Kerr v Insurance Australia Limited [2019] NSWSC 133 | Case summary

Kerr v Insurance Australia Limited [2019] NSWSC 133 | Case summary | Zoe

[2]

Leave to extend time

By notice of motion filed 30 August 2018, the plaintiff seeks an order pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") that this Court extend the time for commencing these proceedings to 27 March 2018. The insurer submitted that the plaintiff requires leave pursuant to r 59.10(2), as the summons with respect to the proper officer's decision dated 15 November 2017 was required to be filed no later than 15 February 2018. The plaintiff's summons was filed on 27 March 2018, and was therefore six weeks out of time.
UCPR 59.10 reads: "59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required."
This issue was raised by the insurer in response to the plaintiff's claim. It says that the plaintiff requires the formal leave of this Court (upon a motion and supporting affidavit) to conduct her challenge to the two decisions under review pursuant r 59.10(2) UCPR.
The insurer submitted that the proceedings cannot continue without such leave. No reason for the delay of six weeks has been proffered by the plaintiff, and therefore the Court should not grant leave to extend time for the filing of the summons. Accordingly, the proceedings should be dismissed. The insurer has conceded that it has not suffered prejudice.
The insurer does not take any issue with the plaintiff seeking to exhaust her internal review right before approaching this Court seeking judicial review.
Although the decision of the proper officer was made on 15 November 2019, it was not sent to the plaintiff's solicitors, nor did they receive it, until 15 January 2018. About two months elapsed from the date of the decision until it was received by the plaintiff's solicitors. The plaintiff, by exercising reasonable diligence, could only have become aware of the decision when it was received, and I agree that this oversight caused significant delay. The insurer has not suffered any prejudice. Taking these circumstances into account and in the exercise of my discretion, I grant an extension of time to commence these proceedings to 27 March 2018.

[6]

Dr Keller's report dated 13 March 2017

In his report under the heading "History of Presenting Complaint", Dr Keller noted (JC2, 229): "Ms Kerr reports that on 23 July 2016 she was the front left passenger of a taxi, wearing a seatbelt, when another car entered from a side road and struck the driver's side of her vehicle. Airbags were deployed. She reports no head injury or loss of consciousness but was trapped in the car by her seatbelt and was unable to stand and walk at the scene. She had immediate pain in her chest, her lower back and her right leg. …"
Dr Keller further noted (JC2, 232): "• Your diagnosis and prognosis The diagnosis is of two sternal fractures, a right first rib fracture and soft tissues strains to the cervical and lumbar spine. There is no prospect for a full recovery though it is likely that Ms Kerr had pre-existing restrictions with regard to her neck, shoulders and back, and that these would have been progressive in the absence of the accident due to her advanced age. The relationship of the injuries to the motor vehicle accident 1. Are the reported injuries/symptoms consistent with the description of the motor vehicle accident? There is evidence that Ms Kerr suffered significant injuries as a result of the subject accident in July 2016. She had sternal fractures and a rib fracture. She is likely to have had soft tissue strains to the neck and lower back consistent with the motor vehicle accident. …"
When considering WPI, Dr Keller made the following assessment (JC2, 239): Body part or system Date of injury AMA Guides/MAA Guidelines Reference (chapter/page/table) Stabilised (YES/NO) Current %WPI* %WPI* from pre-existing OR subsequent causes %WPI* due to motor accident Lumbar spine 23 July 2016 Cha.3, p110 (AMA4) Yes 5% 50% 2.5% Total %WPI (the Combined Tables Values of all sub-total/s) 5%

[9]

The decision of the MAS dated 9 September 2017

On 5 September 2017, the MAS examined the plaintiff.
Under the heading "List of Injuries to be Assessed", the MAS included (JC3, 243): "5. Lumbar spine - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. … 9. Right knee - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. .."
Under the heading "History Given by the Injured Person", the MAS recorded the plaintiff's current symptoms as follows (JC3, 244-245): "Current symptoms Mrs Kerr said that she was fed up with her current limitations. Her mobility is limited due to the pain from her right ankle. She also said there was limited movement at her shoulders. There is also some pain from her sternum and neck. Also mentioned were eye problems."
Under the heading "Findings on Clinical Examination", the MAS recorded, "At the lumbosacral spine there was mildly and symmetrically reduced range of motion without muscle spasm or guarding and no radicular symptoms….The range of motion at both knees was 0 to 120 degrees. Both knees were stable and without crepitus" (JC3, 244-245).
Under the heading "Review of Documentation", the MAS noted the report of Dr Keller (JC3, 245): "This is a medicolegal orthopaedic surgeon's report and it is dated 13 March 2017. He provided an evaluation of whole person impairment."
Under the heading "Diagnosis and Causation", the MAS stated (JC3, 245): "In the motor vehicle crash on 23 July 2016 Mrs Kerr sustained a fractured sternum and a rib fracture with soft tissue injury. Based on the mechanism of the injury she probably sustained also an injury to her cervical spine (and possibly shoulders) and there was a definite soft tissue injury at the right ankle and foot. Other injuries are not clearly defined."
The MAS then provided a summary of injuries listed by the parties and caused and not caused by the accident.
With regards to the summary of injuries listed by the parties and not caused by the accident, the MAS concluded (JC3, 246): "The following injuries WERE NOT caused by the motor accident: … • Lumbar spine - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. … • Right knee - soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes."
As previously stated, the MAS determined that the plaintiff had a WPI of 10% and issued a certificate to that effect.
I now turn to consider the grounds of judicial review raised by the plaintiff.

[13]

Plaintiff's submissions

In relation to ground 3, the plaintiff submitted that the MAS found, as a matter of fact, that there was no evidence that the accident had caused an injury to the plaintiff's lumbar spine and right knee. However, there was evidence before the MAS that the plaintiff sustained injuries to her lumbar spine and right knee. This included the clinical records from Liverpool hospital and the report of Dr Keller where the plaintiff complained of pain in the lumbar spine immediately after the accident. There was also evidence that the plaintiff had sustained a lumbar spine injury in the accident.
That the MAS failed to respond to an argument, based on evidence, that the accident had caused the plaintiff to sustain an injury to her lumbar spine and right knee, is established by the MAS's erroneous comment that there was "no evidence of a specific injury to the four regions", in combination with the MAS's comment that the injuries to those regions were not clearly defined (JC3, 245-246).
Jurisdictional error includes instances where an administrative tribunal falls into an error of law which causes it to make an erroneous finding or to reach a mistaken conclusion. In the present proceedings, the MAS erroneously found that there was no evidence of a specific injury being caused to the lumbar spine. Such an erroneous finding constitutes a jurisdictional error.
Ground 4 follows on from the above submission. The plaintiff submitted that the MAS's conclusion that there was no evidence in relation to either the lumbar spine or right knee was so unreasonable that no reasonable decision maker could have reached that conclusion.
Put another way, the test for Wednesbury unreasonableness requires demonstration that a decision is "illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds": see Rodger v De Gelder (2011) 80 NSWLR 594 ("De Gelder (2011)") per Beazley JA at [98]. The plaintiff submitted that the MAS's conclusion that there was no evidence of injuries to the lumbar spine or right knee meets this test, because there was in fact evidence in the form of the Liverpool Hospital notes and Dr Keller's report.

[14]

The insurer's submissions

In relation to ground 3, the insurer submitted that it was open to the MAS to find that there was no evidence of a specific injury to the lumbar spine or right knee.
In his certificate and reasons dated 9 September 2017, the MAS noted the following: 1. The major recorded injuries at Liverpool Hospital were a fractured sternum and fractured first right rib (JC2, 243); 2. During the examination on 5 September 2017, the plaintiff complained of pain in her right ankle, limited movement at her shoulders, and some pain from her sternum and neck (JC2, 244); 3. The certificate completed by the plaintiff's treating doctor at Liverpool Hospital said there was a rib fracture and sternal fracture (JC2, 245); 4. The discharge summary from Liverpool Hospital listed the injuries as a sternal fracture and right first rib fracture (JC2, 245); 5. A report of Dr Carpio, dated 29 August 2016, makes no reference to a back or right knee injury (JC2, 245); 6. A report from Dr Harris, dated 4 August 2016, commented on the right ankle (Aff, Kerr 21 August 2018, Annexure JC2, 245); and 7. The report of Dr Keller, assessing the plaintiff on behalf of the first defendant (Aff, Kerr 21 August 2018, Annexure JC2, 245).
The plaintiff can only identify three references to her back in any of the material that was before the MAS. They are: 1. The case history notes of the Emergency Department of Liverpool Hospital (JC2, 38). The plaintiff appears to rely on a reference on page 1 of these notes, which contains the word "Back" under the heading "Secondary". However, this must be read in context of the document in which it appears. It reads: "Secondary Head & neck-NAD, no midline spinal tenderness Chest - Bruising over the upper sternum & Right mid anterior chest wall with underlying rib tenderness ++ Abdomen & Pelvis - NAD Lower Limbs - Tender swelling over the Lateral malleolus of the Right ankle Back - " The reference to "Back", when read in context, is just part of a listing of various body parts, some of which have secondary injuries and some of which have "NAD" (No Abnormality Detected). The mere reference to "Back" in this context, without any description of any injury or problem, is not evidence of an injury to the back caused by the motor accident; 1. The progress notes of Liverpool Hospital dated 25 July 2016. Counsel for the insurer assumed that this is a reference to the handwritten notes that state "Back - Bruise L post lower ribs, no midline tenderness" (JC2, 146). This is not evidence of any back injury caused by the motor accident; and 2. The report of Dr Keller dated 13 March 2017 (JC2, 228). This report was prepared almost eight months after the accident, and by its very nature cannot constitute contemporaneous evidence of any back injury caused by the accident. All it establishes is that at that time, the plaintiff reported that she had sustained an injury to her lower back in the accident. The insurer submitted that firstly, the plaintiff did not report an injury to her lower back during her consultation with the MAS; secondly, the MAS plainly had regard to the report of Dr Keller (as he specifically referred to it in his report); and thirdly, the MAS was not bound to accept the plaintiff's retrospective reporting to Dr Keller as being evidence of a lower back injury caused by the accident.
The only evidence that the plaintiff relied on to support an alleged injury to the right knee is the report of Dr Keller.
The MAS ultimately found that "other injuries" (other than injuries to the cervical spine, shoulders, right ankle and foot) were not clearly defined. This clinical finding was open to the MAS on the evidence before him.
In relation to ground 4, the insurer submitted that the MAS's findings regarding the lumbar spine and right knee are not affected by legal unreasonableness. For the same reasons submitted in relation to ground 3, the MAS's conclusion of no evidence was open to him on the available evidence.

[15]

Consideration

These grounds of judicial review focus on there being no evidence of injury to the plaintiff's lumbar spine and right knee. However, the first sentence of the plaintiff's submissions addresses there being no evidence as to causation of the injuries to the plaintiff's lumbar spine and right knee. This submission does not accord with the stated ground of judicial review. In any event, the argument involving causation is dealt with under the next ground of judicial review.
A finding of fact for which there is no evidence is an error of law: see Clinton McGiffen v AAI Limited t/as GIO, as agent for Nominal Defendant [2015] NSWSC 1530 ("McGiffen") per Rothman J at [51].
The MAS's role is to assess the permanent impairment of the plaintiff's right knee and lumbar spine as at the date of assessment. Upon clinical examination of the plaintiff on the day of the assessment, the MAS recorded that at the lumbosacral spine, there was mildly and symmetrically reduced range of motion without muscle spasm or guarding, and no radicular symptoms. The range of motion of both knees was 0 to 120 degrees. Both knees were stable and without crepitus. There was scant reference to the injury to the right knee in the clinical notes, as well as three references to the plaintiff's back without any description of injury, which is not evidence of an injury.
Dr Keller's records show that the plaintiff reported that she had immediate pain in her lower back and her right leg. She also told Dr Keller that in 2014 she suffered a right knee and left ankle injury. On examination, the lumbar spine was normal. There was general restriction of motion in the hips, knees and ankles that was age appropriate and contributed to by her previous injuries, with no evidence of any acute injuries following the motor vehicle accident that exacerbate the pathology in the lower limbs. Dr Keller opined that the plaintiff was likely to have soft tissue strains to the lower back consistent with the motor vehicle accident. He assessed a WPI of 2.5% in relation to her lumbar spine.
Under the heading "Diagnosis and Causation", the MAS stated that the plaintiff sustained a fractured sternum and a rib fracture with soft tissue injury. Based on the mechanism of the injury, she probably also sustained an injury to her cervical spine (and possibly shoulders), and there was a definite soft tissue injury at the right ankle and foot. The section concludes, "Other injuries are not clearly defined".
In respect of the right knee injury, the MAS specifically noted that the records from Liverpool hospital included "investigations". An x-ray of the right knee falls into that category. Furthermore, the MAS's conclusion was that there was no evidence of a "specific" injury to the right knee. The x-ray of the right knee was reported as showing "[n]o obvious fractures seen. Alignment is maintained. There is degenerative change of the knee joint noted. No significant joint effusion." This is not inconsistent with the MAS's findings of no specific injury.
The MAS was not obliged to accept Dr Keller's report or the Liverpool hospital notes as being evidence of injury to the lower back and right knee that resulted in a WPI at the time of the assessment. The MAS stated that the injuries to the lumbar spine and right knee were not clearly defined. In my view, it was open to the MAS, after conducting a clinical examination of the plaintiff and using his medical experience and knowledge, to find that there was no evidence of causation for the injuries to the lumbar spine and right knee To read the decision of the MAS in the way the plaintiff submitted is to read the reasons of the decision maker "with an eye finely tuned for error": see McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing); Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 per Preston CJ at [67] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291. As the MAS made findings that the plaintiff's injury to her lumbar spine and right knee were not clearly defined, it follows that the MAS did not assess any WPI in relation to these injuries. The decision was not erroneous and did not constitute a jurisdictional error.
This ground of judicial review fails.

[16]

Ground 4 - legal unreasonableness

In relation to legal unreasonableness, a decision that is legally unreasonable may give rise to jurisdictional error, either because the unreasonable outcome is indicative of underlying procedural error, or because there is no evidence and intelligible justification for the outcome: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ("Li") at [76], Minister for Immigration and Border Protection v Singh & Anor (2014) 231 FCR 437; and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.
In Li at [75]-[76] the High Court stated: "In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that "guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion". House v R holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent. As to the inferences that may be drawn by an appellate court, it was said in House v R that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification." (Citations omitted.)
In order for this Court to find an error on the basis of legal unreasonableness, it must be satisfied that the decision is unreasonable or plainly unjust, or that the decision lacks an evident and intelligible justification. As I have previously stated, the MAS was not obliged to accept the vague references to these injuries when it comes to assessing the injury to the plaintiff's right knee. To make his findings in relation to assessing the lumbar spine and right knee, the MAS relied on his clinical examination and the relevant material before him, together with his medical knowledge and experience. His findings are not plainly unjust, nor lacking an evident and intelligible justification.
Accordingly, judicial review grounds 3 and 4 fail.

[19]

Plaintiff's submissions

The plaintiff submitted that the MAS failed to respond to an evidence-based argument that the motor vehicle accident had caused the plaintiff to sustain an injury to her lumbar spine and right knee.
The plaintiff reported to Dr Keller that immediately after the accident, she experienced pain in her chest, lower back and right leg. The plaintiff also reported to Dr Keller that she continued to receive physiotherapy for problems with her right arm, right leg and lower back three times per week. On the basis of the information before him, Dr Keller concluded that the accident caused the plaintiff to sustain two sternal fractures, a right first rib fracture and soft tissue strains to the cervical and lumbar spine. In addition to Dr Keller's report, the MAS also had the clinical records of Liverpool Hospital, which contained references to the plaintiff's back.
The plaintiff referred to Part 6 of her application for assessment, where she alleged that the motor vehicle accident had caused her to sustain a number of injuries, including soft tissue injuries to her lumbar spine and right knee. This allegation was based on evidence, specifically Dr Keller's opinion and the clinical records of Liverpool Hospital. It was necessary for the MAS to engage with this evidence as part of his obligation to respond to this argument. The plaintiff submitted that the MAS failed to do so, and therefore failed to exercise his jurisdiction: Ali v AAMI Limited [2016] NSWCA 110 per Basten JA (with Leeming and Simpson JJA agreeing) at [66]. The MAS's failure to respond to the plaintiff's argument further amounted to a failure to accord procedural fairness, which is a recognised form of jurisdictional error: see De Gelder (2011) at [94] and Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 ("Kirk") at [60].
The plaintiff also submitted that the MAS's failure to respond to the plaintiff's evidence-based argument is further established by his erroneous comment that there was "no evidence of a specific injury to the four regions", together with his comment that the injuries to those regions were not "clearly defined". In relation to the lumbar spine, had the MAS considered the opinion of Dr Keller concerning causation of the lumbar spine injury, it is reasonable to infer that he would not have made the comment that there was "no evidence of a specific injury" to the lumbar spine. Similarly, had the MAS considered the evidence concerning causation of the right knee, the x-ray of the right knee from 26 July 2016 and the claim form in which the plaintiff indicated her right knee was injured, he would not have commented there was "no evidence".

[20]

The insurer's submissions

The insurer submitted that the findings of the MAS were open to him, and therefore no error has been established.
The insurer submitted that the plaintiff did not make a substantial and clearly-articulated argument to the MAS. The plaintiff was entitled to make an argument to the MAS in the form of written submissions annexed to the MAS Form 2A, but did not do so. She provided no submissions, statement, or medico-legal evidence. The only thing the plaintiff did include was an extensive list of injuries to be assessed. The lumbar spine and right knee injury were two of thirteen alleged injuries. No submissions were made regarding causation of any of the injuries.
The insurer submitted that there was no obligation to consider every piece of evidence presented, let alone engage with it: see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 ("Cervantes") per Basten JA at [22]. Nor does any evidence constitute a "relevant consideration".
The insurer referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 ("Yusuf"), where McHugh, Gummow and Hayne JJ (with Gleeson CJ agreeing) stated at [74]: "…What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the decision making process of making particular findings of fact upon which the decision-maker acts."
The insurer relied upon Rodger v De Gelder [2015] NSWCA 211 ("De Gelder [2015]"), where Gleeson JA (McFarlan and Leeming JJA agreeing) stated at [84] - [86]: "84. It is well established that reference to a "relevant consideration" in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Peko Wallsend at 39; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 (Cervantes) at [15] (Basten JA; McColl and Macfarlan JJA agreeing). 85. As Basten JA explained in Cervantes at [15], this ground required the respondent, Mr De Gelder, to identify the legal obligation on which he relied to identify what were mandatory factors to be taken into account for the purposes of the Panel's decision. The identification of relevant and irrelevant considerations is to be drawn from the state empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider: Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [195] (Gummow and Hayne JJ). 86. It seems that this did not occur before the primary judge. This remained the position in this Court. Although Mr Rodger contended that the Permanent Impairment Guidelines were delegated legislation and Mr De Gelder did not submit to the contrary, neither party identified any mandatory considerations the Panel was bound to take into account. Both parties proceeded on appeal on the same basis as they did before the primary judge - that relevant material was the same as a relevant consideration in the sense described in Peko-Wallsend. This approach, which his Honour adopted, was erroneous. The error, as Basten JA said in Cervantes at [15], is that "to describe evidence as 'relevant' to the case of one party is not to identify a 'relevant consideration' for judicial review purposes."
The insurer submitted that the exception to the general rule that a decision maker does not have to consider and/or refer to every piece of evidence occurs where the party has advanced "a substantial and clearly articulated argument relying on established facts", and the decision maker fails to respond to that argument, it may constitute jurisdictional error; see Cervantes at 19 and De Gelder [2015] at [89] - [96]. In this case, the plaintiff did not make a substantial and clearly-articulated argument based on established facts. The plaintiff is now seeking to rely upon the report of Dr Keller, which is evidence that she failed to provide in her application form. Rather, the insurer provided it to the MAS. Accordingly, there was no exception to the general rule. There was no "substantial argument" to which the MAS had to respond.
In any event, the MAS did have regard to the evidence that the plaintiff relied upon to support her case. The MAS specifically referred to the evidence under the heading, "Summary of Relevant Documentation". It cannot fairly or reasonably be said that the MAS failed to consider or engage with the evidence, when the MAS specifically referred to it. He was not required to give any particular weight to it, and how much to give was a matter for him to decide: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 ("Wingfoot") at [47]. The MAS was not bound to engage with the evidence in any greater fashion than he did, and he was not required to agree with the opinions therein.
In respect of the plaintiff's submission that the MAS could not have found there was no evidence of injury to the lumbar spine had he considered Dr Keller's opinion, the insurer submitted that Dr Keller was merely a medico-legal specialist who assessed the plaintiff eight months after the accident. His report was not contemporaneous with the accident, and he was in no better position than the MAS to form an opinion in relation to causation of injuries. The MAS was not required to have regard to or to agree with Dr Keller's opinion in relation to the causation of the lumbar spine.

[21]

Consideration

The submissions as to ground 1 of judicial review appear to reply on two primary issues. They are, firstly, whether the MAS failed to address the alleged injuries to the lumbar spine and right knee; and secondly, whether the MAS failed to engage with the available evidence as to causation of these injuries.
A failure to respond to an argument can amount to a failure to accord procedural fairness. This is a recognised form of jurisdictional error: see De Gelder [2015] at [94] and Kirk at [60].
As to the first issue, the plaintiff had the opportunity to establish the facts concerning her alleged injuries to the lumbar spine and the right knee in her application for assessment, by way of written submissions, together with medico-legal evidence. However, the plaintiff's application did not contain any submissions or medico-legal evidence. Rather, she presented with 191 pages of clinical records with no index or submissions. At best, the plaintiff provided a list of thirteen injuries that she sought to be assessed, and the MAS assessed the WPI for 10 of them. In my view, in these circumstances, the MAS did not fail to respond to the plaintiff's articulated argument in relation to the plaintiff's lumbar spine and right knee, as there was none. In any event, the MAS did provide reasons as to how he determined a WPI of 0% in relation to the lumbar spine and right knee, as explained under the previous ground of judicial review.
The second issue is the MAS's alleged failure to engage with the evidence on causation of these injuries to the plaintiff's lumbar spine and right knee. The MAS recorded that the plaintiff did not complain about the injuries to the lumbar spine and right knee in the history she provided to him. He made findings that these injuries were not clearly defined, and that there was no evidence of these specific injuries. The MAS considered that at the time of assessment, there were no permanent injuries to the lumbar spine and right knee. The MAS did engage with the evidence on causation, as he addressed the mechanism of injuries, the lack of clear definition of the injuries to the lumbar spine and right knee, and that there was no evidence of specific injuries to the right knee and lower back. He then stated that the soft tissue injuries to the lumbar spine and right knee were not caused by the motor vehicle accident, followed by the explanation that there was no evidence of a specific injury to them.
For these reasons, judicial review ground 1 fails.

[23]

The plaintiff's submissions

The Motor Accidents Authority may issue guidelines, described as Motor Accidents Medical Guidelines, with respect to various matters including "the procedures for referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessment": see Part 3.4 of the MAC Act, s 44(1)(d). These guidelines include Permanent Impairment Guidelines issued 13 July 2007 ("the Guidelines"), which were in application at the time the MAS conducted his assessment. I should add that those guidelines were replaced on 1 June 2018 by the Motor Accident Permanent Impairment Guidelines (Version 1), which apply retrospectively to motor vehicle accidents that occurred between 5 October 1999 and 30 November 2017, including the accident suffered by the plaintiff in these proceedings. The content of the clauses relevant to these proceedings has not materially changed between the two sets of guidelines. For the sake of completeness, where the clause number in the current guideline differs from that considered by the MAS in this case, I have included the current reference.
The plaintiff submitted that the test of causation to be applied by the MAS is set out in cl 1.9 (now 1.7) of the Guidelines. It provides: "1.9 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."
Pursuant to s 5D(1) of the Civil Liability Act 2002 (NSW), it was also necessary for the MAS to consider whether the lumbar spine and right knee injuries would not have occurred but for the accident (referred to as "factual causation").
In a brief passage dealing with the issue of causation, the MAS said that the plaintiff sustained a fractured sternum and a rib fracture with soft tissue injury and that, based on the mechanism of the injury, the plaintiff probably sustained an injury to her cervical spine (and possibly shoulders). The MAS further said that there was a definite soft tissue injury at the right ankle and foot. In relation to the other injuries, including the injuries to the lumbar spine and right knee, the MAS simply said that these injuries were not clearly defined.
The test of causation required the MAS to determine whether there was an injury to the plaintiff's lumbar spine and right knee, and whether those injuries were caused or materially contributed to by the accident. The accident did not have to be a sole cause, as long as it was a contributing cause which was more than negligible.
The MAS did not apply the correct test of causation. Failing to apply the correct test of causation constitutes a constructive failure to exercise jurisdiction, and is therefore a jurisdictional error: see McGiffen. Applying the wrong test of causation is also a jurisdictional error and an error of law on the face of the record: see Craig v South Australia (1995) 184 CLR 163 (24 October 1995) ("Craig"); Yusuf at [82]; and Bugat v Fox (2014) 67 MVR 150.

[27]

Plaintiff's submissions

The plaintiff referred to the High Court of Australia's decision of Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 ("SZGUR"), in which French CJ and Keifel J stated at [9]: "Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision". (Citations omitted.)
The question of the content of the obligation to accord procedural fairness is one of practical justice. The concern of the law is to avoid practical injustice: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR 1; HCA 6 ("Lam") at [37], and Frost v Kourouche (2014) 86 NSWLR 214 ("Frost") at [41]. In McKee v Allianz Australia Insurance Limited [2008] 71 NSWLR 609; NSWCA 163 ("McKee"), Allsop P stated at [8] that procedural fairness would require any and all necessary steps to ensure a fair hearing.
The plaintiff submitted that there was no issue between her and the insurer that she had sustained a soft tissue injury to her lumbar spine. The plaintiff alleged in her application for assessment that the accident had caused her to sustain an injury to her lumbar spine, amongst other injuries. In its reply, the insurer attached a copy of the report of Dr Keller, who opined that the accident had caused the plaintiff to sustain sternal fractures, a rib fracture and soft tissue strains to the neck and lower back. Given this, both the plaintiff and the insurer did not put in issue the causation of her lumbar spine injury.
The plaintiff submitted that the conclusion by the MAS that the accident did not cause an injury to her lumbar spine was a conclusion which obviously would not be open on the known material, which comprises the plaintiff's application for assessment and Dr Keller's opinion. Therefore, the obligation to accord procedural fairness in the present matter required the MAS to put the plaintiff on notice that he was prepared to find that the accident had not caused an injury to her lumbar spine, despite there being no issue between the parties as to causation. The MAS should have called for further submissions and/or evidence relating to the issue of causation of the lumbar spine injury. Taking this step would have ensured a fair hearing and avoided practical injustice.

[28]

The insurer's submissions

The insurer submitted that the MAS was not required by either statute or general law to put the plaintiff on notice that he was prepared to find the accident did not cause the injury to the plaintiff's lumbar spine, irrespective of there being no issue of causation between the parties. This approach would be contrary to the decisions of Wingfoot at [42] as well as Frost at [42]. The same passage that the plaintiff relied upon in SZGUR was relied upon in Frost.
The insurer submitted that a very similar argument was made in Frost to the argument that the plaintiff advances now. In Frost, the review panel made a finding that the WPI was nil, even though the insurer's doctors had found a minimum of 7% WPI. The situation is analogous to the present situation where the plaintiff contends that Dr Keller had found that the lower back injury was causally related, but the MAS found it was not. In Frost, the Court of Appeal per Leeming JA (with Beazley P and Basten JJA agreeing) stated at [34], [41] and [42]: "34 The gravamen of Ms Kourouche's submissions to the primary judge and on appeal was that the evidence before the review panel pointed to a range of expert opinion as to whole person impairment for psychological injury from 7% to 25%. It was said that the possibility that the review panel might form the view, against the totality of that body of professional opinion, that in fact there was nil whole person impairment was "an incredible and wholly unforeseen and unexpected finding" such that procedural fairness required an adjournment, an opportunity to be given to Ms Kourouche to consult her lawyers, and an opportunity to address the panel further. In substance, that submission was accepted by the primary judge. … 41. Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in McKee at [8], Allsop P said that "procedural fairness would require any and all necessary steps to ensure a fair hearing". 42. The materials before the Court do not suggest any practical injustice or absence of a fair hearing. It was perfectly clear that NRMA was contending that Ms Kourouche's claimed psychological conditions did not accord with what was recorded in her social media profile. It was perfectly clear that NRMA submitted that Ms Kourouche's history was false. It was perfectly clear that NRMA submitted that the review panel should certify a psychological impairment of less than 10% such that s 131 would apply. And it was perfectly clear when the review panel determined to re-examine Ms Kourouche that the possibility that all or some of its members might disbelieve her history was real. This is a not a case where the possibility of the panel's adverse conclusion ought to have taken Ms Kourouche by surprise."
The insurer submitted that it had not made any concessions regarding injuries that were caused by the accident. The entire medical dispute matter pursuant to s 58(1)(d) of the MAC Act was in dispute and was to be assessed.
Even if issues of causation were not in dispute, the MAS would still have been bound to conduct his own assessment as to the entirety of the dispute. In support of this submission, the insurer referred to Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125 ("Mills"), where Giles JA (with Tobias JA and Handley AJA agreeing) stated at [79]: "The submissions face the difficulty that the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) was unequivocally for the medical assessor, including the element of causation. That was accepted in Pham v Shui at [96], and it was correctly so held in Ackling v QBE Insurance (Australia) Ltd at [77]-[79]."
In Wingfoot, the High Court stated that the function of a medical assessor is not to decide disputes between parties. The High Court stated at [47]: "It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinion. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."

[29]

Consideration

A decision of an MAS or review panel of the MAS may be set aside on the basis of a failure to accord procedural fairness to a party: see Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [97] and Frost at [31]. A failure to accord procedural fairness is a form of jurisdictional error.
It is convenient that I make some observations regarding whether causation of the lumbar spine injury was in issue (or not) between the parties. The insurer made no concessions upon this topic. It did, however, attach the report of Dr Keller to their reply to the plaintiff's application for assessment dated 27 June 2017. This report alone does not suggest that causation was not in issue between the parties. While Dr Keller was the insurer's medico-legal expert, this does not mean the insurer adopted every opinion contained in that report. In any event, even if the parties did not consider causation as being in issue, the MAS was nonetheless bound to consider the issue: see Mills at [79]. As the High Court stated in Wingfoot at [47], the MAS's function is "…to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
Here, the MAS formed his own opinion by applying his own medical experience and expertise to determine whether the injuries referred for assessment were or were not caused by the accident. After the MAS conducted a medical examination and took into account the history given by the plaintiff and the other material before him, he decided that at the date of the assessment, the plaintiff had no injuries giving rise to permanent impairment to her right knee or lumbar spine. In my view, the plaintiff has not established an error. In these circumstances, if there were no injuries giving rise to a permanent impairment, and they were not caused by the motor accident, in my view, the plaintiff has not established an error.
I turn now to consider the substance of judicial ground 2, being whether the MAS was required to advise the plaintiff of his adverse conclusion regarding causation of the lumbar spine injury. For such an obligation to arise, the conclusion must not be obviously open on the known material: see SZGUR at [9].
In Frost, the Court of Appeal at [41] stated that the content of the obligation to accord procedural fairness was one of practical justice. In that decision, the Court held that there had been no practical injustice or absence of a fair hearing when a review panel reached an adverse conclusion as to the applicant's WPI. The Court of Appeal considered that it was not a case where the possibility of the panel's adverse conclusion ought to have taken the applicant by surprise.
It is my view that in the present circumstances, the plaintiff could not have been taken by surprise by the MAS's findings in relation to the lumbar spine and right knee. The plaintiff claimed she suffered 13 injuries in her application that were to be assessed. It could not be assumed that the MAS would agree that all these alleged injuries were caused by the accident. Nor can it be said that the MAS was obliged to put the plaintiff on notice of the injuries that he considered were not casually related to the accident.
Accordingly, this ground of judicial review fails.

[35]

The plaintiff's application for a review

On 16 October 2017, the plaintiff lodged an application for a review of the assessment by the Medical Assessment Service under s 63 of the MAC Act. This application only related to the MAS's assessment of the lumbar spine and right knee.
The grounds of assessment were as follows (JC2, 259): "Assessor Cameron found 10% WPI in respect of impairment to the cervical spine, left shoulder, right shoulder and right foot. It is submitted that: a) Assessor Cameron's MAS determination dated 9 September 2017 is incorrect in a material respect. b) The Assessor erred in his assessment of the claimant's injuries not giving rise to a permanent impairment greater than 10%. c) The Assessor failed to assess the claimant's lumbar spine and right knee injuries in accordance with the guidelines. d) Further and/or in the alternative the Assessor failed to assess claimant's lower extremities in accordance with the guidelines. …"
In relation to the assessment of the lumbar spine and right knee, the plaintiff submitted that the MAS incorrectly determined that these injuries were not related to the accident. These injuries should have been taken into account when determining the plaintiff's WPI.
The plaintiff submitted that the MAS was simply incorrect when he stated that "there is no evidence of a specific injury to the four regions listed above". This was also contrary to the evidence before him. The plaintiff stated (JC2, 260): "RIGHT KNEE INJURY 1. Assessor Cameron erroneously omits to mention the contemporaneous evidence of the CTP claim form dated 16 October 2016. The CTP claim form, at page 8, indicates an injury to the 'right knee'. 2. The Discharge Summary from Liverpool Hospital, at page 2, listed under the tertiary survey injuries: 'tenderness to the right knee, no acute fractures on imaging'. 3. It is notable that an X-ray was performed after the accident to investigate the right knee complaints. This is affirmed by the X-ray report (dated 26 July 2016) at page 6 of the Discharge Summary. 4. Further, there are various notes related to the 'knee injury' in the Liverpool Hospital Notes. LUMBAR SPINE INJURY 1. ED Case History notes from Liverpool Hospital, at page 1, listed under the secondary injuries: 'back'. 2. Further, there are various notes related to the 'back pain' in the Liverpool Hospital Notes".
The plaintiff submitted that the injuries to her lumbar spine and right knee were causally related to the subject accident, and that the MAS was incorrect in denying the causal connection between the injuries and the accident. In accordance with the cl 1.8 (now 1.6) of the Guidelines, there are two matters that must be verified when deciding whether a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has in fact done so. The first is whether "the alleged factor could have caused or contributed to a worsening of the impairment, which is a medical determination". The second is whether "the alleged factor did cause or contribute to the worsening of the impairment, which is a non-medical determination". The plaintiff submitted that she sustained both injuries as a result of the subject accident, and that this test for causation has been satisfied, as there was no evidence of a subsequent injury that could have caused it.
The plaintiff also submitted that the MAS failed to comply with the requirements of cl 1.43 (now 1.41) of the Guidelines. This clause prescribes that "where there are inconsistencies between the MAS's clinical findings and information obtained through medical reports and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention": see Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 ("Dominice"). The plaintiff submitted that the direct and key inconsistencies between the MAS's findings and Dr Keller's report in relation to the impairment in the lumbar spine were simply not put to the plaintiff. While the MAS found that the lumbar spine injuries were "NOT caused by the motor accident", Dr Keller assessed the plaintiff's impairment in the lumbar spine at 5% WPI with a subsequent 50% deduction. The MAS did not provide any detailed reasons or explanation as to why his finding was significantly different to that of Dr Keller.
Further and/or in the alternative, the plaintiff submitted that there was a failure to properly apply the Guidelines and WPI in relation to the plaintiff's gait derangement. The MAS should have applied table 36 of American Medical Association Guideline 4, as indicated under table 3.4 (now 6) of the Guidelines, when assessing lower extremities. The plaintiff is dependent on assistive devices, specifically a walking frame, and this is necessary and permanent. The MAS should have assessed the plaintiff using estimates related to gait disturbance. According to the Guidelines, the applicable impairment rating is 20% WPI.

[36]

The insurer's reply

On 31 October 2017, the insurer lodged a reply together with submissions. In relation to the MAS's assessment of the lumbar spine and right knee injuries, the insurer submitted that the MAS did not make an error. While the plaintiff made reference to "tenderness in the right knee" in the Discharge Summary, the insurer said that this was not evidence of a specific injury to the right knee, as the x-ray revealed no abnormalities. Rather, this supported the MAS's view that there was no evidence of a specific injury to the right knee. In addition, the insurer submitted that based on the MAS's clinical findings for the right knee, no WPI would be attributed even if the injury was related to the accident. Accordingly, there would be no change in overall WPI. The insurer also submitted that there is a lack of evidence highlighting a specific injury to the lumbar spine. Based on the MAS's clinical findings, even if the lumbar spine injury was attributed to the accident, no WPI would be added to the current total.
According to the insurer, the plaintiff was incorrect in her assertion that the MAS failed to comply with cl 1.43 (now 1.41) by not putting the difference of opinion between himself and Dr Keller to the plaintiff. It is not the purpose of this clause to put a difference of a medical opinion between two doctors to the plaintiff. The clause exists to address inconsistencies demonstrated by the plaintiff between two examinations, or between the plaintiff's presentation and the available medical evidence. The plaintiff was consistent in her history and examination to both the MAS and Dr Keller. There were no inconsistencies that required clarification.
While the plaintiff made submissions that the MAS had failed to properly apply the Guidelines and WPI in relation to gait derangement, the insurer says that the MAS correctly applied the Guidelines by choosing to utilise the most appropriate evaluation method. This is consistent with cl 3.11 (now 1.78) of the Guidelines, which relevantly provides: "Assessment of impairment based on gait derangement should be used as a method of last resort (pp 75-76 AMA 4 Guides). Methods most specific to the nature of the disorder should always be used in preference. If gait derangement is used it cannot be combined with any other impairment evaluation in the lower extremity. It can only be used if no other valid method is applicable and reasons why it is chosen should be provided in the impairment evaluation report."

[38]

The review

On 15 November 2017, Sarah Kallipolitis (the proper officer) conducted the review of the MAS's certificate and provided a statement of reasons. She dismissed the plaintiff's application for review.
The proper officer identified three main issues in dispute at [5]. These were, firstly, the causation of the right knee and lumbar spine injuries; secondly, the application of cl 1.43 (now 1.41) of the Guidelines; and finally, the assessment of the gait derangement. It is noted that there was no clear and articulated argument before the MAS concerning any of these issues.
The proper officer stated at [6] - [17] of her reasons: "Causation of the right knee and lumbar spine injuries 6. Assessor Cameron found that there was no evidence of a specific injury to either the lumbar spine or right knee. For this reason, he found that no injuries were caused to these areas by the subject accident. 7. The applicant disagrees, with the Assessor's reasoning and submits there is evidence of injuries to both regions. In support of this submission, they refer to the CTP claim form, the Liverpool Hospital notes and an x-ray of the right knee. 8. The test under Section 63(3) of the Act requires that in order for me to refer the matter to a Medical Review Panel I must be satisfied that there is reasonable cause to suspect the assessment is incorrect in a material respect. 9. The Act does not provide a definition or any clarification as to what "incorrect in a material respect" means. However in Meeuwissen v Bowden [2010] NSWCA 253, the Court of Appeal found that cl 16.13 was not consistent with the language of section 63(3) of the Act, and that any alleged error in the assessment that is capable of changing the level of impairment was an error that was not "trivial, insignificant or immaterial". 10. I therefore must ask myself two questions in relation to an application for review. 1. Does the applicant's submission provide reasonable cause to suspect the assessment is incorrect? 2. Is this alleged error in the assessment one that could be considered material? 11. I note the type of medical disputes which can be determined by the Medical Assessment Service are limited to those listed in Section 58 of the Act. In this matter the specific disputes referred to MAS 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%. This is provided for by Section 58(d) of the Act for the purpose of determining an entitlement to damages for non-economic loss. 12. While such an assessment by its nature involves the Assessor to form opinions regarding causation, the Court has held in Allianz Australia Insurance Limited and Serria Girgis and Ors [2011] NSWSC 1424 that it is only the Assessor's decision as to the level of impairment assessed, and as such the entitlement to non-economic loss, which is binding and that the Court or a CARS Assessor is entitled to disagree with the MAS Assessor's findings as to causation of injuries when determining other heads of damages. Particularly, Adams J found at [36]: "If it had been intended by the legislator to provide that a medical assessor's certificate is conclusive evidence of whether an injury was or was not caused by an accident and that such a certificate was binding for all purposes, it would have been easy to say so and it should have been said. It was not. I do not think this was accidental." 13. Having regard to these two decisions, I am of the opinion that the alleged errors regarding causation could only be considered "material" if it meant that the level of impairment assessed would alter from that which has been certified by the Assessor. 14. I note despite ultimately finding that injuries to the right knee and lumbar spine were not causally related to the accident, the Assessor still conducted a full examination of these areas and outlined his findings on pages 3-4 of his certificate. I note the Assessor's examination results exclude the presence of findings which would give rise to any assessable impairment in these areas. 15. With regards to the lumbar spine, the Assessor recorded, "there was mildly and symmetrically reduced range of motion (to 60% normal) without muscle spasm or guarding and no radicular symptoms". Accordingly, as the respondent has highlighted, the claimant has none of the conditions listed in Table 4.1 of the Guidelines for the lumbar spine to be assessed as anything other than 0% WPI. 16. Furthermore, the Assessor's examination findings of both knees note full range of motion and stability without crepitus. This also indicates that there is no impairment in the right knee. 17. Accordingly, even if I was persuaded by the submissions of the applicant that the Assessor should have found the injuries to the lumbar spine and the right knee causally related to the accident, it is apparent that the level of impairment assessed would have remained at 10%. Given that the Assessor's finding as to causation are relevant only to a determination of the level of WPI, which would remain the same even if the Assessor had found the injuries causally related, this alleged error could not possibly be considered to be "material" and these submission fail to satisfy me of the reasonable cause to suspect the assessment is incorrect in a material respect."
The proper officer then addressed the topic of gait derangement. At [21] and [22], she stated: "Assessment of gait derangement 21. The applicant refers to page 4 of Assessor Cameron's certificate, where he records "Mrs Kerr had impaired balance. She walked unsteadily and for longer distances used a wheeled frame." The applicant submits that the use of a walking aid by the claimant is necessary and permanent, therefore the Assessor should have assessed the claimant using estimates related to gait disturbance. 22. Clause 3.11 of the Guidelines states the gait derangement method of assessment, "can only be used if no other method is applicable…". Assessor Cameron was referred the left hip, right ankle and right foot to assess. He examined and assessed all three of these regions using the range of motion method. Therefore, there was another method that was applicable to assessing the lower extremity impairments. While the right ankle range of motion assessment may have led to an assessment of 0% WPI, this does not mean that the method wasn't applicable and gait derangement could be utilised. Accordingly, I am not satisfied that Assessor Cameron should have used this method and I am not satisfied of reasonable cause to suspect the assessment is incorrect in a material respect."
The proper officer dismissed the plaintiff's application for review.
Both parties referred to Meeuwissen, but quoted different paragraphs supporting their submissions. In Meeuwissen, Basten JA (with whom Beazley JA and Sackville AJA agreed) set out the correct approach of the proper officer to s 63(3) at [19]-[25]. It is as follows: "19 First, what must be incorrect in a material respect is "the medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s 63(1). A "medical dispute" is defined to mean "a disagreement or issue to which this Part applies": s 57. The Part applies to a disagreement about one of the matters (referred to as "medical assessment matters") set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error. 20 Secondly, and consistently with the first reason, the phrase "in a material respect" is less precise than "capable of having a material effect on the outcome of the previous assessment", being the language of s 62(1A). While it is true that this subsection was added with effect from 1 October 2008, it is significant that the legislature declined to adopt the same language as existed in s 63(3). Further, although the same amending Act varied s 63, it did not vary s 63(3): see Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW). 21 Thirdly, the power conferred on the proper authority is not discretionary, once the requisite state of satisfaction is achieved. Thus, once satisfied as to the relevant matter, the proper officer "is to" arrange for the application to be referred: s 63(3). 22 Fourthly, the matter as to which the proper officer is to be satisfied, is not that the medical assessment was incorrect in a material respect, but only that "there is reasonable cause to suspect" that it was. This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error. 23 Fifthly, and following from the last point, where there is doubt as to the extent of the power of an administrative officer, the nature of the power itself must be taken into account. The power under s 63 is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred. 24 Finally, the role of the review panel is not limited to a review of "that aspect of the assessment" affected by possible error. Rather, the panel is to reconsider all of the matters in dispute: s 63(3A). This approach no doubt reflects the difficulty in some cases of dividing an assessment of permanent impairment into aliquot parts. More importantly, it may be seen to reflect an intention that a flawed process is to be cured, so that a proper assessment has been made of the whole of the matters in dispute. Application of principles 25 On the approach to statutory construction adopted above, the proper officer clearly misapprehended the scope of the power. She accepted that the impairment which had been ignored was capable of giving rise to a level of permanent impairment greater than the impairments which had been taken into account (potentially increasing the level of impairment from 4% to 10%). Such an omission cannot be dismissed as trivial, insignificant or immaterial. Accordingly, the proper officer was wrong to conclude, on the approach she adopted, that the assessment was not "incorrect in a material respect". The error arose from misconstruction of s 63."

[39]

The plaintiff's submissions

The plaintiff submitted that the proper officer has misconstrued the terms of s 63(3) of the MAC Act, such that her opinion under that section has not been properly formed according to law. This is another form of jurisdictional error committed by the proper officer.
The reasons of the proper officer show that she had regard to the correct test governing the exercise of her function. That test was set out in Meeuwissen. However, the proper officer's reasons demonstrate that she misunderstood the test to be applied and in fact applied the wrong test. What must be incorrect in a material respect is the medical assessment, and not the certificate which results from the assessment.
The matter as to which the proper officer is to be satisfied is not that the medical assessment was incorrect in a material respect, but only that "there is a reasonable cause to suspect" that it was: see Meeuwissen at [22].
The proper officer also referred to Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424 ("Girgis"). Girgis is authority for the proposition that it is only a medical assessor's decision as to the level of permanent impairment which is binding on a court or a claims assessor, not the determination as to causation. The proper officer than erroneously took into account Girgis in forming her opinion that the alleged errors regarding causation could only be considered material if the level of impairment assessed would alter from that certified by the assessor. This approach was wrong in law. The test of materiality concerns incorrectness in "the medical assessment", not the certificate which results from the assessment.
Further, the proper officer's application of the wrong test of materiality is a jurisdictional error. The proper officer asked herself the wrong question on the issue of materiality. In this way, the proper officer fell into jurisdictional error: see Craig at [15].
Judicial review proceedings concerning a proper officer's opinion under s 63(3) of the MAC Act are limited to determining whether the proper officer's opinion has been properly formed according to law: see Buck v Bavone [1976] HCA 24; 135 CLR 110 ("Buck") per Gibbs J at 119; D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [220]; QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442 ("Miller") at [36]. The critical question is "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": see Minister for Immigration and Multicultural Affairs and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 per Gummow and Hayne JJ at [38].

[41]

Consideration

Judicial review proceedings in respect to the determination of a proper officer in s 63 matters has been held to be limited. They "are limited to determining whether the proper officer's opinion has been properly formed according to law": see Miller at [36] and Buck at 118-119.
On 16 October 2017, the plaintiff lodged an application for a review of the MAS's medical assessment. The plaintiff annexed to the application a document setting out the grounds upon which it was said that the assessment was incorrect in a material respect. The first ground raised by the plaintiff concerned the finding of the MAS that there was no evidence of a specific injury to the four regions referred to on page 5 of the MAS's certificate, of which the lumbar spine injury and right knee were two. The second ground alleged that the MAS had applied the wrong test of causation. The plaintiff also alleged that the MAS had failed to apply cl 1.43 (now 1.41) of the Guidelines and had failed to properly apply the Guidelines in assessing the plaintiff's gait derangement.
Section 63(1) of the MAC Act allows a party to a medical dispute to apply to the proper officer of the SIRA to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review. Section 63(2) of the Act requires that application may only be made on the grounds that the assessment was incorrect in a material respect. Pursuant to s 63(3) of the Act, the proper officer is to arrange for any such application to be referred to a panel of at least three medical assessors, but only if the proper officer is satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the submissions.
The proper officer correctly asked herself the correct test as set out in Meeuwissen, namely, do the applicant's submissions provide reasonable cause to suspect the assessment is incorrect, and is this alleged error in the assessment one that could be considered material?
The proper officer stated that she was "of the opinion that the alleged errors regarding causation could only be considered 'material' if it meant that the level of impairment assessed would alter from that which has been certified by the Assessor". As the MAS's certificate is not conclusive evidence of whether any injury was or was not caused by an accident and is not binding, she considered that if the accident has caused the plaintiff's injuries to the lumbar spine as found by the MAS, the claimant did not have the conditions listed in table 4.1 (now 7) of the Guidelines for the lumbar spine to be assessed as anything other than 0% WPI. [15]. Also, so far as the plaintiff's injury to the right knee is concerned, the proper officer stated that the medical assessor's examination findings of both knees noted full range of motion and stability without crepitus, and also indicated that there was no impairment in the right knee [16].
Finally, so far as the MAS's assessment of gait derangement is concerned, the proper officer referred to cl 3.11 (now 1.78) of the Guidelines that states that the gait derangement method of assessment "can only be used if no other method is applicable". She noted that the MAS assessed all three regions, leg hip, right ankle and right foot using the range of motion method (ROM). She determined that while the right ankle range of motion assessment may have led to an assessment of 0% WPI, it did not mean that the method was not applicable so that gait derangement could be utilised. She was not satisfied that the MAS should have used this method. The proper officer was not satisfied that there was reasonable cause to suspect the assessment was incorrect, nor that the alleged errors in the assessment were those that could be considered material. [22].
In my view the proper officer's decision is correct. She did not make a jurisdictional error. This ground of judicial review fails. As the plaintiff's application for judicial review fails, the summons filed 27 March 2018 should be dismissed.

Kerr v Insurance Australia Limited

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (39)