Khanna v Insurance Australia Ltd

Khanna v Insurance Australia Ltd - [2025] NSWSC 33 - NSWSC 2024 case summary — Zoe

[3]

Statutory framework for medical assessment of injuries from motor accidents

Before outlining the Plaintiff's claims in these Supreme Court proceedings, it is necessary to set out in more detail the statutory framework in which the Commission determines disputes about medical assessment matters. The framework has changed from time to time. For accidents occurring before December 2017 (including the Plaintiff's accident) the relevant provisions are as follows.
With the object of providing a mechanism for the just, quick and cheap resolution of medical disputes, Parliament has created the Commission. The statutory framework in which the Commission operates envisages that certain medical disputes are not to be determined by the ordinary processes of the Court but by medical assessment: Frost v Kourouche [2014] NSWCA 39 at [7] (Leeming JA, with whom Beazley P & Basten JA agreed).
The determination of disputes about motor accidents is regulated by Part 3.4 of the MAC Act. Not all motor accident disputes are to be determined by the Commission, but only those specified in s 58(1) which is set out above.
The wording of s 58(1) makes clear that one aspect of each medical assessment matter is whether the relevant injury was "caused by the motor accident". The question of causation is a matter for the medical assessor and, upon review, the Review Panel: Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [61]-[63] (Giles JA, with whom Tobias JA & Handley AJA agreed); AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 at [6] (Leeming JA, with whom Gleeson JA agreed). For example, in Chan the medical assessor found that the motor accident had caused the injury to the claimant's neck but not the injury to his shoulder.
The determination of a medical dispute under s 58(1)(d) of the MAC Act requires an assessment of the degree of permanent impairment of the injured person. Section 133(2) provides: The assessment of the degree of permanent impairment is to be made in accordance with - (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force--the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.
It follows from s 133(2) that much of the detail of the statutory regime's operation with respect to permanent impairment is left to the Guidelines: Frost v Kourouche at [44] (Leeming JA, with whom Beazley P & Basten JA agreed).
Under s 133(2), the AMA4 Guides apply only if there is no relevant Motor Accidents Medical Guidelines. Motor Accidents Medical Guidelines do exist, although their operation is limited. Paragraphs 1.1 and 1.2 of the Motor Accidents Medical Guidelines provide: "1.1 These Motor Accident Permanent Impairment Guidelines 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 Motor Accidents Compensation Act 1999 (NSW) (the Act). 1.2 These Guidelines are based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). However, there are some very significant departures from that document in these Guidelines. A medical assessor undertaking impairment assessments for the purposes of the Act must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed. In particular, chapters 1 and 2 of the AMA4 Guides should be read carefully in conjunction with clauses 1.1 to 1.46 of these Guidelines. Some of the examples in the AMA4 Guides are not valid for the assessment of impairment under the Act. It may be helpful for medical assessors to mark their working copy of the AMA4 Guides with the changes required by these Guidelines."
A departure from the Guidelines will be an error of law: Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [41] (Basten JA).
One of the objects of having the Commission is to make appropriate use of the knowledge and experience of the medical assessors: s 3(g) of the Personal Injury Commission Act 2020 (NSW) (which I will refer to as the "PIC Act"). The President of the Commission may appoint persons to be medical assessors: s 33(1)(b). To be qualified to be appointed as a medical assessor, a person must have the medical qualifications set out in clause 6 of the Personal Injury Commission Regulations 2020 (NSW).
Where a medical assessment matter arising from a motor accident is brought before the Commission, the President allocates it to a medical assessor for determination: s 60(2) of the MAC Act. The medical assessor undertakes an assessment and issues a certificate. A party who is dissatisfied with the certificate may apply to the President to refer the medical dispute to a Review Panel (s 63(1) of the MAC Act), which the President may do (s 63(2B)). The Review Panel must be made up of one member (i.e, a lawyer) and two medical assessors: s 63(3(b)). The medical assessors are selected by the President having regard to the nature of the injuries and any continuing disabilities and the nature of the medical dispute to be considered by the Review Panel: paragraph 49 of Procedural Direction PIC7.
The Review Panel undertakes a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) of the MAC Act. The function of the Victorian Review Panel is to form its own opinion on the medical dispute which has been referred to it based on the expertise of members of the Review Panel. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at 498; [2013] HCA 43 at [47] (French CJ, Crennan, Bell, Gageler & Keane JJ), the High Court said (citations omitted): "The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. 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 opinions. 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."
Wingfoot Australia Partners Pty Ltd v Kocak was a case about the terms of the equivalent Victorian statute, but the description of the function of the Medical Panel applies equally to a Review Panel in New South Wales: Frost v Kourouche at [40] (Leeming JA, with whom Beazley P & Basten JA agreed).
Proceedings before a Review Panel are to be conducted with as little formality and technicality as the proper consideration of the matter permits: s 43(1) of the PIC Act and rule 127(1)(b) of the Personal Injury Commission Rules 2021. A Review Panel may inform itself on any matter in the manner it thinks appropriate and as the proper consideration of the matter permits: s 43(2) of the PIC Act and rule 128(5). It may determine a review solely on the basis of written material: rule 128(2). It may arrange for a medical examination, but it need not: rule 128(3). If a medical examination is required, one or both of the medical assessors on the Review Panel may conduct the examination depending on the circumstances of the case: paragraph 54 of Procedural Direction PIC7. Specifically s 63(3B) of the MAC Act provides: To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.
The question whether a re-examination is required is an evaluative judgment to be made by the Review Panel: Boyce v Allianz Australia Insurance Ltd at [15] (Basten JA).
In performing its function, a Review Panel is required to have regard to the material before it, but only to the extent that it assists it to form its own expert opinion. It is part of the Review Panel function to assess and make sense of verbose, confused and complex matters: Rahman v Insurance Australia Ltd [2022] NSWSC 1079 at [18]-[19] (Basten JA).
The Review Panel must give reasons for its determination: ss 61(9) and 63(6) of the MAC Act. The standard of reasons which is required was addressed in Wingfoot Australia Partners Pty Ltd v Kocak at [55] (French CJ, Crennan, Bell, Gageler & Keane JJ), where the High Court said (citations omitted): "The standard required of a written Statement of Reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The Statement of Reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The Statement of Reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a Statement of Reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a Statement of Reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
Where more than one conclusion is open, the reasons must include some explanation of the Review Panel's preference for one conclusion over another: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] (Basten JA).
Where the process undertaken by a Review Panel is governed by the Guidelines (s 133(2) of the MAC Act), the Guidelines will inform not only an assessment of whether the Review Panel's reasons explain the actual path by which it arrived at its opinion, but also an assessment of whether the Review Panel's reasons are in sufficient detail to enable the Court to see whether the opinion involved an error of law: Richardson bht Richardson v QBE Insurance (Australia) Ltd [2020] NSWSC 366 at [63] (Wright J).
There is no appeal from a Review Panel's medical assessment under the MAC Act. A party who is dissatisfied with the determination must bring proceedings by way of an application for judicial review under s 69 of the Supreme Court Act 1970 (NSW).

[4]

Judicial review

On an application for judicial review, the question is not whether the Review Panel's opinion was right or wrong but whether it was properly formed or vitiated by reviewable error: AAI Ltd t/as AAMI v Chan at [69] (Leeming JA, with whom Gleeson JA agreed).
The grounds of review are limited. In Richardson bht Richardson v QBE Insurance (Australia) Ltd, Wright J said: "[46] The types of grounds of review potentially available in a case such as the present are jurisdictional error and error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot); [2013] HCA 43 at [26]-[27] (French CJ, Crennan, Bell, Gageler and Keane JJ). [47] Jurisdictional error embraces a number of different kinds of error including: (1) failing to exercise a statutory function: Ali v AAI Ltd [2016] NSWCA 110 at [42] (Basten JA); 75 MVR 502 ; (2) identifying a wrong issue or asking a wrong question in a way that affects the exercise of power resulting in the decision-maker exceeding the authority or powers given by the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] (McHugh, Gummow and Hayne JJ); and (3) failing to address a substantial, clearly articulated argument relying on established facts: Raibevu v Minister for Home Affairs [2020] FCAFC 35 at [87] (Perram, Markovic and Charlesworth JJ) citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] and [95]; (2003) 77 ALJR 1088; (2003) 197 ALR 389. [48] A claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (McGiffen) at [45]. [49] On the other hand, a claim for relief based upon an error of law within jurisdiction must identify the error "on the face of the record": McGiffen at [69]."
See also Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [9] (Basten JA, with whom McColl & Macfarlan JJA agreed).
The party seeking judicial review of the Review Panel's determination bears the onus of establishing that a reviewable error has been made: Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [15] (Macfarlan JA).
For the purposes of error of law on the face of the record, the record includes the Review Panel's reasons: Wingfoot Australia Partners Pty Ltd v Kocak at [27] (French CJ, Crennan, Bell, Gageler & Keane JJ); AAMI v Chan at [29] (Leeming JA, with whom Gleeson JA agreed).
In order for an error on the face of the record to render the decision liable to be set aside, the error must be an error of law. An error of fact, even when it appears on the face of the record, is insufficient: AAI Ltd t/as AAMI v Chan at [47], [66] and [71] (Leeming JA, with whom Gleeson JA agreed).
A finding that a particular medical condition was not caused by the motor accident is a finding of fact. A party who wants to challenge a finding of fact by way of judicial review must demonstrate that there was no evidence to support the finding such that the finding was not open to the decision maker: Rahman v Insurance Australia Ltd at [6]-[7] (Basten JA). If there is some evidence capable of supporting the decision maker's finding of fact, there is no error of law for the purposes of judicial review. At [30], Basten JA said: "The assessor identified, summarised and evaluated such evidence of psychiatric conditions as was presented to him, but found an absence of evidence of a causal link. On the contrary, there was affirmative evidence which was inconsistent with such a causal connection. To say that the finding in its terms was "not open" was to disagree with the evaluation undertaken by the assessor as to what the other psychiatric opinions reflected. That exercise is not available by way of judicial review because it does not demonstrate anything approaching an error of law."
A Review Panel's reasons must be read as a whole, applying a beneficial construction: Allianz Australia Insurance Ltd v Salucci [2023] NSWSC 1593 at [12] (Schmidt AJ). In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291 Kirby J said: "The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect at a verbal slip will be found warranting the inference of an error of law."
As for remedy, an order in the nature of certiorari for an error of law on the face of the record is a discretionary remedy. Amongst other reasons, the Court may refuse relief where granting relief would be futile: Brimelow v Sharpe [2012] NSWCA 345 [33]-[34] (Macfarlan JA, with whom Meagher JA & Tobias AJA agreed).

[6]

Summonses and pleading-like documents - proceedings 2023/305474

On 18 September 2023 the Plaintiff filed a Summons by which proceedings 2023/305474 were commenced. The Insurer is named as the first defendant and has been the active contradictor. Various members of the Commission and medical assessors are named as further defendants. They have all filed submitting appearances.
It is not necessary to set out all the details of the original Summons because it has been overtaken by subsequent documents. For current purposes, the Summons states that the proceedings are brought under ss 65 and 69 of the Supreme Court Act 1970 and Part 59 of the Uniform Civil Procedure Rules 2005 (NSW). The Certificates issued by the Review Panels are specified by file number. They are the three certificates relating to the Plaintiff's alleged diabetes condition, cardiac condition and specific physical injuries. The Certificate relating to the Plaintiff's alleged psychiatric condition is not included in proceedings 2023/305474.
Amongst the eight prayers for relief, the Plaintiff seeks an order "quashing or setting aside the decisions of the Personal Injury Commission". A lengthy list of grounds for judicial review is set out which is reminiscent of the table of contents in an administrative law textbook, reproduced without discrimination or specificity. The grounds of review include "ignoring relevant material", "asking a wrong question", "relying on irrelevant material", "an incorrect interpretation and/or application to the facts of the applicable law in a way that affects the exercise of power", "improper purpose", "bad faith", "acting under dictation", "legal unreasonableness", "no evidence", "uncertainty", "inflexible application of a policy without regard to the individual merits of the application", "manifest irrationality", "illogicality (possibly now a sub-branch of legal unreasonableness)" and "failure to comply with Motor Accident Permanent Impairment Guidelines". No particulars are given in the Summons.
Apart from the original Summons, the Plaintiff has filed other documents which have front sheets on which the document is described as a "Summons" or similar. On the following dates the Plaintiff filed the following distinct documents: 1. 18 September 2023: "Summons" (this is the document referred to above); 2. 18 September 2023: "Summons" (similar but slightly different); 3. 9 November 2023: "Amended Summons"; 4. 18 December 2023: "Further Amended -2- Summons"; 5. 27 December 2023: "Further Further Amended -3- Summons"; 6. 10 January 2024: "Corrigendum to Previously Submitted Documents Dated 27 December 2023"; 7. 21 February 2024: "Corrigendum -2 to Previously Submitted Documents 27 December 2023"; 8. 15 March 2024: "Response"; and 9. 4 May 2024: "Corrigendum".
I do not know whether any of these documents was filed with leave, but the Insurer makes no objection.
The "Further Further Amended -3- Summons" filed on 27 December 2023 is the reference point against which the Plaintiff's case is to be addressed. It is the pinnacle of the incremental evolution of the Plaintiff's case as reflected in the documents which preceded it. The Plaintiff's subsequent documents refer back to it.
The "Further Further Amended -3- Summons" is prolix. It attaches 7 pages of evidence in the form of (mostly) medical records. It is not possible to identify within the 37 pages of the document specific errors said to have been made by any of the Review Panels, although a number of themes are apparent. The themes are summarised in the next section of this judgment.

[11]

Materials in proceedings 2024/80728

On 8 February 2024 the Plaintiff commenced a second set of proceedings against the Insurer, the President of the Commission and the Review Panel which issued the Certificate in relation to the Plaintiff's alleged psychiatric condition. These are proceedings 2024/80728. They have been conducted together with proceedings 2023/305474 and are also the subject of this judgment.
The Plaintiff commenced proceedings 2024/80728 by filing a Summons. The Summons is an entirely unsatisfactory document which is liable to be struck out. It contains twelve pages of closely typed text. It is evidently taken from some form of precedent, populated in places with details of the Plaintiff's case but left unedited in respects critical to identifying and defining the issues in the case. For example, paragraph A[2] under the heading "Grounds for relief" states: "[2]. Unreliable or prejudiced evidence was considered during the assessment. Grounds: Unreliable Evidence [d] Identify instances where the evidence presented by the opposing party was inconsistent, contradictory, or lacked verifiable support. This could include discrepancies in medical reports, witness statements, or any other documentation. a. Example: The medical records submitted by the defendant contained conflicting statements regarding the nature and extent of the claimant's injuries, raising questions about the reliability of the evidence."
No attempt has been made by the Plaintiff to tie this text into the facts in his case, nor any of the other proforma grounds for relief.
The Summons does not identify any basis for a cause of action.
In addition to the Summons in proceedings 2024/80728, the Plaintiff has filed a document called "Response to Defendant Submission dated 8 April 2024". This is a lengthy document, it does not identify any error of law in the Certificate of the relevant Review Panel. On the contrary at paragraph 3(d) the Plaintiff states: "The defendant asserts that the Summons fails to disclose any judicially reviewable error of law in the decision under review. However, it's important to recognize that the absence of a specific error of law in the Summons doesn't negate the possibility of legitimate concerns regarding the decision-making process."
That statement seems accurately to reflect the Plaintiff's material for this part of his case.
The Plaintiff also filed an Affidavit affirmed by his wife on 8 April 2024. The Affidavit conforms to the nature and contents of the Affidavits and witness statements referred to above. The material in it is not generally specific to the Plaintiff's alleged psychiatric injuries but mostly addresses the Plaintiff's medical conditions at large. I have had regard to it in the way described above.
The Plaintiff has filed five documents entitled "Submissions" or "Corrigendum" in proceeding 2024/80728. Most of these seem to relate to proceedings 2023/305474 rather than proceedings 2024/80728. Although the Submissions filed on 20 May 2024 are directed to the Plaintiff's psychiatric claims and the Certificate issued by the relevant Review Panel on 29 November 2023. Apart from disagreement with the result, the Plaintiff does not identify any reviewable error for this particular Certificate other than by the unedited proforma lists of non-specific items.
Very little was said about the Plaintiff's alleged psychiatric condition at the hearing on 30 and 31 July 2024. To the extent that they relate to the psychiatric condition, the Plaintiff's post-hearing submissions are described above.

[13]

Errors made by the original medical assessors

The first theme arises from numerous complaints which the Plaintiff makes about the conduct and decisions of the original medical assessors. The Plaintiff addresses repeatedly and at length a number of deficiencies which he contends are apparent in the work of the four medical assessors.
For example, Dr Herman (who initially assessed the Plaintiff's cardiac condition) is said to have: 1. failed to consider material which was relevant to the Plaintiff's cardiothoracic injury and hypertension; 2. not adequately considered post-accident events and medical procedures; 3. emphasised aspects of the Plaintiff's pre-accident cardiac condition which were not "appropriate"; 4. considered the "ballooning of the [Plaintiff's] stent" and subsequent insertion of three new stents in a way with which the Plaintiff does not agree; 5. "concealed" various matters which the Plaintiff considers to be relevant to his cardiac issues; 6. said that muscoskeletal was outside his expertise; 7. provided insufficient and inadequate reasons; and 8. made numerous other errors.
By way of further example, Dr Carter (who assessed the Plaintiff's diabetes condition) is said to have failed to take into account all the medications which the Plaintiff has commenced to take in the years since the accident.
Numerous other errors are alleged in relation to Dr Herman, Dr Carter and the other two medical assessors who conducted the original assessments. The complaints are scattered throughout the Plaintiff's pleadings, affidavits, submissions (oral and written) and similar documents.
There is no utility in setting out each alleged complaint. The Plaintiff ultimately accepted that he is not seeking a review of any of the Certificates issued by the original medical assessors under s 61(1) of the MAC Act. He is correct to accept that elementary proposition. Now that the original assessments have been reviewed by the Review Panels, the original Certificates no longer apply. The subsequent Certificates of the Review Panels are the real target for the Plaintiff's proceedings in this Court, each of which was issued after the Review Panels had conducted a new, independent assessment. The Plaintiff's continued criticism of the original assessors is irrelevant to the issues before the Court.
The Plaintiff also criticises the Review Panels for adopting the work of the original assessors. Other than mere assertions, the Plaintiff does not explain a basis for this criticism. There is no evidential basis for the criticism. On the contrary, the Review Panels expressly state otherwise in the Directions issued on 10 March 2023 and in their subsequent reasons. Each of the Statements of Reasons issued by the Review Panels demonstrates extensive and independent work. Nothing more needs to be said about this sub-theme of complaint.
Nothing done by the original assessors is capable of constituting reviewable error by the Review Panels.

[15]

Physical examination conducted by the Review Panels

The Plaintiff appears to contend that the Review Panels should not have conducted a physical examination. The Plaintiff submits that rule 128(2) of the Personal Injury Commission Rules 2021 "dictates that the panel's decision should rely exclusively on the written application". The Plaintiff submits that there was a failure to undertake the assessments in accordance with the rules because the Review Panels also relied upon physical examination.
This argument must also be rejected. It is based on a misreading of rule 128(2) and it does not take into account the broader statutory context for review of a medical assessment. Rule 128 includes the following subrules: 128 Conduct of panel review proceedings (1) A panel for panel review proceedings is to conduct and determine the proceedings in accordance with procedures determined by the panel. (2) A panel may determine the proceedings solely on the basis of the written application. (3) A panel may also arrange for the proceedings, including medical examinations for the proceedings, to be conducted-- (a) in person, or (b) by telephone or audiovisual link, or (c) by other means determined by the President to be appropriate in the circumstances. (4) A panel is not bound by the rules of evidence. (5) A panel may inquire into matters that are relevant to the issues in dispute as the panel thinks fit. (6) A determination of the majority of panel members is taken to be the determination of the panel.
Whilst rule 128(2) provides that a Review Panel may determine a review solely on the papers, it does not oblige the Review Panel to do so. Rule 128(3) makes clear that there may also be "medical examinations" by the Review Panel as do other parts of the statutory regime referred to earlier in this judgment.
The Plaintiff further complains about the way the physical examination was carried out on 19 April 2023. A number of specific matters are identified, including: 1. one of the medical assessors who was a member of two of the Review Panels did not attend the examination; 2. "endocrine was not assessed" and the pancreas was not assessed; 3. one of the two medical assessors who conducted the examination did not have qualifications in endocrinology; 4. there are no minutes or transcripts of the examination - that is said to be a "transparency" issue; 5. there were no cameras in the examination room - another transparency issue; 6. one of the medical assessors was "taking naps and attending many telephone calls"; 7. one medical assessor determined the Plaintiff's condition "solely based on blood pressure readings and a stethoscope examination"; and 8. the examination revealed the Plaintiff's inability to walk straight, which the Review Panels "neglected to acknowledge".
There are other matters identified by the Plaintiff which are too minor to mention. For example, the fact that the Plaintiff was not told in advance that one particular medical assessor would not attend the examination.
It will be recalled that each Review Panel was to determine its own procedures (rule 128(1)) and to inform itself as it thought appropriate (rule 128(5)). Section 63(3B) of the MAC Act specifically provided that not all members of a Review Panel need conduct any re-examination. It follows that complaints (1), (3) and (6) are misconceived. Complaint (2) is premised on the assumption that the specific medical matters referred to the relevant Review Panel had to be the subject of physical examination yet there is no reason given for that assumption let alone evidence to make good the assumption. These complaints are also inconsistent with the contention that no medical examination should have been conducted at all.
Complaints (4) and (5) relating to "transparency" reveal no error, especially where the Review Panels are to conduct their proceedings with as little formality as possible. In any event, the Review Panels have included a summary of the examination as Annexure B to the Statements of Reasons which means (4) is factually wrong. There is no reason given, let alone evidence identified to support complaint (7) about the way one medical assessor performed his role at the examination. Ill-defined and unexplained, complaint (8) does not rise above the level of assertion.
Although not clear, there may be a further complaint that the final determination of the reviews was made at the time the physical examination was conducted (i.e, on 19 April 2023), and hence the final determination was not made by the whole of each Review Panel. If this is a further complaint it must be rejected. It is wholly unsupported by evidence. The Statements of Reasons given by each Review Panel contain evidence of extensive inquiry and consideration by the Review Panel which ranged far beyond the physical examination.
The Plaintiff has not demonstrated any deficiency in the manner in which the physical examination was conducted on 19 April 2023, let alone any deficiency which is capable of constituting reviewable error.
I have not been able to identify any complaint about the re-examination on 20 September 2023 which was conducted by the medical members of the Review Panel which assessed the Plaintiff's psychiatric conditions.

[17]

Departure from the Guidelines

The Plaintiff also submits that his medical assessment was not conducted in accordance with the Motor Accident Guidelines and the AMA4 Guides. The legal status of the Guidelines is addressed above. The Plaintiff is correct to submit that the Review Panels were obliged to adhere to the Guidelines in accordance with their terms.
This argument is advanced by the Plaintiff both in relation to the assessments originally conducted by the medical assessors and the reviews conducted by the Review Panels. As explained above, the original assessments are not relevant, so it is appropriate to address only the departures from the Guidelines which are alleged against the Review Panels.
Non-compliance with the Guidelines is asserted regularly in the Plaintiff's material but usually it is asserted in general terms and without reference to any specific departure. For example, in paragraph 52 of the "Further Further Amended -3- Summons", the Plaintiff states: "Specific instances of alleged non-compliance with the guidelines are not explicitly stated but may be related to the assessment of cardiac injuries and the determination of the WPI."
The Motor Accident Guidelines and the AMA4 Guides are lengthy, detailed and highly technical documents. It is not possible for the Court to consider an allegation of non-compliance with the Guidelines where the allegation is made at large. It is only possible to consider non-compliance to the extent that the Plaintiff identifies a specific departure.
There is one specific departure identified which Plaintiff has identified, namely that the Review Panels failed to comply with paragraph 1.234 of the Motor Accident Guidelines. That paragraph provides: "1.234 The results from all relevant diagnostic tests must be taken into account by the medical assessor, including: 1.234.1 ECG (including an exercise ECG) 1.234.2 standard and trans-oesophageal echocardiogram 1.234.3 exercise thallium scan, exercise echo scan 1.234.4 coronary angiograms 1.234.5 operative notes for coronary artery bypass grafts, coronary angioplasty or other surgery 1.234.6 Holter monitoring results 1.234.7 electrodiagnostic studies 1.234.8 serum urea/electrolytes and urinalysis (particularly if hypertensive)."
The Plaintiff's argument is that compliance with paragraph 1.234 required the Review Panels to order each of the diagnostic tests listed in the paragraph. The Review Panels did not order any diagnostic tests for the Plaintiff. Therefore, the Plaintiff argues, there was a failure to comply with the Guidelines.
This complaint proceeds from a misreading of the Motor Accident Guidelines. Properly construed, paragraph 1.234 does not require the Review Panels to order diagnostic tests. It only requires them to take into account the results of any such tests which have otherwise been ordered (for example, by the Plaintiff's general practitioner or treating specialists, at any hospital to which the Plaintiff was admitted at any relevant time or by any expert witness from whom evidence is adduced as part of the medical assessment process etc.). The proper construction of paragraph 1.234 is made clear by paragraph 1.235 which provides: "1.235 Diagnostic tests should not be ordered by the medical assessor for the purpose of rating impairment. This is in keeping with the approach taken elsewhere in these Guidelines."
Another "specific" departure from the Guidelines alleged by the Plaintiff is that an assessment of his musculoskeletal system was not carried out. In his "General submissions" dated 1 October 2023, the Plaintiff states "vascular trauma must be assessed using the 'Musculoskeletal'". No specificity is provided about a relevant requirement in the Guidelines other than a reference to "Chapter 3". From the bare bones of these references, it is not possible for the Court to adjudicate this complaint.
The Plaintiff also contends that the Review Panels did not comply with "Chapter 6" of the Guidelines which relates to the cardiovascular system but no more specificity is given.
In addition to these (more or less) specific matters, the Plaintiff's documents set out some passages from the Guidelines but do not explain how the passages relate to the Plaintiff's medical circumstances or any particular aspect of the assessments carried out by the Review Panels. The Plaintiff has not identified a basis for finding that the quoted passages were not considered and complied with by the Review Panels. The fact that the Review Panels reached conclusions with which the Plaintiff does not agree does not demonstrate otherwise.
The Plaintiff has not demonstrated any failure by the Review Panels to comply with the Guidelines.

[18]

Impermissible regard to the Plaintiff's pre-accident medical condition

The Plaintiff further argues that his medical condition before the accident is irrelevant to his current need for treatment and impairment compensation. He submits that the Review Panels inappropriately took his pre-accident condition into account when assessing the cause of his injuries. For example, the Plaintiff submits in his 'Further Further Amended -3- Summons': "[12] Stressing on myocardial infarction in 2009, 57. Defendants are stressing enough on myocardial infarction in 2009, which is irrelevant to the accident and injuries suffered in 2016".
The complaint is not made out on the material before the Court. The Plaintiff is correct to say that the Review Panels took into account the Plaintiff's pre-accident medical condition so far as it related to his diabetes and cardiac conditions. There was no dispute that the Plaintiff already suffered from diabetes and a cardi condition, and the Review Panels were at pains to understand the nature and extent of those conditions before the accident.
For each condition, the relevant Review Panel described the relevance of the Plaintiff's pre-accident medical condition in the Statement of Reasons. The Plaintiff alleged that the car accident "exacerbated" his diabetes and cardio condition and therefore the Review Panels considered that it was necessary to understand the conditions before the accident in order to assess the Plaintiff's claims. The Plaintiff has not put forward any argument to undermine that reasoning and none is otherwise apparent. This complaint is to be rejected.
It should also be stated that the Plaintiff also appears to complain that the Review Panels failed to consider his medical history. His opening statement included the following: "The medical assessors and review panels failed to consider crucial evidence, including my medical history before the accident and the extent of the injuries sustained".
This complaint contradicts the previous complaint. It demonstrates the difficulty in trying to identify within the materials the basis for the Plaintiff's claim.
The Review Panels took into account the Plaintiff's medical history, as demonstrated by the Statements of Reasons, the recitation of events in the Evidence Review (Annexure A) and, indeed, by the Plaintiff's inconsistent contention that they should not have. The Plaintiff has not identified the "crucial evidence" about his pre-accident medical history which the Review Panels failed to take into account. No error is shown.

[19]

Matters not considered by the Review Panels

The Plaintiff submits that the Review Panels did not consider matters which the Plaintiff says are "significant" and "pertinent". This submission is made repeatedly in the Plaintiff's material. In order to consider this complaint, at the very least the Plaintiff would need to identify with specificity each individual matter which he says the Review Panels did not consider. The Plaintiff would also have to explain why, medically, each such matter was relevant to the specific issue being considered by the relevant Review Panel and the evidence which demonstrates that medical relevance. The Plaintiff would also have to demonstrate that the Review Panel did not consider each such matter.
Without particulars, the Court is not able to uphold this complaint. Generally, the Plaintiff makes this complaint without identifying the particular matter in question. Without particulars, the Court is not able to uphold this complaint.
However, from a review of the entirety of the Plaintiff's material I have identified a number of matters to which the Plaintiff refers and which he may be saying were not considered by the Review Panels. The principal matters are: 1. the insertion of three new stents which the Plaintiff asserts was necessary because a pre-existing stent was damaged in the accident; 2. "cardiothoracic injury"; 3. "hypertension"; and 4. post-accident events and procedures "such as" catheterization and angioplasty.
These matters all relate to aspects of the Plaintiff's cardiac condition. There is no doubt from the relevant Statement of Reasons (and the attached Evidence Review) that the Review Panel was fully aware of each of these four matters. The question whether a stent was damaged in the accident was specifically addressed in the Statement of Reasons at paragraphs [103]-[107] with reference to Professor Kovoor's "thorough report" dated 19 September 2019. Without some explanation, "cardiothoracic injury" appears to be the subject matter itself. Hypertension is specifically addressed at paragraphs [113]-[116] of the Statement of Reasons. The Evidence Review contains a comprehensive history of the Plaintiff's post-accident events and procedures, including numerous references to angioplasty and catheterization. There is nothing in the Plaintiff's material which demonstrates that the Review Panel did not take into account every matter which, in the clinical judgment of the medical members of the Review Panel, was relevant to the determination of the Plaintiff's claim that the accident caused an exacerbation of the Plaintiff's cardiac condition.
The Plaintiff also argues that the Review Panel's conclusion that there has been only a slight increase in his diabetes since the accident failed to take into account the fact that the Plaintiff is on an extremely high dose of medication for that condition.
There is no suggestion that the Review Panel was unaware of the medication which the Plaintiff takes for his diabetes. The Evidence Review includes at paragraph [169] a long list of the Plaintiff's current medication. In paragraphs [104] and [113] of the Statement of Reasons the Review Panel specifically recorded its awareness of the increase in the Plaintiff's diabetes medication since the accident. There is nothing to suggest that the Review Panel did not give this matter full consideration.
In any event, the complaint about medication masking the Plaintiff's symptoms is based on a fallacy. The Plaintiff appears to argue that the increase in his medication means that his HbA1c levels have not increased as much as they otherwise would have, thus masking the deterioration in his diabetes since the accident. The Review Panel accepted that the Plaintiff's diabetes has deteriorated since the accident (just as it was deteriorating before the accident). The Review Panel simply points out that there is no evidence that the post-accident deterioration was caused by the accident and not, for example, "the natural progression" of the Plaintiff's condition which, in the Review Panel's clinical opinion, would be expected in any event. This applies equally to the onset of the Plaintiff's peripheral neuropathy.
There is nothing in the Plaintiff's material which reveals any error in the Review Panel's approach and conclusions on these issues, much less reviewable error.
In relation to the assessment of the physical injuries, the Plaintiff further submits that the relevant Review Panel did not give sufficient consideration to "consistent" results from certain diagnostic tests, specifically CT and MRI scans. Insufficient information is given about this topic to demonstrate reviewable error by the Review Panel.
Overall, the Plaintiff has not demonstrated that the Review Panels failed to take into account any relevant matter.

[20]

Causation of the Plaintiff's cardiac condition factually wrong

The Plaintiff further submits that the relevant Review Panel was wrong to conclude that the accident in August 2016 did not cause his pre-existing cardiac condition to be exacerbated. He contends that documents show that the seatbelt trauma which he suffered in the accident affected an existing stent. He also says that the seatbelt trauma caused stenosis which is an abnormal narrowing of a passage in the body. He argues that these matters establish a causal link between the accident and the deterioration in his cardiac condition.
Four medical documents are specifically identified by the Plaintiff as proving he is correct.
The first document is a letter written by Professor Kovoor on 19 September 2016. Professor Kovoor is a cardiologist who examined the Plaintiff about a month after the accident. In the letter, Professor Kovoor described the onset of the Plaintiff's cardiac condition in 2009, including the insertion of a stent in 2009. Professor Kovoor referred to the motor accident and stated: "Motor vehicle accident with trauma to anterior aspect of chest, requires transthoracic echocardiogram." … "He unfortunately had a motor vehicle accident on 17 August 2016 while he was stationary. Another car hit his car from behind and resulted in him having trauma to the anterior aspect of his chest. He has been getting recurrent chest pain since then and has had haematemesis two days later. I understand that he went to Blacktown Hospital where ECG was normal. ECG was done by you also for further episodes of chest pain was normal."
The second document appears to be a discharge report dated 28 November 2017 after a procedure was performed at Westmead Hospital. Professor Kovoor is named as the consultant. The report includes the following text: "…[He] presented for an elective angiogram in the context of typical chest pain and known ischaemic heart disease. The procedure was successful, the previous LAD stent was patent and a stenosed RCA stent was re-stented, there were no complications to the procedure."
The third document is a report of cardiac catheterisation undertaken by Jay Thakkar on 4 September 2019. The Plaintiff points out that the report includes the following text: "Catheterisation (2017). There was a stenosis in the distal right coronary artery which was treated with drug eluting balloon angioplasty. There was a stenosis in the proximal right coronary artery which was treated with a 3 x 16 mm Promus Premier stent and drug eluting balloon angioplasty."
The fourth document is another letter by Professor Kovoor dated 1 March 2022. The letter stated: "[The Plaintiff] had a coronary angiogram at Westmead Hospital on 01 March 2022. Access from the right radial artery failed. The procedure was done from the right femoral artery. He had chronic total occlusion of the proximal aspect of the dominant right coronary artery. There was minimal collateral filling distally and it was not suitable for grafting. The lesions were also not suitable for stenting. There was only minor disease of the left circumflex artery. The left internal mammary artery was not selectively injected because it was reported to be patent on the CT coronary angiogram. We have asked him to stop clopidogrel but continue with aspirin. The best option at this stage would be optimising his medical therapy. Imdur 60mg daily could be added. A GTN patch also could be added subsequently if angina and exertional dyspnoea are not adequately controlled."
The relevant Statement of Reasons and the Evidence Review show that the Review Panel gave full consideration to the matters referred to in the four documents relied upon by the Plaintiff. There is no basis to conclude that the Review Panel's conclusion on this issue was relevantly unreasonable.
These documents do not demonstrate reviewable error by the Review Panel which considered the Plaintiff's cardiac condition.
In any event, whether the exacerbation of the Plaintiff's cardiac condition was caused by the accident is a question of fact. This complaint is no more than a contention that the Review Panel made an error of fact. For that reason alone it is to be rejected.

[23]

Incomprehensibility of the Review Panels' reasons

The Plaintiff submits that the decisions of the Review Panels are "incomprehensible by the Plaintiff" and, hence, invalid. It is unclear if this is a complaint against the decisions actually made or just the reasons given for the decisions. The Plaintiff has identified what he considers to be errors in the reasons, such as a reference to the wrong medical assessor in one paragraph and a statement which the Plaintiff considers contradicts another statement made elsewhere in the reasons.
As set out above, each Review Panel was required to give reasons for its determination: ss 61(9) and 63(6) of the MAC Act. For the reasons to be adequate they must explain the actual path of reasoning by which the Review Panel in fact arrived at the opinion it in fact formed on the medical question to be determined by the Review Panel.
Each of the Statements of Reasons (including the Evidence Review in Annexure A) is in evidence before the Court. Each satisfies the requirement for adequate reasons. The path of reasoning is clearly set out. The Plaintiff may have identified what may fairly be described as typographical errors. His contention that the Statements of Reasons are "incomprehensible" is to be rejected.
The Plaintiff also contends that the Review Panels had an obligation to engage with the arguments presented by him, which the Review Panels have failed to do. The Plaintiff has not made out this contention. Apart from what may be inferred from the above, the Plaintiff has not identified any specific arguments which he says he presented to the Review Panels and which they failed to engage with. In any event, the Review Panels obligation to address the arguments made by the Plaintiff was limited to substantial, clearly articulated arguments which relied on established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1092; [2003] HCA 26 at [24] (Gummow and Callinan JJ). The material presented by the Plaintiff is difficult to follow. More specificity is required before a complaint like this can be determined in accordance with law.

[25]

Procedural complaints in the Supreme Court

By the time the case came on for hearing on 30 July 2024 the Plaintiff also submitted that there had been a lack of procedural fairness in the Supreme Court proceedings. Firstly, he was concerned that there had been a delay in preparing the joint Court Book.
On 23 February 2024 an order was made that the parties file a joint Court Book by 24 May 2024. For non-specific defaults which the Plaintiff attributes to the Insurer, this did not occur. On the evidence before the Court it was not possible to identify the cause of the problem, but it was not ultimately necessary to do so. In the end each party filed its own Court Book, the Insurer shortly before the hearing commenced and the Plaintiff on the day of the hearing. The Insurer's Court Book (6 volumes) was prepared specifically to provide the Court with ready and convenient access to all underlying documents to which the Plaintiff may wish to refer, in circumstances where the Insurer submitted that the only relevant evidence was the Certificates issued by the Review Panel. Further, to assist the Court the Insurer prepared a list of documents which were in the Plaintiff's Court Book (5 volumes) but not in the Insurer's Court Book. Although the Insurer submitted that none of the material in the Plaintiff's Court Book was relevant, the Insurer did not object to it being adduced into evidence as a single exhibit. The Insurer's approach was appropriate in this case given the time, cost and possible futility of having the Plaintiff identify documents for individual tender.
The Plaintiff said he was prejudiced by the Insurer's Court Book conduct. He referred to inadequate preparation time, increased legal costs, disruption of legal strategy and "procedural fairness". No specifics were given. The Plaintiff declined the offer of an adjournment for the purpose of curing any prejudice. At the conclusion of the hearing the Plaintiff was granted leave to file further submissions within 14 days, which was twice as long as he asked for. The opportunity to file further submissions provided the Plaintiff with the means of addressing prejudice actually caused by having two Court Books (if any). Whilst the two Court Books caused some confusion at the hearing, ultimately there was no apparent prejudice. There is no basis for the Plaintiff's complaint about the Insurer's Court Book conduct.
The second matter which the Plaintiff submitted caused procedural unfairness was the Insurer's Affidavits. The Plaintiff repeatedly complained about the manner in which the Affidavits were affirmed and witnessed. There were two such Affidavits, each affirmed by the Insurer's solicitor. The first, dated 12 April 2024, was the vehicle through which a large number of uncontroversial documents were identified and adduced into evidence. The deponent provided no commentary about the documents other than references to appropriate context where the identity and/or provenance of a particular document was not otherwise apparent. The second one-page Affidavit, dated 24 May 2024, corrected three documents addressed in the first Affidavit. Both Affidavits were apparently regular on their face, both as to affirmation by the deponent and witnessing by the witness. Nothing submitted by the Plaintiff indicated otherwise. The deponent of these affidavits, the Insurer's solicitor, was present in Court throughout the hearing. There was nothing in this complaint which can in any way affect the outcome of the case.

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