[2005] NSWCA 208
South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421
[2007] NSWCA 16
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Judgment (24 paragraphs)
[1]
mmigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82
Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 282 ALR 24; [2011] FCA 757
O'Connell v Nixon (2007) 16 VR 440; [2007] VSCA 131
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
Raina v CIC Allianz Insurance Limited (2021) 95 MVR 73; [2021] NSWSC 13
Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (2015) 89 NSWLR 104; [2015] NSWCA 73
Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211
RTA v McGuinness (2003) Aust Torts Reports 81-688; [2002] NSWCA 210
Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208
South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Category: Principal judgment
Parties: Insurance Australia Limited trading as NRMA Insurance (plaintiff)
Bojan Trkulja (first defendant)
The President of the Personal Injury Commission of New South Wales (second defendant)
Drew Dixon and Geoffrey Curtin in their capacities as Medical Assessors, Robert Foggo in their capacity as a Member, comprising the Review Panel of the Personal Injury Commission (third defendant)
Representation: Counsel:
J Gumbert with J Isackson (plaintiff)
F Curran (first defendant)
[2]
Solicitors:
Moray & Agnew (plaintiff)
Carters Law Firm (first defendant)
Crown Solicitor's Office (second and third defendants)
File Number(s): 2023/77023
Publication restriction: Nil
Decision under appeal Court or tribunal: Personal Injury Commission of New South Wales
Date of Decision: 9 December 2022
Before: Member Robert Foggo, Medical Assessor Dr Drew Dixon and Medical Assessor Dr Geoffrey Curtin
File Number(s): R-M10503873/22
[3]
Introduction
Bojan Trkulja ('the first defendant' or 'the claimant') was involved in a motor vehicle accident on 3 January 2017 in Casula, NSW: he was a back seat passenger in a vehicle that collided with the rear of another vehicle. The first defendant alleges that he sustained injuries to his cervical spine, lumbar spine and left shoulder in that accident, resulting in permanent impairment to these body parts.
By its summons filed 7 March 2023, Insurance Australia Limited trading as NRMA Insurance ('the insurer') seeks judicial review of a series of decisions of a Review Panel of the Personal Injury Commission of New South Wales ('the review panel'), culminating in its decision dated 9 December 2022. The review panel confirmed the assessment of the medical assessor - who assessed the first defendant's whole person impairment as 17%. That assessment entitled the first defendant to damages for non-economic loss: s 131 of the Motor Accidents Compensation Act 1999 (NSW) (the 'MAC Act').
The first defendant is the only active defendant in the proceedings. The President of the Personal Injury Commission of New South Wales ('the second defendant' or 'the Commission'), and the review panel (constituted by Drew Dixon, Geoffrey Curtin and Robert Foggo) have filed submitting appearances.
[4]
Background
Following the motor vehicle accident, the first defendant, on 19 January 2017, lodged a claim for compensation with the CTP insurer of the vehicle at fault alleging that he sustained psychiatric injury, and injury to his cervical, thoracic and lumbar spine as well as to his left shoulder.
There was a dispute between the insurer and the first defendant as to whether the degree of permanent impairment sustained by the first defendant was greater than 10%: s 58(1)(d) of the MAC Act. The dispute was subsequently referred to the Commission for assessment by an application for assessment of impairment filed by the insurer on 27 May 2020.
The first defendant filed a Reply to an Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service on 17 June 2020.
[5]
The medical assessment by Medical Assessor Shahzad
On 28 February 2022, the first defendant was assessed by Dr Farhan Shahzad, a medical assessor of the Commission. Following his assessment of the first defendant, Medical Assessor Shahzad issued a certificate under s 61 of the MAC Act dated 17 March 2022. By that certificate, Medical Assessor Shahzad concluded that the first defendant sustained a number of injuries - to his cervical spine, lumbar spine and left shoulder - and that those injuries were caused by the motor accident, and gave rise to a whole person impairment ('WPI') of 17%.
In reaching his assessment of a 17% WPI, the medical assessor found that the first defendant had sustained a 5% WPI to his cervical spine, an 8% WPI to his left shoulder, and a 5% WPI to his lumbar spine. The medical assessor also found that the injury alleged by the first defendant to his thoracic spine had "resolved" and gave rise to no assessable permanent impairment.
[6]
The insurer seeks a review of the decision of Medical Assessor Shahzad
On 13 April 2022 the insurer sought a review of that assessment by a medical review panel - relevantly, the third defendant - pursuant to s 63 of the MAC Act.
The application filed by the insurer was not in evidence, but the submissions in support of that application were. Put simply, the submissions were to the effect that there was reasonable cause to suspect that the medical assessor's assessment was vitiated by a number of material errors, of which five were identified.
The first defendant filed a document titled: 'Reply to an Application for a Review of a Medical Assessment by the Medical Assessment Service' dated 11 May 2022. The first defendant also filed, with that application, submissions that - put simply - opposed the insurer's application: the essential argument advanced was that the medical assessor's assessment was correct "and that the insurer's submissions failed to reveal any error beyond the trivial, insignificant or immaterial".
On 19 May 2022, a delegate of the President of the Commission referred the application to a medical review panel on the basis that there was "reasonable cause to suspect that the medical assessment is incorrect in a material respect". The specific finding was:
The insurer submits that the [medical assessor] erred in failing to adequately consider the relevant material, resulting in a failure to afford procedural fairness. This ground provides me with a reasonable cause to suspect that the medical assessment is incorrect in a material respect.
On 10 June 2022, the Commission confirmed that the review of the medical assessment of Medical Assessor Shahzad had been allocated to a review panel comprising Member Terry Broomfied (as it happens, the member of the review panel was Robert Foggo, and not Terry Broomfied), Assessor Drew Dixon and Assessor Paul Curtin. By that communication, the Commission noted that an "initial teleconference" had been scheduled for 21 July 2022 and advised that:
… At this teleconference, the Panel may:
• reach a decision
• decide that an examination of the claimant is required in order to make a decision
• decide that additional information is required to make a decision and/or
• decide that a further conference to the Panel is required in order to make a decision.
The Commission also noted that:
If either party objects to the Review Panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why it is believed an examination of the claimant is required. If no objections are received by the initial conference date, the Panel will assume that there is no objection to the review being conducted on the documentary material provided.
[7]
Grounds of review: a summary
The insurer raises four grounds of review in relation to the decision of the medical review panel. Those errors, shortly stated, are said to be: first, that the review panel failed to conduct the assessment of the claimant "afresh" as required by s 63(3A) of the MAC Act; secondly, the review panel failed to make findings in the manner required by cll 1.5 - 1.7 of the Motor Accident Permanent Impairment Guidelines ('the Guidelines'); thirdly, that the review panel erred in law in excluding the insurer's medico-legal evidence from its consideration; and, fourthly, that the review panel "failed to expose its actual path of reasoning" with regards to why a re-examination of the claimant was not required, and in relation to causation.
It is convenient to deal with the grounds slightly out of order: I will commence with ground 3 (which relates to the review panel excluding the insurer's medico-legal evidence); ground 2 (which relates to causation); ground 4 (which, as noted below, is confined to a ground which relates to ground 2 - namely, that the review panel's reasons in connection with causation were legally inadequate); and then ground 1 (which relates to the alleged error in approach by the review panel).
[8]
Ground 3: the exclusion of the insurer's medico-legal reports
[9]
Introduction
The insurer's third ground of review is that the review panel erred in excluding "from its consideration" the insurer's medico-legal evidence - on the ground that those specialists had not complied with cl 1.41 of the Guidelines.
It was accepted by the parties that the decision of the review panel had the consequence of the review panel excluding from its consideration all of the medical evidence secured by the insurer to answer the first defendant's claim (exhibit B) - being:
1. reports from Dr Muratore (sport and exercise physician) dated 13 August 2020 and 11 November 2021;
2. a report from Dr Harvey (orthopaedic surgeon) dated 18 June 2019;
3. reports from Dr Hall (occupational physician) dated 14 March and 7 April 2018 and 17 April 2020;
4. reports from Dr Roberts (Dr Roberts' reports were not in evidence) dated 16 October 2017 and 17 March 2020; and
5. report from Mr Haralambous (Mr Haralambous' report was not in evidence, but he appears to have conducted a form of psychometric testing on the first defendant) dated 22 July 2019.
Put simply, but explained in more detail in what follows, the circumstances giving rise to this challenge have their genesis in the first defendant submitting, initially to the medical assessor but later to the review panel, that the insurer's medico-legal reports were required to, but did not, comply with cl 1.41 of the Guidelines - with the consequence that procedural unfairness had been visited upon him, which warranted excluding those reports when determining the medical dispute. This submission was accepted by both the medical assessor, and by the review panel - the latter of whom described the submission as being "clearly correct".
What, then, was the first defendant's argument? I will set this out.
[10]
The first defendant's "Guideline argument"
The argument raised by the first defendant, which was in written submissions attached to the Reply to an Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service that he filed on 17 June 2020, was that the insurer's medical evidence was required to, but did not, comply with cl 1.41 of the Guidelines. The medical assessor noted this argument in the medical assessment certificate he issued under s 61 of the MAC Act in these terms (report p 2):
The [first defendant] submits that many of the insurer's medical reports contain allegations of inconsistency that were never put to the [first defendant], meaning they are in violation of procedural fairness as required by the SIRA Motor Accident Permanent Impairment Guidelines 2018 … para 1.41 …
As it happens, the medical assessor - implicitly - accepted this submission because he "disregarded" the reports, or gave the reports "little weight". For example, in relation to Dr Hall's second report dated 17 April 2020, the medical assessor stated that it "should be disregarded for lack of procedural fairness" to the first defendant. And, by way of further example, in relation to a report from Dr Harvey dated 18 June 2019, the medical assessor stated that this report "should be disregarded or given little weight based on procedural unfairness" to the first defendant. Later, the medical assessor noted that in reports secured by the insurer "allegations of inconsistencies are made that are not put, making them procedurally unfair to the [first defendant]" and that "these reports should be discounted or given little weight by any MAS assessor for not complying with the standards of procedural fairness required by the SIRA Guidelines".
It is apparent, in my respectful view, that despite accepting the submissions advanced by the first defendant, the medical assessor did not undertake any analysis of why the medico-legal reports were required to comply with the Guidelines. In fairness, however, nor did the submissions that were advanced by the first defendant. Nevertheless, on an issue such as this, the medical assessor was required to analyse and explain the basis for this holding.
Following the insurer filing an application to review the decision of the medical assessor, the first defendant filed a Reply to an Application for a Review of a Medical Assessment by the Medical Assessment Service dated 11 May 2022, and (undated) submissions were filed in support of it. Those submissions noted that the medical assessor had, in substance, rejected the insurer's medico-legal evidence based upon the failure to comply with the Guidelines, ultimately submitting that that approach was a correct one.
[11]
The submissions: the competing positions
The insurer's essential submission was that the review panel made an error of law, given that there was no statutory requirement for medico-legal experts to comply with the Guidelines; thus, there was no prohibition in that evidence being considered, as the review panel held (insurer's submissions at [72]-[74]). The insurer's argument, as ultimately advanced, was that that construction - namely that the Guidelines were not applicable to medico-legal experts - was apparent from not only the terms of the MAC Act (notably, ss 58(1)(d), 131 and 132 of the MAC Act), but the Guidelines themselves.
The first defendant submitted that the decision of the review panel, consistent with the written argument he advanced to the review panel, was correct. This conclusion was argued to follow, essentially for two reasons: first, it was argued that the review panel had "unfettered discretion" or "discretion at large"; and, secondly, the Guidelines apply broadly to the "medical assessment process" which necessarily includes the medico-legal reports secured by the insurer.
[12]
Consideration and disposition
In my respectful view, the review panel fell into legal error by misconstruing the MAC Act, and misdirecting itself. My reasons for that conclusion are as follows.
First, contrary to what was argued by the first defendant, the review panel does not have an unfettered discretion. Even assuming it is correct to characterise the power conferred upon the review panel as a "discretion", it is neither unfettered nor, as was argued, "at large". That is because "[e]very statutory discretion, however broad, is constrained by law … Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred": Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [23] and [90].
Secondly, in my respectful view, nothing in the Personal Injury Commission Rules 2021 (NSW), relied upon by the first defendant - notably rr 128(1), (2) and (4) - dictates a contrary conclusion. In relation to those rules, the first defendant drew attention to the fact that they provide that the review panel can "conduct and determine the proceedings in accordance with procedures determined" by it (r 128(1)); that the review panel may determine the proceedings "solely on the basis of the written application" (r 128(2)); and that the panel "is not bound by the rules of evidence" (r 128(4)). The first defendant relied on these provisions, submitting that these provisions provided the review panel with a "carte blanche discretion vesting in the panel as to how it goes about its business and what it does". In the context of the excluded medical reports, the first defendant submitted that the 'discretion' of the review panel did not miscarry: it was submitted that "that discretion is so significantly wide and broad and unfettered that they can make this decision and either party that it goes against is stuck with it".
Provisions of the kind relied upon by the first defendant are "intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals": Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [49] (dealing with the similarly worded s 420 of the Migration Act 1958 (Cth)); South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [87]-[88], [90] (dealing with the similarly worded s 354 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)). In my view, contrary to what the first defendant submitted, these provisions do not empower the review panel to depart from its duty to apply the general law: Li at [12] and [14]; Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26, 30-31; JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [147]. (Nor, to be clear, do I consider that they authorise the approach that was taken here by the review panel, as I next explain).
[13]
Ground 2: causation
The insurer's second ground of review is that the review panel erred in determining causation in three respects: first, that there was a reversal of the onus of proof (ground 2(a)); secondly, that the review panel erroneously confined its consideration of the evidence on causation, which was in breach of the Guidelines (ground 2(b)); and, thirdly, the review panel failed to make findings in connection with causation, which constituted a breach of the Guidelines (ground 2(c)).
It is necessary to first explain how the review panel dealt with the issue of causation, and also to note what was common ground between the parties.
[14]
The review panel's decision: the issue of causation
The review panel's decision which dealt with the issue of causation is that dated 9 December 2022 - albeit that it foreshadowed an approach to the issue in its reasons dated 6 September 2022 (as noted in [19] above; see also [109], below).
An issue that had been raised by the insurer was whether or not the accident itself was of sufficient severity to cause the plaintiff to suffer the injuries that he did, in the degree of permanent impairment alleged. In relation to this issue, the review panel remarked, having noted that it had refused an application that the first defendant be re-examined (review panel reasons at [23]):
… that it would separately determine the insurer's contention that the motor vehicle accident was not the cause of the injuries to the claimant's cervical spine, lumbar spine and left shoulder.
To signpost an issue: the insurer argued that this paragraph evidenced error on the part of the review panel because it identified too narrowly the issue of causation. That is, although an issue involved in causation was whether the motor accident was "not the cause" of the first defendant's injuries, it was not the entire medical dispute under s 58(1)(d) that the review panel was required to address.
To return to the way in which the review panel addressed the question of causation, the review panel in its reasons at [35]-[37] identified the relevant principles of law that applied to its determination. No issue is taken by the insurer about that analysis - so far as it went. The review panel then noted, in its reasons at [38] that it was "obliged to exclude from consideration all of the medical reports relied upon by the insurer" for what they considered to be the failure of the insurer to comply with cl 1.41 of the Guidelines (this is the subject of the insurer's third ground of review: see [26]ff, above).
In excluding from its consideration the insurer's medical reports, the review panel said the following (review panel reasons at [39]):
None of the medical reports relied on by the claimant address the issue whether the accident was of sufficient force to cause the injuries and ongoing disabilities of which the [first defendant] alleges were the result of the motor vehicle accident. It therefore follows that the issue as to whether the motor vehicle accident caused or materially contributed to the [first defendant's] injuries and ongoing disabilities is confined to the competing opinions of the accident reconstruction experts relied upon by each party as well as the submissions based on [those] reports …
[15]
Reversal of the onus of proof
The insurer's first causation argument was that the review panel, although correctly setting out the test of causation, erroneously applied it by reversing the onus of proof - placing it "on the insurer to disprove causation" (insurer's submissions at [59]-[60]; summons ground 2(a)). The insurer relied, in aid of this argument, upon the decision in Allianz Australia Insurance Limited v MacKenzie & Ors (2014) 66 MVR 124; [2014] NSWSC 67 - which, it was submitted, illustrated the precise nature of the error committed here.
In my view the starting point are the reasons of the review panel - specifically, the paragraph which the insurer seeks to impugn. In determining whether there has been a misapplication of the correct test, the focus is upon the substance of the reasons, reading them fairly and as a whole: IAG Limited t/as NRMA Insurance v Chahoud (2019) 89 MVR 87; [2019] NSWSC 767 at [57], [61]-[63]. It is, of course, well recognised that the Court should not overly scrutinise reasons of administrative decision-makers "minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280, 287; [1993] FCA 456 ('Pozzolanic'); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; [1996] HCA 6.
Here, the insurer accepted that the review panel correctly identified the appropriate legal principles in connection with causation, as set out in the reasons of the review panel at [35]-[37]. Its complaint is directed to what it argued was the misdirection in the review panel reasons at [51].
In my view, it is apparent that the review panel reversed the onus of proof. That is for the following reasons.
First, the statement itself (review panel reasons at [51]), is a misstatement of the legal onus: the onus is upon the first defendant to satisfy the review panel that causation is established, not upon the insurer. Secondly, although I have, consistent with the authorities referred to in [81] above, approached this issue unconcerned with "looseness" in the language of the review panel or "unhappy phrasing" (Pozzolanic at 287), it should be noted that: (a) it is a dispositive finding that leads immediately to the review panel's conclusion; (b) there is no earlier clear and correct legal direction given by the review panel on this specific issue: RTA v McGuinness (2003) Aust Torts Reports 81-688; [2002] NSWCA 210 at [14]: the legal principles set out by the review panel relate to causation generally, and not to any issue about where the onus of proof applies in connection with causation; and, (c) there is no reference to s 5E of the Civil Liability Act 2002 (NSW) ('CLA') which identifies where the onus of proof lies: s 3(2)(a) of the CLA; Raina v CIC Allianz Insurance Limited (2021) 95 MVR 73; [2021] NSWSC 13 at [65] ('Raina').
[16]
Failing to consider all issues relevant to causation: non-compliance with the Guidelines
The insurer's next argument was that the manner in which the review panel undertook its task erroneously constrained the causation enquiry: it was not, contrary to the way in which the review panel approached the matter, limited to a single issue, and the review panel was in error in resolving the causation issue simply on the basis of the competing opinions of accident reconstruction experts (and the submissions about those expert opinions). The insurer further submitted that the questions were appreciably broader than that, extending to, at a minimum, the questions and issues identified in various clauses of the Guidelines (specifically, cll "1.5-1.7, 1.18 and 1.120 of the guidelines": insurer's submissions at [61]-[62]). The insurer also argued that, in any event, it was impermissible for there to be any form of confining the statutory enquiry and in this respect relied upon the decision in Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 ('Mills').
Subject to the issue about the Guidelines (see [55], above and [88], below) I accept each of the insurer's submissions - which covers ground 2(b) of the summons. In my view the decision in Mills confirms that it is incumbent, in the context of a medical dispute under s 58(1)(d) of the MAC Act, for the entire medical dispute to be the subject of an assessment: that is, by the combined operation of ss 58(1)(d) and 131 of the MAC Act, the function of the medical assessor (and, necessarily, the review panel), to whom a dispute has been referred, is to assess the degree of permanent impairment as a result of the injury caused by the motor accident: Mills at [79]; see also Ackling v QBE Insurance (Australia) Limited (2009) 75 NSWLR 482; [2009] NSWSC 881 at [77]-[79]; Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [17] ('Rodger'). It follows that, to do otherwise - and confine the enquiry to a sub-issue within that dispute - would be to contravene the statutory directive. That is what occurred here. So much is apparent from the reasons of the review panel at [51]-[52], and the absence of any other findings in connection with causation.
The process by which the review panel was required to assess the issue of causation was, as the insurer argued, also reinforced by a consideration of the Guidelines, and as explained in Briggs v IAG Limited t/a NRMA Insurance (2022) 100 MVR 232; [2022] NSWSC 372 at [67]-[76]. Without seeking to elevate the status of the Guidelines in the judicial review context (McGiffen at [57]), they are consistent with the above analysis. Here, rather than address the causation issues comprehensively, as it was required to, the review panel merely dealt with a confined issue about causation - viz., resolving the competing opinions expressed by the accident reconstruction experts. It did not, therefore, address the "medical dispute".
[17]
Ground 4: failure to provide adequate reasons
The insurer's fourth ground of review - which challenges the adequacy of the reasons of the review panel - had two parts to it: first, that the review panel failed to "expose its actual path of reasoning" for why the review panel "had determined that a re-examination was not required, without providing reasons for that conclusion" (insurer's submissions at [81]; summons ground 4(a)); and, secondly, that the review panel failed to "expose its actual path of reasoning" in connection with its determination on causation (insurer's submissions at [82]; summons ground 4(b)).
The review panel was required to provide reasons for its decision: s 61(9) of the Act. It is accepted, in the context of the Act, that the requirements are as expressed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], [55]-[56]: see, for example, Jarvis v Allianz Australia Insurance Limited (2022) 102 MVR 476; [2022] NSWCA 232 at [52] and [54] at [22]. The present case calls for no close analysis of the relevant principles.
During the hearing, the insurer expressly abandoned any ground of review based upon the "reasons" of the review panel in connection with the decision that re-examination of the first defendant was not required. Accordingly, ground 4(a) falls away.
In relation to ground 4(b), the insurer's submission was related to, and contingent upon, its causation arguments in connection with ground 2; that is, if ground 2 was made out, then it followed that the review panel had failed to provide adequate reasons dealing with that topic. The first defendant did not submit to the contrary (its argument was confined to a submission that causation had been appropriately dealt with by the review panel).
In my view, it is slightly inapt to characterise what has occurred here as a failure to give adequate reasons. That is because, in relation to the insurer's first causation argument, that turned upon a legal misdirection in connection with the onus of proof in connection with causation. An error of that kind is not an error relating to reasons. Further, in connection with the insurer's second causation argument - that the review panel impermissibly confined its assessment to a single factual issue relating to causation: see [86]ff, above - that also amounts to legal misdirection or a misunderstanding of the statutory requirement governing the exercise of the assessment it was required to conduct. Although it might be said that there was a "failure" to give reasons in connection with all issues of causation - the "failure" being that the review panel omitted to address all issues of causation - that was the product of a misdirection or misunderstanding to which reference has been made. So understood the error, in my view and as a matter of substance, is not an error relating to reasons. I would, therefore, not uphold ground 4(b).
[18]
Ground 1: the failure to conduct the assessment "afresh"
[19]
Introduction
The insurer alleged, by this ground of review, that the review panel failed to conduct an assessment "afresh" - as required by s 63(3A) of the MAC Act - in two respects: first, when addressing the issue of causation, in the confined way that it did, the review panel failed to apply s 58(1)(d) of the Act (ground 1(a)); secondly, the review panel undertook an approach of only reviewing "aspects" of the decision of the medical assessor, "rather than undertaking its own comprehensive assessment" (ground 1(b)).
Before dealing with these grounds, I will identify the relevant statutory provisions that apply to the assessment that is performed by the review panel.
[20]
The statutory provisions: the "new assessment"
Upon conducting a medical assessment, the medical assessor is required to issue "a certificate as to the matters referred for assessment": s 61(1) of the MAC Act. Generally speaking, any certificate "as to a medical assessment matter is conclusive evidence as to the matters certified …": s 61(2).
Two relevant exceptions to the conclusiveness of the certificate issued by a medical assessor are when there is a further medical assessment, or the medical assessment is referred to a review panel, as I next explain.
Following a medical assessment, a matter may be referred for further medical assessment, inter alia, "on the grounds of the deterioration of the injury" or where there is "additional relevant information about the injury" (s 62(1)(a)), but in either respect only where the "deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment" (s 62(1A)). A certificate that is issued following a referral for further medical assessment "prevails over any previous certificate as to the matter to the extent of any inconsistency": s 62(2).
A party to a medical dispute may apply to the President of the Commission "to refer a medical assessment by a single medical assessor … to a review panel for review": s 63(1). Any such application for referral "may only be made on the grounds that the assessment was incorrect in a material respect": s 63(2). Upon satisfaction that "there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application", the President is to arrange for such application to be referred to a review panel: s 63(2B).
Section 63(3A) then provides that the review is to be a "new assessment":
The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.
Having conducted that assessment, a review panel may confirm the certificate issued by the medical assessor "or revoke the certificate and issue a new certificate as to the matters concerned": s 63(4). Section 61 applies to any new certificate issued: s 63(6).
[21]
Consideration and disposition: the grounds of review
In relation to ground 1(a) - which essentially relates to the way and manner in which the review panel addressed the issue of causation - I have dealt substantively with this as part of ground 2 (see [86]ff, above). In my view, for the reasons given in connection with that ground, it is clear that the review panel failed to conduct a new assessment, as it was plainly required to. The errors related to the misdirection in connection with the onus of proof (ground 2(a)) but also a legal misdirection or a misunderstanding of the statutory requirement governing the exercise of the assessment it was required to conduct (ground 2(b)). In my view, this ground is established by those other grounds.
I turn now to address ground 1(b). In relation to this ground, the overarching complaint of the insurer is that the review panel "placed an onus on the insurer to prove error in each and every aspect" of the medical assessor's decision before determining whether it would "review" that aspect of the decision; and, where the review panel was unpersuaded, it declined to review that part of the medical assessor's decision (insurer's submissions at [43]).
Whether the review panel gave consideration to "the matters with which the medical assessment is concerned" turns upon a consideration of the reasons of the review panel, taking into account the material before it: Rutland at [26]. The insurer argued that this erroneous approach was evident from an assessment of the reasons of the review panel in the following respects.
First, the insurer argued that this error was evident from the conclusion of the review panel, in its 'Review of Medical Assessment' report dated 6 September 2022 - where the insurer submitted that the review panel (erroneously) "stated that it would only be determining the issue of causation" (insurer's submissions at [44] - underlining in original). In my view, this submission essentially repeats the complaint which is covered by ground 1(a) and grounds 2(a) and (b). My resolution of those grounds deals with this submission.
Secondly, the insurer focused upon the reasons of the review panel in its 'Review of Medical Assessment' report dated 6 September 2022 (at [23]), that provided:
… the Panel finds there is no dispute, ambiguity or uncertainty as to the relevant clinical findings and rejects the submissions from the insurer that a re-examination of the [first defendant] must take place, and will proceed to separately determine the issue of causation.
[22]
Relief and remittal to the Commission
The first defendant did not submit that, if relief were otherwise available, any matter arose that would warrant discretionary refusal. In my view, given the nature of the errors that I have identified, there are no discretionary considerations telling against the relief the insurer seeks.
By its summons, the insurer sought, inter alia, remittal of the matter to a differently constituted review panel for determination in accordance with law. The first defendant made no submissions about this - written or oral. That order should be made.
In my view, it would be highly desirable for the matter to be the subject of a new assessment, under s 63(3A) of the MAC Act, by a differently constituted review panel. The interests of justice unquestionably favour that approach - including the appearance of impartial justice (Seltsam Pty Ltd v Ghaleb (2005) 3 DDCR 1; [2005] NSWCA 208 at [12]-[13], [142]; BCS v NSW Civil & Administrative Tribunal [2015] NSWSC 126 at [53]); and because of the likelihood that the current review panel (who have already given detailed consideration to a range of issues that arise in the medical dispute) would be unable to approach the medical dispute "entirely afresh" (Raina at [102]).
[23]
Orders
For the above reasons, I make the following orders:
1. Order in the nature of certiorari moving into this Court and quashing the certificate issued by the third defendants, constituting a Review Panel of the second defendant, dated 9 December 2022.
2. Order that proceedings PIC matter number R-M10503873/22 is remitted to the second defendant to be referred, under s 63 of the Motor Accidents Compensation Act 1999 (NSW), to a differently constituted review panel to be determined according to law.
3. Order that the first defendant pay the plaintiff's costs of the proceedings in this Court.
[24]
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: 16 August 2023
Parties
Applicant/Plaintiff:
Insurance Australia Limited trading as NRMA Insurance
On 27 July 2022, the review panel issued a 'Review of Medical Assessment' report. By that report, the review panel noted there appeared to be no dispute between the parties that the claimant had an "impairment of 5% of the cervical spine" but that there was dispute between the parties regarding the findings of Medical Assessor Shahzad that the impairments to the claimant's cervical spine, left shoulder and lumbar spine were caused by the accident, that the claimant had a 5% impairment of the lumbar spine, and that the claimant had an 8% impairment of the left shoulder. The review panel also advised that there would be no re-examination of the first defendant because it was "not required", however, the parties were requested to confirm that they agreed with this approach - that is "to confirm that they agreed to the Panel proceeding to determining the issues in dispute without re-examination as set out above".
By letter dated 1 August 2022, the first defendant advised that it consented to the review panel "proceeding to determine the issues in dispute without a re-examination" of the first defendant.
By submissions dated 3 August 2022, the insurer advised the review panel that there was a dispute in relation to the findings of Medical Assessor Shahzad that the claimant had an impairment of 5% to the cervical spine, and that it "strenuously oppose[d] the review panel proceeding to determine the issues in dispute without a re-examination of the claimant". It also argued that the review panel "must conduct its assessment afresh" (submissions at [8]); the requirements of cl 1.41 of the Guidelines (that relate, generally, to inconsistencies and were here argued to be relevant because it was argued that there were inconsistencies between the medical assessor's findings and information contained in the medical and other evidence relied upon by the insurer) were a procedural safeguard for the benefit of not only the first defendant, but the insurer as well (submissions at [11]-[20]).
On 6 September 2022, the review panel issued a further 'Review of Medical Assessment' report which contained their finding that there was "no dispute, ambiguity or uncertainty as to the relevant clinical findings and rejects the submissions from the insurer that a re-examination of the [first defendant] must take place". In reaching this conclusion, the Review Panel noted (at [11]):
Even though sub- clause ii of clause 4 states that if a "party has objected to the review being conducted "on the papers", the panel should generally conduct a re-examination", the panel has determined that in this particular case that a re-examination of the claimant is not required.
The review panel advised by its report dated 6 September 2022 that it would proceed "to separately determine the issue of causation" (at [23]).
On 4 October 2022 the review panel issued a further 'Review of Medical Assessment' report and directions requesting that the insurer provide the Commission with a copy of the report of Mr Raue dated 28 June 2019 - which the insurer had previously referred to when it conceded that the first defendant suffered a greater than 10% WPI as a result of the subject motor vehicle accident (that concession was later withdrawn by the insurer). The review panel also requested the parties to advise, by 10 October 2022, "whether they seek to adduce any further evidence or make any further submissions, and if so when that material will be provided".
Following this report and directions, the first defendant filed further submissions dated 9 November 2022.
By certificate issued 9 December 2022, the review panel confirmed the decision of Medical Assessor Shahzad dated 17 March 2022. That certificate was issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (NSW) albeit that the insurer noted, given the accident occurred prior to the commencement of that Act, the decision should have been issued under s 61 of the MAC Act. Neither party argued that anything turned upon this slip.
The parties accepted that the reasons of the review panel include each of the 'reports' that it issued, and that they formed part of the 'record' for judicial review purposes: the two requiring specific consideration, however, are those dated 6 September 2022 and 9 December 2022.
In the decision dated 6 September 2022, the review panel addressed the submission made by the first defendant - about the insurer's medical evidence failing to comply with cl 1.41 of the Guidelines - in these terms:
17. The [first defendant's] Submissions in Reply reiterated its initial submissions that the medico-legal reports relied on by the insurer each contained allegations of inconsistency which were not put to the [first defendant] as required by clause 1.41. It was further submitted that these reports could not be put to the claimant because this would be procedurally unfair to the claimant.
18. The panel agrees with this submission and notes that nowhere in the insurer's submissions has it identified how the reports of Dr Hall, Dr Roberts, Mr Haralambous and Dr Harvey, which clearly do not comply with the Guidelines, can properly be considered by the panel.
…
20. Each of the medico-legal reports relied on by the insurer are infected with error, as they clearly do not comply with the Guidelines …
The first defendant, on or around 9 November 2022, filed further submissions in reply. Those submissions merely repeated what had earlier been argued: namely, that the first defendant submitted that "significant procedural unfairness visited (sic) upon the [first defendant] by the insurer's reporting doctors" and that "the insurer's commissioned reports, which are all procedurally unfair to the [first defendant] in the matter (sic) described above".
The review panel returned to this issue in its decision dated 9 December 2022 - confirming the view that it had expressed in its decision dated 6 September 2022:
30. The insurer's submissions also rely on the reports of Dr Hall and Dr Harvey. However, in both Reports and Directions issued by the panel, it has accepted the [first defendant's] submissions that these reports do not comply with clause 1.41 of the MAA Permanent Impairment Guidelines, and accordingly have not been accepted by the panel.
31. In the insurer's final submissions, it relies on the report of Dr Muratore of 11 November 2021 … there was a finding of inconsistency in respect of the lumbar spine, and … he found that both Hoover's test and Byrne's test were positive. As none of these inconsistencies were put to the claimant as required by the Guidelines, the panel is unable to rely upon this report.
32. Dr Muratore's additional report of 13 August 2020 was also relied upon by the insurer in its submissions. As his examination of the claimant and his comments appears to be identical to examination and comments contained in his initial report, and as he has also not put any of the inconsistencies noted by him on this occasion to the claimant, this report also cannot be considered by the panel.
…
38. … However, in the present matter, the insurer has not challenged the [first defendant's] submission that the medical reports upon which the insurer relies do not comply with clause 1.41 of the MAA Permanent Impairment Guidelines. This submission is clearly correct, and the panel is accordingly obliged to exclude from consideration all of the medical reports relied upon by the insurer.
Thirdly, in my view, the Guidelines do not apply to medico-legal reports secured - in this case, by the insurer: the Guidelines apply to medical assessors and review panels in their assessment of medical disputes that are referred to them under the MAC Act.
The dispute between the plaintiff and the first defendant related to whether the degree of permanent impairment of the first defendant, as a result of the injury caused by the motor accident, was greater than 10%: s 58(1)(d). That dispute is within the definition of "medical dispute" - which means "a disagreement or issue to which this Part applies": s 57. Disputes of the kind referred to in s 58 are defined to mean "medical assessment matters": s 57.
A medical dispute (relevantly) can be referred to the President of the Commission for assessment under Part 3.4 of the Act by "either party to the dispute": s 60(1). Upon that referral to the Commission, the President "is to arrange for the dispute to be referred to one or more medical assessors": s 60(2). A 'medical assessor' is defined to mean "a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act": s 57.
A medical assessor "to whom a medical dispute is referred is … to give a certificate as to the matters referred for assessment" (s 61(1)), and that certificate "is to set out the reasons for any finding by the medical assessor … as to any matter certified in the certificate in respect of which the certificate is conclusive evidence": s 61(9). In connection with a review by a review panel, it is to be noted that such panel is to be constituted by three persons, two of which are medical assessors: s 63(3). Further, when conducting a "new assessment" (s 63(3A)), the review panel "may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned": s 63(4). (The reference in s 63(4) to "the matters concerned" is a reference to the "new assessment of all the matters with which the medical assessment is concerned": s 63(3A)).
The entitlement of the first defendant to obtain damages for non-economic loss depended upon the degree of permanent impairment exceeding 10%: s 131. In the event that there is a dispute about the degree of impairment being sufficient for an award of damages for non-economic loss, no damages may be awarded "unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment)": s 132(1). The method of assessing the degree of permanent impairment of an injured person is to be in accordance with Part 5.3 of the Act, and in accordance with the Motor Accidents Medical Guidelines issued for that purpose: ss 133(1) and 133(2).
The parties agreed that the relevant guidelines, for the purposes of s 133(2)(a), were those described as: Motor Accident Permanent Impairment Guidelines, version 1 effective 1 June 2018.Those Guidelines, which are issued under s 44(1)(c) of the MAC Act, state that they have been developed "for the purposes of assessing the degree of permanent impairment arising from the injury caused by a motor accident" in accordance withs 133(2)(a) of the Act: cl 1.1.
There is no doubt that when a medical dispute is referred to a medical assessor or review panel for assessment of a medical dispute, the medical assessor (and review panel) is required, when assessing (relevantly here) permanent impairment, to do so in accordance with the Guidelines. In my view that necessarily follows from, at least, s 132(1) of the Act - a provision that requires, when there is a threshold dispute, for the degree of permanent impairment to be "assessed by a medical assessor under Part 3.4 (Medical assessment)" - and s 133(2)(a) of the Act - a provision that requires the assessment of the degree of permanent impairment to be made in accordance with the Guidelines. That medical assessor, it is to be remembered, is the person to whom the medical dispute has been referred by the President of the Commission (s 60(2)), and is a person appointed "as a medical assessor for the purposes of" the MAC Act: s 57.
There are related requirements as well that are imposed upon medical assessors (and review panels), again contained within the Guidelines, that constrain the way in which they undertake their functions. For example, and relevantly here, medical assessors are required to undertake their assessments having regard to those clauses that deal with 'consistency' (cll 1.40 and 1.41): Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171 at [60]-[61].
However, the present issue does not concern medical assessors or a review panel and the requirement for them to adhere to the Guidelines when conducting their assessments. Rather, it concerns the need for medical experts, who prepare reports as evidence for a party to a medical dispute, to comply with the Guidelines (specifically, cl 1.41), in order to permit their use when there is a medical assessment matter.
What, then, is the statutory (or other) footing for this requirement, if any?
The review panel did not identify the basis for their holding, and the first defendant did not identify a statutory basis for this to occur. In my respectful view, none exists. It cannot be sourced in the MAC Act, as I have explained in [44]-[49], above.
In my view, there is no statutory expression requiring a medical practitioner, qualified by a party to give an opinion on, and undertake an assessment of, permanent impairment to comply with the Guidelines in any respect. Presumably they would do so, at least in the way in which they assessed and expressed any permanent impairment: a report that correctly addressed the requirements of the Guidelines in order to reach an impairment would facilitate clear identification of the degree of any permanent impairment and, further, whether there was likely to be a threshold dispute, or not. But that, of course, is propositionally distinct from mandating that they do so, with the consequence that the use of the report is precluded absent that compliance. And it is propositionally distinct from requiring that they comply with all the provisions within the Guidelines, with the consequence that the use of the report is precluded absent that compliance.
Before addressing the terms of the Guidelines, the following should be noted. There remains a question about the status of guidelines in the judicial review context. In Ali v AAI Limited [2016] NSWCA 110 at [85] ('Ali'), Leeming JA said that, of the two guidelines issued under the MAC Act, none of the statutory provisions under which those guidelines might issue "converts a guideline into delegated legislation which binds the parties or an assessor of its own force". See also Ali at [99]; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 at [57] ('McGiffen'). Nothing in what follows should be taken to touch upon that question.
In terms of the Guidelines, in my view there is nothing within them to support the conclusion reached by the review panel and the first defendant did not, in any written or oral submissions identify any clause - or statement - within them to support its engagement in line with the holding of the review panel. My reasons for that conclusion are as follows.
First, I consider the Guidelines confirm what is otherwise apparent from the terms of the Act - namely, that the Guidelines are directed to a medical assessor or a review panel undertaking a medical assessment of a medical dispute, and not more broadly. For example, cl 1.1 of the of the Guidelines provides that they "have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with section 133(2)(a)" of the MAC Act. And, by way of further example, cl 1.2 of the Guidelines provides: "A medical assessor undertaking impairment assessments for the purposes of the Act must read these Guidelines in conjunction with the AMA4 Guides". Put simply, the use of the phrase "medical assessor" in the Guidelines, in my view, is - unsurprisingly - consistent with its use in the Act: an examination of the terms of the Guidelines confirms that consistent and congruent use of the phrase "medical assessor".
Secondly, although it is impermissible, generally speaking, to use an instrument such as this to construe a statute (Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60; [2007] NSWCA 137 at [41]), it remains permissible to examine both the Guidelines and the Act to understand the operation of the statutory scheme: O'Connell v Nixon (2007) 16 VR 440; [2007] VSCA 131 at [28]. In my view - and assuming, favourably to the first defendant, that this approach could be employed - undertaking an examination of that limited kind provides no support for the conclusion of the review panel: the statutory scheme is as described in [47] and [49], above.
Thirdly, neither the review panel (nor the first defendant's submissions) engaged with the language of cl 1.41 of the Guidelines - how, and why, it applied to medico-legal experts: the very clauses relied upon by the review panel, to arrive at the conclusion that it did, are expressed to apply to medical assessors and not otherwise (emphasis added):
1.40 Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person's efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report.
1.41 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.
Fourthly, there are, within the Guidelines themselves, textual indicators that align with the defined scope of the operation of the Guidelines - viz., they apply to medical assessors when determining a medical dispute that is referred to them, and not to medico-legal experts. One is that the Guidelines themselves recognise a distinction (on the one hand) between a medical assessor and (on the other) those who provide medical reports or medico-legal reports: see, for example, cll 1.17 and 1.18.1. Clause 1.17, after directing the medical assessor to evaluate the available evidence to be satisfied that any impairment arises from an injury caused by the accident and is an impairment that is defined in cl 1.9 of the Guidelines, then gives the medical assessor further directions (described as "stages") in order to assess the degree of permanent impairment. The first stage (cl 1.18.1) is a direction to "review and [evaluate] all of the available evidence" including "medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports)" and "medico-legal reports".
There is a further difficulty with the first defendant's argument. The underlying premise of it is the notion that it supports and achieves procedural fairness. Quite why procedural fairness has anything to do with the securing of evidence by the parties to a medical dispute (or, logically, even before a dispute has arisen and, further, absent exercise of any statutory power) was not identified. Indeed, the first defendant's argument was that it applied to all medical evidence, including, by way of illustration, hospital notes and treating medical records. In my respectful view this argument travels well beyond procedural fairness orthodoxy - viz., essentially (and relevantly here), the exercise of statutory power that is apt to adversely affect rights or interests is conditioned upon the observance of the principles of procedural fairness. Given the first defendant's argument, that orthodoxy should be restated, and it is convenient to do so by reference to what was very recently said by the High Court in Disorganized Developments Pty Ltd v South Australia [2023] HCA 22 at [33] (footnotes omitted):
Since Twist, the law has evolved to include an established and "strong" common law presumption, generally applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests, that the exercise of the power is impliedly conditioned on the observance of procedural fairness. Consistent with the historical scope of the duty of procedural fairness, the core operation of the presumption requires the provision of procedural fairness where the relevant power directly affects the rights or interests of a particular individual. In such a case, the presumption operates "unless clearly displaced by the particular statutory scheme".
Further, to the extent that the first defendant submitted that the Guidelines apply more broadly to the "medical assessment process" (a phrase, I add, that is not defined in the Act), I do not accept the submission. The first defendant did not refer to any provision in the Act, nor in the Guidelines themselves, to support, directly or indirectly, that approach - and in my respectful view, none exist.
For completeness, I add the following. The review panel noted that "the insurer had not challenged" the first defendant's submissions in connection with the argument that the Guidelines applied to the insurer's medico-legal reports: review panel reasons at [38]. The review panel did not go on to identify the significance of that, but a reasonable inference is that the review panel considered that this was of some - unspecified - importance. In my respectful view, as I have explained, the review panel was in error in holding that the Guidelines apply to the insurer's medico-legal reports, and it is not otherwise simply because the review panel considered that "the insurer had not challenged" the first defendant's submissions. The mere fact that no submissions are directed to a particular issue by a party does not inevitably result in an implicit concession of that issue. It would depend upon a number of matters, including the particular context, and whether the issue was one of fact or law: Electricity Commission (NSW) v Yates (1991) 30 NSWLR 351, 357-358; Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd (2015) 89 NSWLR 104; [2015] NSWCA 73 at [15].
Separately, even if no submissions were made by a party on a matter such as this - which inevitably involves a question of the construction of the MAC Act and the interplay between it and the Guidelines - it was incumbent upon the review panel to satisfy itself as to the correctness of the first defendant's submission. If called upon to address a legal issue, as it was here - viz., to construe and interpret the terms of the MAC Act (and, the Guidelines made under that Act) and, depending upon how the issue was resolved, to exclude all of the insurer's medico-legal evidence - then plainly the review panel must do so, and it is not relieved from the duty to construe those instruments merely because a party made no submissions about that issue. That is because - putting to one side questions of procedural fairness (and none here arise) - no "party, by its process or arguments can impose on [a court] an incorrect application of the law": Klein v Minister for Education (2007) 81 ALJR 582; [2007] HCA 2 at [38]) - or, as it is sometimes expressed, that the "parties cannot make a concession that would bind [the] Court as to the proper construction of the statutory provisions": Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited (2020) 282 FCR 130; [2020] FCAFC 205 at [25].
Here, aside from the review panel stating that the first defendant's submission was "clearly correct", it did not undertake any analysis - at least none that appear in the reasons provided - to explain the basis for why it reached that conclusion.
It is important to deal with one further issue. Notwithstanding the challenge that the insurer made to the approach of the review panel, when dealing with the so-called application of the Guidelines to medico-legal reports, the insurer further submitted that it would have been open, given the non-compliance with the Guidelines, for the review panel to give the opinions contained within the medico-legal reports little - or no - weight (insurer's submissions at [76]-[77]). I disagree. In my view, there is no principled basis upon which a medical assessor (or review panel) could discount the weight to be given to an opinion expressed in a medico-legal report on the basis that, relevantly here, the medico-legal expert had failed to comply with cl 1.41 of the Guidelines, when those guidelines simply do not apply to that medico-legal expert's assessment.
For the above reasons, I would uphold ground 3 of the summons. The review panel misconstrued the MAC Act and misdirected itself: the review panel failed to address the central question arising (viz., the medical dispute referred to it) on the material properly before it, and to carry out their statutory function of conducting a new assessment: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) (2011) 282 ALR 24; [2011] FCA 757 at [101]-[103].
To signpost another issue: the insurer argued, in essence, that although this was a question for resolution by the review panel, it did not answer the statutory task of assessing permanent impairment caused by the accident. Put simply, therefore, the insurer submitted that confining the causation question to the opinions of the accident reconstruction experts, evidenced a fundamental misunderstanding of the statutory function of the review panel.
Having identified the issue in the way that it did (review panel reasons at [39]), the review panel then undertook some analysis of the evidence of the accident reconstruction experts (review panel reasons at [40]-[49]). Following its consideration of that evidence, the review panel made a finding: that it accepted the evidence of the first defendant's accident reconstruction expert "that the nature of the damage is consistent with the front to rear collision between the vehicles depicted in the photographs" (review panel reasons at [50]).
The review panel then set out its "[c]onclusion" (review panel reasons at [51]-[52]):
51. Accordingly, the insurer has failed to persuade the panel that the evidence upon which it relies establishes on the balance of probabilities that the forces involved in the accident were insufficient to cause the injuries which the [first defendant] alleges he suffered in the motor vehicle accident.
52. If (sic) therefore follows from these Reasons and the Reasons included in the Report and Directions of the panel of 6 September 2022, that the Certificate of Assessor Dr Shahzad of 17 March 2022 should be confirmed.
To signpost a further issue: the insurer argued that the review panel's reasons at [51] demonstrate that the review panel reversed the onus of proof on the question of causation.
I will now specifically address the insurer's arguments.
It follows, therefore, that the review panel, by this misdirection, misstated the correct legal test and thus committed an error of law on the face of the record. I would uphold this ground of review.
It follows, therefore, that the review panel also fell into legal error in failing to conform to, and apply, the statutory requirements - being, ss 58(1)(d) and 131 of the MAC Act - and thus committed an error of law on the face of the record. It also may be said to establish jurisdictional error: the review panel misunderstood the statutory requirement governing the exercise of the assessment it was required to conduct: McGiffen at [52]. I would also uphold this ground of review (ground 2(b) of the summons).
The insurer's third causation argument - which overlaps with the second argument - was that the review panel "fell further into error in failing to make findings in relation to causation of injury, as required by clauses 1.5 - 1.7 of the guidelines": the insurer submitted that, having considered the accident reconstruction expert evidence, the review panel failed to make any findings about how those reports "affect the issue of causation" (insurer's submissions at [63]).
In my view, given the findings that I have made about the erroneous approach by the review panel in connection with the second argument, and the fact that the review panel erroneously confined its task to that single issue, it is unnecessary to separately address this ground of review. Although I have concluded that the review panel failed to conform to, and apply, the statutory requirements referred to in [89], above (Rodger at [17] and McGiffen at [55]), there remains a doubt as to whether the third causation argument advanced by the insurer provides a separate basis (from the second argument) for concluding that the review panel fell into error: see in this respect Rodger at [15]-[20]; McGiffen at [57]. In the circumstances, as I have outlined them, it is unnecessary to address this ground further.
Three matters should be noted about the "new assessment" required by s 63(3A). First, the reference, in s 63(3A), to "the matters with which the medical assessment is concerned", is a reference to the "medical assessment matters" in s 58(1) of the MAC Act. Relevantly here, the medical assessment matter was "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%": s 58(1)(d) of the MAC Act. Secondly, the terms of s 63(3A) make plain that the review by a review panel is not one limited to a review of that aspect of the medical assessment alleged to be incorrect for the purposes of s 63(2B), but is to be a "new assessment". The submissions of the insurer adopted slightly different language - a requirement to conduct an assessment "afresh" or a "de novo" assessment. To the extent that the submissions employed those different expressions so as to pick up the expression in s 63(3A) "new assessment", then (aside from the undesirability of departing from the statutory language) the submission is unexceptional, and may be accepted. Thirdly, and overlapping with the second matter noted, although the review is by way of "new assessment of all the matters with which the medical assessment is concerned" (and is not by way of correcting the asserted errors), the review panel "can review the errors said to exist in the assessment that gave rise to the application for review": Allianz Australia Insurance Ltd v Rutland (2015) 73 MVR 211; [2015] NSWCA 328 at [18] ('Rutland').
In my view, given that the insurer did not ultimately challenge that there was any error in connection with the decision of the review panel to not require the first defendant to be re-examined, the materiality of this finding is, in my view, limited. Nevertheless, I accept, as the insurer submitted, it does appropriately identify the starting point of where the approach of the review panel, in connection with the issue of causation, commenced to miscarry. Nevertheless, the point is covered, in my view, by ground 1(a) and grounds 2(a) and (b). Again, my resolution of those grounds deals with this submission
Thirdly, and following on from the above, much of the insurer's written submissions were directed to the review panel's decision not to conduct a re-examination of the first defendant. That decision was argued to demonstrate error, or at least illustrate it. The insurer submitted the review panel posed the question: "whether the insurer had satisfied the panel, on the basis of its submissions as to the errors in the Assessor's decision, that a re-examination should be conducted", rather than the review panel correctly, and simply, directing itself: "whether a re-examination of the claimant was required" (insurer's submissions at [45]). Ultimately, however, the insurer accepted that the decision of the review panel in this respect was essentially open to it, and no complaint of error was directed to that aspect of the review panel's decision. Given that no error was relied upon, the insurer ultimately accepted that it could not - and did not - illustrate what was otherwise argued to be the review panel's erroneous approach to conducting a new assessment.
This ground of review is therefore made out, but only in ways that I have identified - namely, those that overlap with the earlier grounds of review.