the ascription of the cause of the LSS injury to the accident in any event. I say that because the reasons: speak of the date and severity of the accident; recount the documents that say nothing about any alternative hypothesis regarding causation; recount the history whereby Mr Brown spoke of no relevant prior or subsequent traumatic events; recount the particular history whereby Mr Brown did ascribe "alternative causation" to his shoulder injury; and, finally, set out the temporal connection between the occurrence of the accident on 14 March 2015 and the first noting of the LSS injury on 3 July 2015.
In other words, in my opinion the reasons of the Panel adequately show all of the bases upon which the panel comfortably ascribed causation for the LSS injury to the accident.
In similar vein, it is not unimportant that, in the reasons of the Panel, there is more than one explicit reference to the guidelines upon which NRMA relies with regard to the question of assessment of causation.
Sixthly and finally, it is true that the guidelines as a whole set out a complex prescriptive mechanism as to how an assessor and a Panel are to determine a question of causation. But even assuming - for the sake of argument only, and contrary (without deciding) to the submission of Mr Brown that one can readily infer from the reasons that the guidelines had been complied with - that the guidelines had not been the subject of strict compliance, that is a detailed path that must be followed if one is required to embark upon the journey. Here, there was no requirement to engage with those detailed steps, because causation of the LSS injury was never a real issue for the determination of the Panel.
To summarise the above analysis for the convenience of the reader: the question of causation of the LSS injury was not in dispute, explicitly or implicitly, by the parties prior to the provision of reasons by the Panel; the Panel was deciding nothing about that particular question that was different from what the assessor had undisputedly decided; no evidence placed before the Panel raised an alternative hypothesis about causation of that particular injury that rose above mere speculation; and the reasons of the Panel were sufficient with regard to its attribution of causation for the LSS injury to the accident in any event.
For those reasons, grounds 1, 2, and 3 must fail.

Determination of Ground 4

Contrary to the submission of NRMA, in my opinion cl 1.41 of the SIRA Guidelines is generally objectively intended to ensure that the credibility of persons claiming to have suffered injury is not impugned to their disadvantage without such persons being given the chance to explain an inconsistency. In that sense, I think that senior counsel for Mr Brown was generally correct to submit that it is a de facto analogue of the well-known rule in Brown v Dunne (1893) 6 R 67.
Having said that, it is quite true that in Dominice it was accepted by the Court of Appeal that the provision of an opportunity to comment to a claimant can be beneficial to both parties: at [72].
Speaking now in a little more detail about Dominice, in that case a doctor qualified by an insurance company had assessed WPI of the claimant as 0%. Subsequently, an assessor found that WPI was well over the crucial cut-off point. There was no material in the reasons of the assessor to suggest that the clause had been complied with. The insurance company submitted to the statutory Proper Officer that the failure by the assessor to refer to the clause could constitute a basis for finding that that was an assessment that "was incorrect in a material respect" and calling for a referral to a Review Panel. The Proper Officer agreed. The claimant commenced proceedings for judicial review of the decision of the Proper Officer to refer the matter to the Panel. Fagan J dismissed the application. The claimant appealed against that decision.
In the Court of Appeal, Basten JA queried whether the decision of the Proper Officer was amenable to such relief at all, on the basis that the application for judicial review of the decision "does not involve a challenge to 'the ultimate determination of a court or tribunal in any proceedings'": at [9]. Simpson JA engaged with the merits, and found that Fagan J had committed no error in finding that the Proper Officer had in turn committed no error in taking into account the non-compliance with the clause. Basten JA and Emmett AJA agreed with Simpson JA in that regard.
As I have said, the case can be taken as some authority for the general proposition that the clause is to the benefit of both parties to a dispute, and that it may play a role in a referral by the Proper Officer pursuant to the test in the statute. And I also accept that the requirement of compliance with the clause has been made more rigorous by amendment since the delivery of that decision. But it is another thing entirely to say that failure to demonstrate compliance with the clause in these reasons of this Panel is a basis for judicial review, whereby its decision is liable to be quashed, in the circumstances of this case.
Here, the inconsistency upon which NRMA relies was between a clinical presentation on one day before the assessor, and a subsequent presentation months later, with regard to conditions that could be variable. And it is noteworthy that, in Dominice, the assessor who examined the claimant subsequently was "at a loss to explain" the notably marked divergence between the highly restricted presentation of the claimant on that occasion, and her very different presentation some time previously: at [28] to [33]. In the circumstances, it is not surprising that it was found that the Proper Officer was legally entitled to take into account the failure of the assessor to bring those inconsistencies to the attention of the claimant, in exercising his or her statutory function. In contrast, the distinction here is between an assessment within DRE I and DRE II, in the context of both the assessor and the Panel having found that there had indeed been an injury to the LSS of Mr Brown.
More generally, I cannot accept that the decision of Dominice mandates that it must have been a legal error, able to be relied upon by NRMA in this application, for the Panel simply to fail to draw to the attention of Mr Brown that its assessment of his clinical presentation was more favourable than the assessment previously made by the assessor.
And if I be wrong in that, and it was some kind of legal error for the Panel apparently to fail to comply with the clause, I think it a matter of speculation only that Mr Brown may have said, with regard to the subsequent finding that was favourable to him, something disadvantageous to himself about the prior finding of resolution of injury made by the assessor, whereby the Panel would ultimately have made a finding to the advantage of NRMA in its certificate and reasons.
In other words, if indeed there was a legal error committed by the Panel, and it is indeed a foundation for judicial review, the factual thesis upon which NRMA submits that it could have "made a difference" is in my opinion so tenuous that I would refuse relief in the exercise of my discretion with regard to applications for judicial review.
On the various bases above, I would not uphold Ground 4.

Conclusion

No grounds having been upheld, the summons will be dismissed.

Costs

Despite my desire to receive submissions about costs contingently at the hearing, it was explained that there may be some complication about the question, depending upon the substantive outcome. I expressed my readiness at the hearing to reserve costs; my Associate will be in contact with both parties in order to set out a logistical way forward in resolving any further dispute in that regard in Chambers.

Orders

I make the following orders: 1. The amended summons of the plaintiff, Insurance Australia Limited trading as NRMA, filed on 14 August 2019 is dismissed. 2. Costs reserved.

Amendments 24 September 2019 - Cover page: Counsel R Sheldon "SC" was added, Paragraph 68 line 3: Amended "[26]" to "[27]". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2019

At a glance

Court

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Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Cited By (1)