Little v Allianz Australia Insurance Limited

Supreme Court of NSW|2017-04-20|Before: Campbell J

"Medical assessor guidance note 5: Mental and Behavioural Disorders Impairment: Postconcussional Syndrome"

"Permanent Impairment Guidelines - Guidelines for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident", 1 October 2007 Category: Principal judgment Parties: Craig Walter Little (Plaintiff) Allianz Australia Insurance Limited (First Defendant) State Insurance Regulatory Authority (Second Defendant) A proper officer appointed by the State Insurance Regulatory Authority for Motor Accidents Medical Assessment Service (Third Defendant) A Medical Assessor appointed by the State Insurance Regulatory Authority for Motor Accidents Medical Assessment Service (Fourth Defendant) A Medical Assessor appointed by the State Insurance Regulatory Authority for Motor Accidents Medical Assessment Service (Fifth Defendant) Representation: Counsel: E Romaniuk SC with S J Roulstone (Plaintiff) Dr K P Rewell SC with G J Smith (First Defendant)

Solicitors: LHD Lawyers (Plaintiff) McInnes Wilson Lawyers (First Defendant) Crown Solicitor (Second to Fifth Defendants) File Number(s): 2017/58589 Publication restriction: Nil

Judgment

The plaintiff, Mr Little, seeks judicial review of a number of decisions made during the administration of his claim for damages under the Motor Accidents Compensation Act 1999 (NSW) ("the Act").
The first defendant, and active contradictor, is Allianz Australia Insurance Limited ("the insurer"), the insurer liable for Mr Little's claim. The second to fifth defendants respectively are the State Insurance Regulatory Authority ("SIRA"); the proper officer of SIRA referred to in s 62(1B) of the Act; Dr Terry Coyne, a neurosurgeon and medical assessor appointed under s 59 of the Act; and Dr Wayne Scurrah, a psychiatrist and medical assessor appointed under s 59 of the Act. Submitting appearances were filed on behalf of the second to fifth defendants.

Mr Little's motor accident

Mr Little was injured in a motor accident on 20 August 2013 when the vehicle he was driving was struck in a side-swiping manner by an oncoming vehicle. Mr Little's vehicle spun out of control colliding with a truck. In this collision the roof of his vehicle intruded into the passenger cabin striking him on the back of the head as a result of which he claimed to have suffered a traumatic brain injury.
The insurer admitted liability but disputed that the degree of permanent impairment suffered by Mr Little as a result of the injury caused by the motor accident was greater than 10 per cent (see s 131 of the Act).

The scheme for resolving medical disputes

The scheme provided by the Act for the resolution of medical disputes has been described in many cases: see, for example, Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at 598-599 [7]-[15] by Beazley JA (as her Honour then was); and Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480 from [20] ff by Beazley P. It remains necessary however for me to refer to those provisions of the Act pertinent to this case.
Under s 60 of the Act a party to a medical dispute may refer to SIRA for assessment. A medical dispute extends to a disagreement about a claimant's degree of permanent impairment as a result of injury caused by a motor accident such as existed here: ss 57 and 58 of the Act. SIRA is empowered "to arrange for the dispute to be referred to one or more medical assessors" [my emphasis]: s 60(2). Medical assessments are subject to Motor Accidents Medical Guidelines issued under s 44(1)(d) of the Act: s 65(1). But the assessors in exercising their power are "not subject to the control and direction by" the SIRA: s 65(3). It is relevant for present purposes to record that under s 65(2) of the Act: The Authority may arrange for the provision of training and information to medical assessors to promote accurate and consistent medical assessments under this Part. (Part 3.4 of the Act) SIRA has issued guidelines for the assessment of the degree of permanent impairment under s 44(1)(c) ("Permanent Impairment Guidelines"). By cl 1.3 of the Permanent Impairment Guidelines, "if the text is in bold, it is a directive as to how the assessment should be performed".
Section 133 of the Act provides that the assessment of the degree of impairment is to be made in accordance with the Permanent Impairment Guidelines. Sections 133(3) and 61(10) require impairment resulting from a physical injury to be assessed separately from impairment resulting from psychological injury: Ali v AAI Limited [2016] NSWCA 110 at [19] by Basten JA (Leeming and Simpson JJA agreeing). This is reflected in cll 1.38 and 1.39 of the Permanent Impairment Guidelines which provide: 1.38 Impairment resulting from a physical injury is to be assessed separately from the impairment resulting from psychiatric or psychological injury. 1.39 When determining whether the degree of permanent impairment of the injured person resulting from a motor accident is greater than 10%, the impairment rating for a physical injury cannot be combined with the impairment rating for a psychiatric or psychological injury.
Clauses 5.9 and 5.10 of the Permanent Impairment Guidelines are also pertinent. They are in the following terms: 5.9 For an assessment of Mental Status Impairments and Emotional and Behavioural Impairments there should be: (i) evidence of a significant impact to the head, or a cerebral insult, or that the motor accident involved a high velocity vehicle impact; and (ii) one or more significant medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or Post Traumatic Amnesia, or brain imaging abnormality. 5.10 The results of psychometric testing, if available, should be taken into consideration.
It is important to remind myself that in Ali v AAI Limited Leeming JA in a separate concurring judgment (at [95]-[99]) expressed the view that guidelines to which I have referred are not delegated legislation "in the sense that they bind of their own force" (at [99]). His Honour said: "… if judicial review is sought of a decision of an assessor based upon guidelines, it will be necessary to address the provisions of statute which make the guidelines applicable, and it will be necessary to address the particular clauses relied on, because both the Act and guidelines made pursuant to it proceed on the basis that they are not all of the same legal force." In other cases the guidelines have been referred to as delegated legislation: Trazivuk v Motor Accidents Authority of NSW [2010] NSWCA 287 at [31]; McKee v Allianz Australia Insurance Limited (2008) 71 NSWLR 609; [2008] NSWCA 163 at 630-631 [92] - [95]; Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266; [2006] NSWSC 1090 at 274 [17]; NRMA Insurance Limited v Motor Accidents Authority of NSW (2004) 61 NSWLR 264; [2004] NSWSC 567 at 269-270 [26] - [28]. However Leeming JA's principal point was also made by Allsop P (as the Chief Justice then was) in McKee (at 611 [6]): Guidelines issued under [the Act], s44(1)(d) might deal with procedures for referral… of assessments or the procedure for assessment, but any such guidelines would not help in understanding the content [of the Act] by reference to which the limits of the power of [a medical assessor] are to be identified.
SIRA has also issued a protocol entitled "Brain injuries assessment fact sheet (for assessors)" ("the brain injury protocol") to be followed "when a dispute about the degree of permanent impairment arising from a brain injury is referred" for assessment. The purpose of the protocol is: "… to ensure that proper consideration is given to all the symptoms arising from a brain injury, and that the degree of permanent impairment is fully assessed." Although not expressed to be so, presumably the protocol was issued under s 65(2) of the Act.
Upon referral for assessment under s 60 of the Act, appointments are arranged: "… for the injured person to be assessed by different Assessors, including a brain injury specialist and a psychiatrist. The psychiatric appointment may not be required in all cases, and the psychiatrist Assessor will be advised if this appointment is to be cancelled." The process is described to operate in two steps. Step 1 is for assessment by a medical assessor who has a particular expertise in the assessment of brain injuries (not a psychiatrist). The text of the protocol makes clear that this assessor is to have regard to the provisions of cl 5.9 of the Permanent Impairment Guidelines (set out at [8] above). If necessary the assessor can request neuropsychological testing to be carried out. It is envisaged that there are "two possible outcomes" to this stage of the process. They are: 1 The assessor determines that the symptoms reported by the injured person cannot be fully explained by a brain injury. A psychiatrist will then assess the injured person. 2 The assessor determines that there is a permanent whole person impairment arising from the brain injury which is greater than 10% OR there are no symptoms which relate to a possible psychiatric impairment.
Step 2 provides for a psychiatric assessment "[u]nless the brain injury Assessor advises otherwise". The psychiatrist assessor is to be provided with the medical assessment certificate issued by the brain injury assessor together with the neuropsychological testing results "if these were obtained". The protocol continues: "In accordance with the required method for assessing permanent impairment arising from a psychiatric injury, the psychiatrist must first consider whether the injured person has a recognised psychiatric condition. If the psychiatrist finds that there is a recognised psychiatric condition that is related to the motor vehicle accident, he or she will determine the extent of permanent impairment arising from this condition." A separate certificate will then issue.
SIRA has issued another document entitled "Medical assessors guidance note 5", expressly given under s 65(2) of the Act which should be read in conjunction with the brain injury protocol. It relates to "mental and behavioural disorders impairments: post-concussional syndrome". It propounds a "recommended interpretation" in an area where more than one interpretation of existing guidelines may be possible.
Guidance note 5 points out that a person who suffers a head injury and complains of cognitive impairment may not satisfy the requirements of cl 5.9 of the Permanent Impairment Guidelines "and may be assessed under Chapter 7" dealing with mental and behavioural disorders impairment instead.
The guidance note provides: "Persons who present with a variety of somatic, cognitive, emotional, motor or sensory disability ascribed to the concussion may have no convincing historical or clinical evidence of significant brain injury." Noting that post-concussional syndrome or disorder "is an uncertain and controversial area", psychiatrist assessors are entitled to consider its application for good reason expressed in the certificate if there is no other "psychiatric disorder which could better account for the person's symptoms". This guidance note may have particular application if a brain injury assessment proceeds to step 2 of the brain injury protocol.
The guidance note provides: "[If] there is not a more appropriate psychiatric disorder, then the diagnosis of post-concussional syndrome (using ICD-10 criteria) can be made providing that the diagnostic criteria are demonstrated to apply." (ICD-10 is a reference to "International Statistical Classification of Diseases and Related Health Problems", 10th revision, World Health Organisation, 1993.) Degree of impairment is to be assessed by application of the usual Psychiatric Impairment Rating Scale ("PIRS") set out in the tables to Chapter 7 of the Permanent Impairment Guidelines.

Dr Coyne's assessment

The medical dispute about the degree of permanent impairment suffered by Mr Little was referred to SIRA by his solicitor under s 60 of the Act by application dated 1 July 2015. The application listed the following injuries asserted to give rise to an assessable degree of permanent impairment (p 8): Bodily location of injury Injury type What aspects of this injury are in dispute Head Brain injury Degree of permanent impairment Cervical thoracio spine Musculo-ligamentous injury Degree of permanent impairment

Dr Coyne's certificate under s 61(1) of the Act was given on 7 October 2015. His attached reasons form part of the certificate under s 61(9). The certificate is in the following terms: The following injuries caused by the motor accident give rise to a permanent impairment WHICH IS NOT GREATER THAN 10%: Mild closed head injury with scalp lacerations / subgaleal haematoma. Cervical spine soft tissue injury. Details of the assessment are set out in the reasons below, which form part of this certificate.
It is worth recording the following aspect of the history provided by Mr Little to Dr Coyne: "Mr Little said he recalls leaving [his work] depot and the impact of the accident. He said his first memory after the motor accident is alighting from his vehicle and being on the side of the road." Mr Little described symptoms consistent with an ongoing cognitive deficit including impairment of short term memory, difficulty with time perception, tendency to tire easily, and mood disturbance. Dr Coyne found Mr Little "consistent in his presentation". Dr Coyne reviewed an MRI scan of the brain taken on 5 May 2015 which he described as normal, there being no evidence of traumatic brain injury. The report of a CT scan taken at Lismore Hospital on 20 August 2013 was reported as showing "no skull fracture or evidence of intracranial trauma". On his review of the documentation Dr Coyne recorded that the Glasgow Coma Scale ("GCS") assessment made at the scene by ambulance personnel, and in the emergency department at Lismore Hospital, was scored as 15/15 on each occasion. Neurological notes compiled during his hospitalisation until discharge on 22 August 2013 noted that Mr Little's GCS remained 15/15. Testing for post-traumatic amnesia by an occupational therapist on 21 and 22 August 2013 revealed no abnormality: "The occupational therapist commented that Mr Little completed testing without difficulty" (Dr Coyne's certificate, p 6).
Mr Little's general practitioner's notes did not record any complaint which may be referrable to "any post-head injury symptoms up to 21.07.14" (Dr Coyne's certificate, p 6).
Medico-legal reports obtained by Mr Little's solicitors from Dr N Burke, occupational physician, and Dr J Bastian, rehabilitation specialist, contained the opinion that Mr Little had sustained a "closed head injury" and "organic brain injury" respectively. Dr Coyne reviewed the report of Dr D Rowe, a neuropsychologist, of 9 February 2015. Dr Rowe had administered the usual battery of psychometric testing, the results indicating "impairments in memory, executive function, attention and information processing" (Dr Coyne's certificate, p 6). Dr Coyne recorded, "Dr Rowe's opinion was that Mr [Little] sustained a mild traumatic brain injury with persisting cognitive deficits and post concussion syndrome" (Dr Coyne's certificate, p 6). Dr Rowe considered that the neurological testing result was consistent with a level of cognitive injury greater than to be expected from the objective indicia of brain injury.
Dr Coyne found "Mr Little likely sustained a mild closed head injury". He went on to say (at p 7): "By all usual medically accepted criteria Mr Little's closed head injury would be described as mild. It is acknowledged that he sustained a head injury, having sustained a scalp laceration and describing possible brief periods of loss of consciousness and PTA." Dr Coyne reiterated the GCS score, results on formal PTA assessment (noting criticisms of the methodology at Lismore Hospital made by Dr Rowe) and the radiology indicating a normal outcome for traumatic brain injury before commenting (at p 7): "These factors all indicate that any structural brain injury sustained by Mr Little in the subject motor accident was of a mild nature, and as such unlikely to result in any persisting neurological sequelae. Mr Little's persisting symptoms of cognitive impairment are acknowledged. However, given that it is difficult to account for these symptoms on the basis of any structural brain injury, it is likely they relate to other factors, such as his persisting pain, analgesic use, and possibly adverse psychosocial factors."
Dr Coyne referred to cl 5.9 of the Permanent Impairment Guidelines as set out above (at [8]). On my reading of his report he seemed to accept there was sufficient evidence of significant impact to the head to satisfy the first criterion (cl 5.9(i)) but he had difficulty with the second (cl 5.9(ii)) because "[g]iven Mr Little's history and documentation do not indicate any such medically verified abnormalities, the MAA Guidelines indicate that he cannot be assessed with any whole person impairment on the basis of mental status impairment" (Dr Coyne's certificate, p 7).
It is quite clear that Dr Coyne was carrying out his assessment in accordance with the brain injury protocol and guidance note 5. He referred to the latter expressly and the former by necessary implication in as much as he confirmed the need "for Mr Little to be assessed by a psychiatrist … and for overall assessment of the potential influence of adverse psychosocial factors on his presentation" (Dr Coyne's certificate, p 7). He referred to the consideration that Dr Rowe considered that Mr little fulfilled the criteria for post-concussion syndrome, presumably under ICD-10.
Dr Coyne accepted that Mr Little was genuine in his account of his symptoms in his cervical spine but that on application of the guidelines there was no assessable degree of permanent impairment. An application for review of Dr Coyne's assessment was rejected by the proper officer under s 63(3) of the Act because the proper officer was not "satisfied that there [was] reasonable cause to suspect that the medical assessment was incorrect in a material respect". That decision is not challenged.

Challenge to Dr Coyne's certificate

With respect, it is a little hard to follow what grounds Mr Little relied upon to impugn Dr Coyne's certificate. The challenge seems to have been included because Mr Little argues that Dr Coyne was a participant in a legally flawed assessment process established by the brain injury protocol which allowed Mr Little to "fall between two stools" (summons at 6(i)). There was no argument advanced, for example, that Dr Coyne had overlooked any "significant medically verified abnormality" capable of engaging cl 5.9(ii).
I accept the argument of the insurer that no jurisdictional error or error on the face of the record has been demonstrated to vitiate Dr Coyne's certificate. I accept that Dr Coyne relied on his clinical judgment, carefully observed the requirements of the Permanent Impairment Guidelines and applied the brain injury protocol in accordance with its terms. I reject the Mr Little's challenge to Dr Coyne's certificate.

Dr Scurrah's certificate

In accordance with the brain injury protocol, given Dr Coyne's assessment, SIRA referred Mr Little to Dr M Scurrah, psychiatrist. Dr Scurrah was provided with a copy of Dr Coyne's certificate (it arrived on the same day but after his consultation with Mr Little). Dr Scurrah's certificate given on 13 October 2015 (the day of his examination) indicates (at p 2) that Mr Little had been referred to him under the "ABI protocol" which I take to be a reference to what I have called the brain injury protocol.
Dr Scurrah's "replacement certificate" is in the following terms: "The following injuries caused by the motor accident give rise to a permanent impairment which IS NOT GREATER THAN 10% : A chronic Adjustment Disorder with mixed anxiety / depressive symptoms. Details of the assessment are set out in the reasons below, which form part of this replacement certificate." It is not clear to me why Dr Scurrah's certificate was said to be a replacement certificate given that physical and psychiatric injuries must be separately assessed and cannot be combined. There can be no question of Dr Coyne's certificate being "replaced" by a psychiatric assessment.
What is immediately clear from Dr Scurrah's reasons (forming part of his certificate in accordance with s 61(9) of the Act) is that Dr Scurrah took a different view from Dr Coyne about Mr Little's head injury. On mental state examination Dr Scurrah found (at p 4): "• Significant cognitive deficits. There is vagueness with certain timeframes post-accident, difficulty with multi tasking and an occasional inappropriate smile." And in Dr Scurrah's opinion "the characteristics of [Mr Little's] mental state examination are consistent with a significant brain injury" (at p 4).
In his review of the documentation provided for his consideration he expresses agreement with Dr Rowe's view that Mr Little suffered a traumatic brain injury. He disagreed with Dr Rowe's understanding that there had "been no concerns in respect to psychiatric symptoms" (at p 5). Dr Scurrah noted that some of the signs recorded by Dr Bastian were consistent with head injury including a difficulty with word finding. Dr Scurrah expressed his disagreement with Dr Coyne (at p 5). He confirmed his view that Mr Little "has a significant brain injury which has major impact on his neurocognitive functioning". He regarded the collision as a "high impact collision" (I did not regard Dr Coyne as disputing satisfaction with the criterion in cl 5.9(i)). He asserted "neurocognitive deficits fall within my general expertise" (at p 5).
Dr Scurrah set out in detail (pp 5-6) the reasons for his disagreement with Dr Coyne. Those reasons include Dr Scurrah's view on why the criterion in 5.9(ii) did not apply; essentially because the radiology may not have had the sensitivity to reveal the types of structural deficit which would lead to these neurocognitive deficits (at p 6). Dr Scurrah agreed with Dr Rowe about the shortcomings of the PTA assessment carried out at Lismore Hospital. In relation to Dr Coyne raising the question about whether Mr Little suffered a "post-concussional syndrome/post-concussional disorder" (Dr Coyne's certificate, p 7) Dr Scurrah said (at p 6): "From my perspective, to use the term post-concussional syndrome/post-concussional disorder would be inappropriate given the cognitive defects of this head injury." He concluded that Mr Little has significant neurocognitive dysfunction; the assessments at Lismore Hospital were "not sensitive to the type of neurocognitive deficits" Mr Little has (at p 6); and that the balance of medical and neuropsychological opinion favoured his view. He did not regard the neurocognitive deficits as due to a psychiatric disorder.
Dr Scurrah acknowledged that significant brain injury was not his "area of expertise for this report", notwithstanding his professional expertise in the area in practice. He diagnosed a chronic adjustment disorder and a chronic post-traumatic stress disorder, the latter in remission.
He went on to assess the degree of permanent impairment according to the PIRS as directed by cl 7.4 (which appears in bold) as set out in Tables 7.1 to 7.6 of Chapter 7 of the Permanent Impairment Guidelines. It is clear that his assessment is affected by him excluding from consideration matters referrable, in his view, to the significant brain injury he diagnosed.

The challenge to Dr Scurrah's certificate

Mr Little seeks to impugn Dr Scurrah's certificate essentially on two grounds. First, he failed to perform his statutory task because the brain injury protocol required him to accept and act upon the determination of Dr Coyne, which he failed to do. Secondly, he failed to perform an assessment under either the PIRS or ICD-10 relating to post-concussional syndrome or disorder in accordance with guidance note 5.
The insurer argued that given his complaints about the process, the proper course was for Mr Little to apply for a review under s 63 of the Act rather than judicial review. This he had not done. The insurer also pointed out that Dr Scurrah was obliged to form his own independent opinion in relation to the matters referred to him. He was not bound by the opinion of others. Dr Scurrah properly recognised that he was not authorised to assess impairment arising from structural brain injury, even if he had the professional expertise to do so. Given the evaluative nature of the assessment task it was understandable that differences of opinion would arise. If the effect was that a claim "fell between two stools", then so be it.
The insurer argued that even if there was an error of the type complained of by Mr Little, the application of the PRIS to all symptoms including the neurocognitive deficits would not have led to an assessment of an impairment of greater than 10 per cent for the purpose of s 132 of the Act. A great deal of detail was provided to support this argument producing a result of about 8 per cent impairment which was said to be not sensibly available in any event. It was also argued that if Dr Scurrah had treated the symptoms as referrable to post-concussional syndrome or disorder, there would have been no impairment under ICD-10 because there was no evidence that the plaintiff lost consciousness in the accident on 20 August 2013, an essential criterion for that diagnosis. These latter arguments were advanced, I understood, to demonstrate that if there was error it was not dispositive.

Decision

I accept Mr Little's arguments that Dr Scurrah's certificate is vitiated by jurisdictional error. This may be, as Mr Little argues, a constructive failure to exercise the function conferred by the Act. I would prefer to categorise the error as falling into the category of taking into account an irrelevant consideration, in this case his own opinion about whether Mr Little had suffered significant organic brain injury in the motor accident. This amounts to legal error: Ali v AAI Limited at [64] by Basten JA.
I accept, of course, that any limitation on the factors to which the medical assessor may legitimately have regard in discharging his or her statutory function of resolving a medical dispute by the process of assessment must "be found in the subject-matter, scope and purpose" of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 at 40; Ali v AAI Limited at [99] by Leeming JA; and McKee at [6] by Allsop P. I also appreciate the difficulty that the absence of an express prohibition in the Act presents generally: R v Australian Broadcasting Tribunal; Ex parte 2 HD Pty Ltd (1979) 144 CLR 45; [1979] HCA 62. However, it is well to bear in mind that the power exercised by Dr Scurrah was not in the nature of an unconfined statutory discretion. What was required by the Act was the exercise of an evaluative judgement in making the statutory assessment. As was said in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at 498-499 [47]: "The function of a Medical Panel is to form and give its own opinion on the medical question referred for its 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." [My emphasis] This statement was made in the context of similar Victorian legislation but has frequently been referred to with approval by the Court of Appeal in the legal context provided by the Act: see, for example, Ali v AAI limited at [42] by Basten JA.
I repeat, it is an express feature of the statutory scheme that psychiatric or psychological impairment is to be assessed separately from impairments which result from physical injuries: ss 133(3), 61(10) of the Act. This legal requirement is reflected in cll 1.38 and 1.39 of the Permanent Impairment Guidelines. The medical question referred to him for his assessment was the degree of permanent psychiatric impairment associated with Mr little's head injury, the physiological consequences of which had been assessed by Dr Coyne. That question was referred pursuant to the brain injury protocol. He was not asked to opine on the correctness of Dr Coyne's opinion.
The legal effect of Dr Coyne's certificate is also relevant here. His certificate was conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor concerning Mr Little's claim. I appreciate Dr Scurrah is not a claims assessor, he is a medical assessor. But Dr Coyne's certificate of physical impairment prevails for legal purposes unless the matter is referred for assessment again s 62, and a different certificate is then given, or a new certificate is issued under s 63 following review. Dr Scurrah was not exercising powers following a reference under either s 62 or s 63.
In my judgement the subject matter, scope and purpose of the sections establishing the scheme for medical assessment, as set out or described above, required Dr Scurrah to give full effect to Dr Coyne's certificate, including the reasons which formed part of it. That he may have been competent in the course of his professional practice to assess acquired brain injury is not to the point. That was not his statutory task; that was not the matter referred to him for assessment.
Moreover it is apparent that in applying the PRIS Dr Scurrah did not take into account any of the symptoms which he regarded as referrable to the significant brain injury which he diagnosed. Many of the matters which he characterised as neurocognitive defects were relevant to the various classes covered by the scale, as Dr Scurrah expressly acknowledged in his report. By adopting this approach it may be said that he failed to take into account relevant considerations in the performance of his task.
Although I have expressed it slightly differently, these same considerations support the conclusion that Dr Scurrah failed to exercise his statutory task.
Accepting that the brain injury protocol is not legally binding in the sense discussed by Leeming JA in Ali v AAI Limited, nonetheless there is within the s 62 power of the SIRA to refer matters for assessment an implied power to institute practice and procedure to facilitate the exercise of that statutory power, over and above the express s 44 power, provided the practices adopted are not inconsistent with the Act or the various guidelines made under it. As I have remarked, it may well be that the brain injury protocol is by implication an exercise of the s 65(2) power. Dr Coyne clearly acted in accordance with it in carrying out his assessment. Dr Scurrah referred to it in passing. I am inclined to the view that although not binding of its own force it relevantly defined the question that Dr Scurrah was required to answer.
It is clearly within the scope of SIRA's statutory powers to establish a protocol or policy for dealing with recurrent problems such as the assessment of the cognitive defects of apparent brain injury given that such matters are likely to bridge the physical/psychiatric injury dichotomy established by the statute. It was not for Dr Scurrah to assess brain injury. All he was required to do was to assess psychiatric injury including by addressing the possibility that the apparent neurocognitive deficits were due to post-concussional syndrome or disorder.
I do not think it is necessary to address the insurer's "materiality argument" in any detail. The test was stated by Mason J in Peko-Wallsend in the following terms (at 40 [15]): "Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision … A similar principle has been enunciated in cased where regard has been had to irrelevant considerations in the making of an administrative decision." [Citations omitted.]
As I have already said, it is obvious from his reasons that the error made by Dr Scurrah affected the assessment he made. In my view it cannot be said that his erroneous view about Mr Little's brain injury was "so insignificant" that it could not have materially affected the decision. Had he taken the neurocognitive symptoms into account where they were relevant to his task, obviously a different decision would have been made. It is unnecessary for me to descend into a reassessment to work out whether the impairment might possibly have been "greater than 10%". This is an invitation to descend into merits review or, what amounts to the same thing, review by rehearing. Moreover I am not satisfied that ICD-10 could not possibly apply. Dr Coyne pointed out that there was some evidence suggestive of a loss of consciousness, the criterion which the insurer suggested was entirely absent.
I will make orders in due course setting aside Dr Scurrah's assessment certificate and remitting the matter for reassessment.

The decision of the proper officer

After receiving Dr Scurrah's certificate Mr Little applied for the question of the degree of permanent impairment suffered by him due to his head injury to be referred again for assessment under s 62 of the Act "on the basis that additional relevant information has come to light which is capable of having a material effect on the outcome of the previous assessment" (plaintiff's submissions at [1]). The request was for another assessment of the step 1 process under the brain injury protocol. The additional information was identified as: written submissions prepared in support of the application dated 27 September 2016; the certificate of Dr Scurrah dated 13 October 2015; and a further medical report of Dr Hampshire, psychiatrist, dated 10 August 2016.
Section 62 of the Act is in the following terms: 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.
As can be seen the referral by a party is to the proper officer. The matter only proceeds to a further assessment if: 1. There is additional relevant information about a claimant's injury. This means additional to the information available to the medical assessor who carried out the previous assessment; 2. The additional information is such as to be capable of having a material effect on the outcome of the previous assessment. This is a matter for the subjective satisfaction of the proper officer not readily amenable to judicial review; and 3. In the exercise of a residual discretion the proper officer decides to allocate the matter for a further assessment. This arises out of the phrase "may be referred again" in s 62(1) [my emphasis]. These principles may be taken to arise out of Rodger v De Gelder; Henderson v QBE Insurance; QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442; (2013) 67 MVR 322; Jubb v Insurance Australia Limited [2016] NSWCA 153; (2016) 76 MVR 228; and Insurance Australia Limited (t/as NRMA Insurance) v Asaner (No 2) [2016] NSWSC 1078; (2016) 77 MVR 233 at 241 [29]-[32].
The proper officer refused to refer the matter for assessment again in a decision given in writing on 23 November 2016. The decision was principally based on two grounds. The first was that the material identified by Mr Little was not additional relevant information. The second was that she was not satisfied that the additional information was capable of having a material effect on the outcome of the previous assessment.
The first ground was based on the reasoning in Singh v Motor Accidents Authority of NSW (No 2) (2010) NSWSC 1443; 57 MVR 157, and to a lesser extent Alavanja v NRMA Insurance Limited [2010] NSWSC 1182. The proper officer held that neither report of Dr Hampshire and Dr Scurrah "appeared to contain an opinion of different kind than the opinions already expressed and considered [by Dr Coyne]" or "appear[ed] to be saying the same thing but using different or greater analysis of the opinions already considered by assessor Coyne" (reasons at [20]). The proper officer expanded on these ideas over the following paragraphs.
Although not expressly overruled, the decisions in Singh and Alavanja are inconsistent with the reasoning of the Court of Appeal in Jubb. Gleeson JA (Meagher and Payne JJA agreeing) (at 245 [80]) pointed out: "A further medical opinion based upon the same material as was available at the time of the earlier assessment may, depending on the cogency of the reasons for the opinion expressed, constitute additional information. So much seems to have been accepted by Meagher JA in Henderson at [106]."
His Honour thought it unnecessary to review Alavanja. However, the proper officer understood Alavanja to stand for the proposition that another expert expressing an opinion to the same effect as one available on the former assessment "but using different or greater analysis would not mean the information was additional because the opinion was already considered" (reasons at [18]). It seems to me that different or greater analysis may be relevant to the cogency of an opinion and therefore legally capable, at least, of constituting additional information.
In the light of Jubb the proper officer misdirected herself as to the meaning of "additional relevant information" in the Act and so misconstrued her statutory task. By this she fell into jurisdictional error. The same reasoning indicates error of law on the face of the record, assuming s 69(4) Supreme Court Act 1970 (NSW) extends to her decision.
The proper officer's reasons for not being satisfied that the additional information was such as being capable of having a material effect on the outcome of the earlier assessment were expressed as follows (reasons at [26]): "The methodology applied by assessor Coyne, and highlighted by the respondent, is important when considering whether the report of Dr Hampshire and the certificate of Assessor Scurrah are such as to be capable of having a material effect on the outcome of the previous assessment. Even if I had accepted that these two documents were additional relevant information, I am guided by assessor Coyne's certificate on how a brain injury is to be assessed according to the Permanent Impairment Guidelines. Specifically, I note assessor Coyne's comments that there was no evidence of medically verified abnormalities. Even if I accept that Dr Hampshire's and Assessor Scurrah's opinions could assist a Medical Assessor explain the claimant's symptomology, I cannot ignore the overarching requirement of clause 5.9 of the Permanent Impairment Guidelines which would (sc not) allow the claimant to be assessed as having permanent impairment as a result of a brain injury. I am therefore not satisfied that either limb of the section 62 test has been met."
Rodger v De Gelder establishes, and QBE Insurance v Miller explains, that the court's powers of judicial review in relation to a state of satisfaction provision like s 62(1A) "are limited to determining whether the proper officer's opinion has been properly formed according to law" [citations omitted]: QBE Insurance v Miller at 333 [36] by Basten JA. From Basten JA's analysis in QBE Insurance v Miller, the grounds of review are limited to: irrationality; illogicality; important findings or inferences not supported by logical grounds; opinion formed by taking into account irrelevant considerations; or otherwise misconstruing the terms of the relevant legislation. None of these grounds are made out here in relation to the second ground of decision.
Both Dr Scurrah and Dr Hampshire were of the view that there was a category of organic brain damage giving rise to neurocognitive defect which was not susceptible to detection by even modern radiology. Even if this is correct, with respect, they did not point to other evidence "of medically verified abnormalities". I am not satisfied that the proper officer's state of (non) satisfaction was not formed according to law. I reject the challenge to her decision.

The claim against SIRA

The claim against SIRA involved the contention that it was bound to institute practices and procedures for the assessment of the impairment resulting from acquired brain injury caused by a motor vehicle accident which eliminated the risk of a claimant like Mr Little "falling between two stools". I think it fair to say that the argument was advanced contingently, lest all of the other arguments failed. In the event, Mr Little has succeeded in his challenge to the certificate of Dr Scurrah. Therefore it is unnecessary for me to consider this, if I may say so with respect, most unpromising argument.

Orders

My orders are: 1. By order in the nature of certiorari quash the medical assessment certificate in MAS matter number 2015-02-2213 given by assessor Dr M Scurrah on 13 October 2015. 2. Remit the matter to the Motor Accidents Medical Assessments Service of the State Insurance Regulatory Authority for a "step 2" assessment in accordance with these reasons by a psychiatrist assessor under the brain injury assessment protocol and s 60 Motor Accidents Compensation Act 1999 (NSW). 3. The first defendant to pay the plaintiff's costs. 4. Summons filed on 23 February 2017 is otherwise dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2017

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