Matthes v The Nominal Defendant

Supreme Court of NSW|2021-02-09

Judgment

HER HONOUR: This is a judicial review of a decision of a Proper Officer of the State Insurance Regulatory Authority ("SIRA") under the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act").
By amended summons filed 15 August 2020, the plaintiff seeks: 1. an order under s 69 of the Supreme Court Act 1970 (NSW) setting aside the determination and reasons of Alexander Tilley in his role as Proper Officer of SIRA ("the Proper Officer") dated 9 June 2020; and 2. an order in the nature of mandamus remitting the matter to the second defendant for referral to a Review Panel of three Assessors.
The plaintiff is Patrick James Matthes. The first defendant is the Nominal Defendant ("the insurer"). The second defendant is SIRA. The third defendant is the Proper Officer. The second and third defendants filed submitting appearances. The parties relied upon their written submissions and a joint court book. The plaintiff also relied upon the affidavit of his solicitor dated 20 October 2020.

The Assessor's determination and reasons

On 11 February 2020, the Assessor re-assessed the plaintiff. On 14 February 2020, the Assessor issued his determination and reasons.
Although the Assessor's decision is not challenged in these proceedings, it informs the bases of review before the Proper Officer and is relevant to this judicial review. The Assessor's reasons in relation to the plaintiff's lower back injury are as follows.
Under the heading "History of Symptoms and Treatment Following the Motor Accident", the Assessor relevantly stated (CB 256): "As well as being followed up by the Orthopaedic Surgeon, [the plaintiff] also attended Guildford Medical Centre as required. After ceasing formal physiotherapy, he reported no further treatment or x-rays at the time of the first assessment. He did report though that over the last few months before the initial assessment he had developed some low back pain and that he was uncertain as to the cause of the pain. At the time he had not reported pain to his General Practitioner and has had no investigations or treatment. [The plaintiff] reported that he continues to have low back pain, which has gradually deteriorated over the last 9 months. The pain is now affecting his sleep. He has continued to attend Guildford Medical Centre and he has now reported the pain to his General Practitioner. He had a referral 3-4 months ago for a CT scan of the lumbar spine but stated that this has not been carried out to date. He reported that this was because he 'has not had the time'. Because the investigations have not been carried out, he has not returned to see the doctor and has had no treatment for his back."
Under "Findings on Clinical Examination", the Assessor relevantly continued (CB 257-8): "Examination of the lumbar spine revealed some mild midline tenderness as well as tenderness in the left sacroiliac joint. There was no evidence though of muscle spasm or guarding…. He did report though some back pain at end of range movement."
Under "Consistency of Presentation", the Assessor stated: "[The plaintiff's] presentation was again consistent with the history obtained and the documentation reviewed. I note that during the history taking that he confirmed that he was uncertain as to the reason he commenced having back pain in early 2019 some 3 ½ years after the accident."
The Assessor then relevantly summarised the medicolegal report of Dr Harrison, orthopaedic surgeon, dated 1 June 2017. This report, which had been provided in respect of the initial medical assessment, did not assess permanent impairment in relation to the lumbar spine.
The Assessor then set out the additional documentation provided for the further assessment. He summarised the further report of Dr Harrison as follows (CB 261): "Dr Harrison stated that [the plaintiff] now also has some manifestation of mechanical low back pain, which has increased whist he has been getting around doing his normal activities. Dr Harrison also theorised considering the violence of the accident in which he was involved and the element of an induced head or distal spinal torsional vibration and other forces that may well have engendered some damage to his lower lumbar spinal region to be responsible for the late onset and now ongoing experiences of low back pain. He therefore believed that the back pain could possibly [have] been associated with his original accident. Dr Harrison then assessed the lumbar spine as DRE Category 11 or 5% whole person impairment with presence of non-verifiable radicular symptoms in the left leg…"
The Assessor also summarised the additional medical report of Associate Professor Wong, general surgery consultant, stating (CB 261-2): "Dr Wong notes that in the original accident [the plaintiff] sustained a fracture to the medial side of his right ankle but makes no initial mention of either his right knee or right hip. He does state though that over the preceding 6 months he had developed pain in his low back. This would place the development of the low back pain at being nearly 4 years after the accident. I note that under examination Dr Wong also found that he walked with a normal gait and looked healthy. … With respect to the lumbar spine he reported localised tenderness at L5 with muscle guarding. He also referred to asymmetry of movement. I note that Dr Wong accepted his low back pain as being associated with the motor accident even though under his own history taking it did not start until some 4 years later. Under his assessment he found 5% whole person impairment for the lumbar spine due to asymmetry but unlike Dr Harrison found no neurological deficit in either lower extremity. …I note that my examination findings were different today from those of Dr Wong. I note interestingly as well that Dr Wong's findings were significantly different to those of Dr Harrison."
The Assessor relevantly concluded (CB 262): With respect to the new injury listed in today's list concerning his lumbar spine I note that at the very earliest it did not commence until 3 ½ years after the current motor vehicle accident. According to Dr Wong this could be as far as 4 years after the motor vehicle accident. I believe though that it is more likely 3 ½ as it was present when I assessed him in March 2019. There is no evidence in any of the contemporaneous medical documents of an injury to the lumbar spine. Additionally, I note that by the time he reported having back pain it was also noted that he had a normal gait. Whilst I have no doubt that this gentleman does have some low back pain, I do not believe that there is any causal relationship with his motor vehicle accident some 3 ½ years earlier."
Having set out his reasons, the Assessor again found the plaintiff to have injuries to his right ankle, right knee and scarring caused by the accident which give rise to a permanent impairment of 5% WPI.

The application for review to the Proper Officer

On 30 March 2020, the plaintiff filed an application for a review of the Assessor's decision. The application was only in relation to his lower back injury. The plaintiff sought a review on the basis that the assessment was incorrect in a material respect in failing to find that his lumbar spine injury was causally related to the accident.
The plaintiff's primary submissions were that the Assessor did not reveal a reasoning process for his finding in respect of the lumbar spine injury, save for the reference to the complaint not having been made 3½ years earlier.
The plaintiff relied on the opinions of Dr Harrison and Dr Wong, as summarised in the Assessor's report. The plaintiff submitted that the Assessor provided no reasons for rejecting of the opinions of Dr Harrison and Dr Wong as to causation, and failed to engage with the reasoning of Dr Harrison summarised in the Assessor's report.
It is the plaintiff's case that the Assessor appeared to have excluded any relationship between the motor accident and the lumbar spine injury solely on the basis that the complaint of back pain was made 3½ years after the accident. The plaintiff submitted that the delayed complaint, while relevant, should not have been determinative, especially in light of the differing medical opinions.

The insurer's submissions attached to the reply

The insurer made submissions in its reply to the plaintiff's application for review. It submitted that the further certificate of the Assessor was not incorrect in a material respect and sought for the application to be dismissed.
The insurer noted that the Assessor took a history from the plaintiff that he "had not reported pain to his General Practitioner and has had no investigations or treatment" in respect to the alleged lumbar spine injury. The Insurer submitted there is no contemporaneous evidence of any lumbar spine injury complained of to enable the Assessor to accept causation of the injury.
The Assessor had also taken a history from the plaintiff that he had referred himself in mid-2019 to obtain massage therapy for his lower back pain. The insurer submitted that the plaintiff's own delayed reporting of lower back pain and obtaining treatment by approximately 4 years after the accident confirmed that the Assessor was correct in determining the injury was not caused by it.
The Assessor had also addressed all the evidence provided for the further assessment, including the new evidence from Dr Harrison and Dr Wong. The insurer highlighted where the Assessor referred to the findings of each expert and comments on what was present at the assessment as well as differences between his findings compared to the plaintiff's experts. The insurer submitted that the Assessor provided his reasoning of why he did not accept the findings of the plaintiff's experts and did not err on his finding of causation.

The Proper Officer's decision

On 9 June 2020, the Proper Officer dismissed the plaintiff's application for review. In his reasons for the decision, the Proper Officer set out a background of the dispute and stated at [4] (CB 23): "4. Section 63 of the Act provides that if the Proper Officer is satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect, the review application will be accepted and referred to a Medical Review Panel."
He then set out the issues in dispute and the Assessor's reasons. He continued at [9]: "9. Before addressing whether I consider that reasonable suspicion of material error in the assessment and certificate are apparent, I have summarised the relevant points raised by the applicant and the reply."
The Proper Officer then summarised the parties' submissions as set out earlier in this judgment. Then, under the heading "Findings", he concluded at [18]-[32]: "18. Under 'Conclusions', continuing on to page 10 of the certificate, the Assessor notes a finding that the claimant presents with a 'mechanical injury and/or soft tissue injury' to the lumbar spine that was not caused by the motor accident. 19. In addressing the applicant's submission that the Assessor does not reveal a reasoning process for this conclusion, the respondent highlights relevant aspects of the history recorded in the certificate in respect of the claimant's lumbar spine injury. 20. Under 'History of Symptoms and Treatment Following the Motor Accident', on page 3 of the certificate, the Assessor notes the following description from the claimant regarding symptom onset: 'He did report though that over the last few months before the initial assessment he had developed some low back pain and that he was uncertain as to the cause of the pain. At the time he had not reported pain to his General Practitioner and has had no investigations or treatment.' 21. On the same page of the certificate, the Assessor notes that the claimant had been referred for a CT scan of the lumbar spine that had not been carried out at the time of the assessment. The Assessor notes on page 4 of the certificate that the claimant had undergone massage for his back and also notes that the claimant had not had any 'formalised physiotherapy'. 22. In addition to noting when the claimant's lumbar symptoms arose, the Assessor's documentation that the claimant was unsure of the cause of his back pain and had not undergone formal investigation or physiotherapy, at the time of the assessment, are relevant points on his path of reasoning. 23. The applicant refers to the Assessor's consideration of the reports of Drs Harrison and Wong and submits that the Assessor gives no reason for the rejection of those opinions as to causation of the back injury. 24. On page 8 of the certificate under 'Summary of Relevant Additional Documentation Provided for the Further Assessment', the Assessor notes both the medical and non-medical aspects of Dr Harrison's causation findings: 'Dr Harrison stated that he now also has some manifestation of mechanical low back pain, which has increased whilst he has been getting around doing his normal activities. Dr Harrison also theorised considering the violence of the accident in which he was involved and the element of an induced head or distal spinal torsional vibration and other forces that may well have engendered some damage to his lower lumbar spinal region to be responsible for the late onset and now ongoing experiences of back pain. He therefore believed that the back pain could possibly been associated with his original accident. Dr Harrison then assessed the lumbar spine as DRE Category 11 or 5% whole person impairment with presence of non-verifiable radicular symptoms in the left leg. He assessed the right hip as giving 3% whole person impairment due to trochanteric bursitis but did state that his gait was normal at the time of examination. I note from Table 64 of the 4th Edition of the AMA Guides that the 3% for trochanteric bursitis, which is chronic, can only be given if there is an abnormal gait.' 25. On page 9 of the certificate, the Assessor summarises Dr Wong's findings regarding the claimant's lumbar spine, including the following: '...He does state though that over the preceding 6 months he had developed pain in his low back. This would place the development of the low back pain at being nearly 4 years after the accident. I note that under examination Dr Wong also found that he walked with a normal gait and looked healthy.... ... With respect to the lumbar spine he reported localised tenderness at L5 with muscle guarding. He also referred to asymmetry of movement. I note that Dr Wong accepted his low back pain as being associated with the motor accident even though under his own history taking it did not start until some 4 years later. Under his assessment he found 5% whole person impairment for the lumbar spine due to asymmetry but unlike Dr Harrison found no neurological deficit in either lower extremity.' 26. I agree with the respondent that the Assessor addresses the findings documented in both doctors' reports, compared to his own. The Assessor also concludes his summary of evidence with the observation that 'I note interestingly as well that Dr Wong's findings were significantly different from those of Dr Harrison'. 27. The Assessor notes how the findings of Dr Wong relevantly differ from his own under 'Diagnosis and causation' on pages 9 and 10 of the certificate: 'With respect to the new injury listed in today's list concerning his lumbar spine I note that at the very earliest it did not commence until 3 1/2 years after the current motor vehicle accident. According to Dr Wong this could be as far as 4 years after the motor vehicle accident. I believe though that it is more likely 3 1/2 as it was present when I assessed him in March 2019. There is no evidence in any of the contemporaneous medical documents of an injury to the lumbar spine. Additionally, I note that by the time he reported having back pain it was also noted that he had a normal gait. Whilst I have no doubt that this gentleman does have some low back pain, I do not believe that there is any causal relationship, with his motor vehicle accident some 31/2 years earlier.' 28. In addition to referring to the passage of time before the claimant presented with lower back pain, the Assessor also refers to the lack of any contemporaneous evidence of an injury to the lumbar spine. The Assessor also notes the claimant's 'normal gait' when lower back pain was reported. This conclusion does not support the applicant's submission that only the interval between the accident and the onset of symptoms was determinative in the Assessor's reasoning. 29. The respondent submits that the Assessor provided his reasoning as to why he did not accept the findings of the report writers. I agree. The Assessor has considered the contemporaneous medical documents and has engaged with the opinions of other medical experts in providing reasoning for coming to his own conclusions on causation. 30. The applicant submits that no explanation other than the motor accident has been provided by any doctor (or the Assessor) for the claimant's lower back complaints. Clause 1.7 of the Guidelines requires the Assessor to determine whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The respondent submits that the Assessor has complied with the relevant clauses of the Guidelines regarding causation. I agree. The Assessor has made a finding on causation of the claimant's lumbar spine injury in relation to the motor accident, supported by his own path of reasoning. 31. The applicant has not satisfied me that there is reasonable cause to suspect that the assessment is incorrect in a material respect. The section 63(3) test has not been met. CONCLUSION 32. Accordingly, as to this review application, I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect."

The "gatekeeper" function under s 63(3) of the MAC Act

Section 63(3) of MAC Act gives the Proper Officer a "gatekeeper" function in the consideration of applications for review to a Review Panel. Section 63 relevantly states: "63 Review of Medical Assessment by Review Panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. …"
In relation to s 63(3) of the MAC Act, counsel for the plaintiff referred to two cases: Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 ("Meeuwissen") and Elliott v Insurance Australia (t/as NRMA Insurance) [2014] NSWSC 1848 ("Elliott").
In Meeuwissen, the Court of Appeal (per Basten JA with Beazley P and Sackville AJA agreeing) set out the principles which inform judicial review of a proper officer's function at [19]-[24]. They may be summarised as follows: 1. The question of correctness relates not to the certificate which results from the medical assessment, but to the medical assessment itself. 2. The phrase "in a material respect" in s 63(3) of the MAC Act is not as precise as the statutory test fixed by s 62(1A) concerning referrals for further assessment. 3. It is generally accepted that the phrase "in a material respect" means "the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been, or might have been, different": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ("Bond") at 353. 4. The question of materiality connoted by that phrase extends to errors that could not be dismissed "as trivial, insignificant or immaterial". 5. The power conferred on the proper officer is not discretionary once the requisite state of satisfaction is achieved. If that occurs, the matter has to be referred for review. 6. It is not for the proper officer to decide whether the medical assessment is incorrect in a material respect, but only that there is reasonable cause to suspect that it is.
Finally, in Meeuwissen, the Court of Appeal held at [24] that the power conferred on the proper officer is that of a gatekeeper, not a decision-maker. Basten JA continued: "[24] …Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts."
In Elliott, Campbell J stated at [59]-[62]: "[59] It is likely that a state of satisfaction that there is reasonable cause to suspect that the assessment was incorrect need not rise above anything other than a state of unease on the part of the proper officer about the correctness of the assessment reading the assessor's reasons and considering the applicant's criticisms of them. It may be, as I have said already, that taking the accumulation of various complaints together might produce that state of uneasiness in a way which is not apparent when one considers each particular individuality. The weight of the whole argument may be greater than the sum of its parts. [60] Moreover, I am of the view that the proper officer, with respect, has overstated his role if one has regard to what Basten JA said at [23] of Meeuwissen. It is not for the proper officer to decide the correctness of the assessment. That decision is made in appropriate cases by the review panel and in making that decision the review panel is not restricted to the particulars set out in the application for a review. Rather the review panel is bound to carry out a new assessment of all the matters with which the medical assessment was concerned. Given that there are valuable rights at stake it is worth repeating what Basten JA said at [23] that 'Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed.' The reason for that is that 'the injured person is entitled to a decision reached in accordance with a proper understanding of the statutory scheme and the facts'. It seems to me that the proper officer has sought to impute the phrase 'in a material respect' with too high a degree of precision. [61] Really the emphasis is on whether there is a reasonable ground for the relevant suspicion, and given the significant inconsistency which the proper officer identified, as I have said, it was a misconception of his proper role for him to then decide in fact whether or not the correction of that error would make a difference. [62] I am satisfied that the plaintiff has demonstrated jurisdictional error in the exercise of the proper officer's function particularly by him posing the wrong question for determination."
Also, in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 ("Ballas") (per Bell P and Payne JA with Emmett AJA agreeing), the Court of Appeal stated at [70]-[72]: "[70] In both written and oral submissions, Senior Counsel for Ms Ballas contended that the Delegate misconstrued the 'gatekeeper' nature of the task ascribed by s 327(4) to the Registrar. He submitted that the Delegate, rather than looking to whether the appeal grounds were capable of being made out, proceeded to determine the appeal. An analysis of the Delegate's language lends strong support to this submission. Thus phrases such as 'I do not accept that…' (see [25] of the Delegate's decision extracted at [37] above) and 'I am not satisfied that the AMS has made the assessment based on incorrect criteria or that there is a demonstrable error on the face of the MAC' (see [29] of the Delegate's decision) both have the tone of final determination. [71] Certainly, the Registrar did not express herself in terms of whether Ms Ballas' proposed grounds of appeal were capable of, in the sense of having the potential to be, made out. Dr Allars sought to counter this argument by stating that it followed from the conclusory language in which the Registrar expressed herself that she must have necessarily formed the opinion that the proposed grounds were not capable of being made out. In other words, a conclusion that something is not made out must carry with it an implicit conclusion that it is not capable of being made out. [72] The fallacy with this submission is that it reasons backwards from the non-expert conclusion that the Delegate was not authorised (or qualified) to reach. An assessment of arguability, to adopt and adapt the language of Gleeson JA in Vannini, is a very different exercise, as the Registrar or his or her Delegate is required to make that assessment 'on the face of the application, and in any submissions made to the Registrar': at [19]. It involves an assessment and satisfaction that an argument to support the nominated grounds is manifest in those two documents. If it is, that argument passes the gatekeeper and goes to the expert Appeal Panel. This process does not involve the Delegate in assessing the correctness of the argument but simply that what has been put forward is arguable."

The grounds of judicial review

The grounds of judicial review are on the basis that the Proper Officer: 1. made a jurisdictional error in dismissing the plaintiff's application; 2. erred by failing to find that there was reasonable cause to suspect that that the relevant medical assessment was incorrect in a material respect; 3. erred by failing to adhere to the "gatekeeper role" assigned to him, and instead embarked on a review of the substantive merits of the application; 4. misapplied the statutory requirements of s 63(3) of the MAC Act; and 5. on a proper exercise of the jurisdictional requirements of s 63(3), should have referred the plaintiff's application to a Review Panel.
Before I turn to consider these grounds of review, it is worth repeating the caution recently expressed in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 ("Chan") per Leeming JA (Gleeson JA agreeing) at [41]-[47] that close attention must be given to the formulation of grounds of review in compliance with r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW). Although Chan was published after the hearing of these proceedings, the Court has repeatedly emphasised that the conflation of jurisdictional error and error of law on the face of the record is to be avoided.
In the pleadings in this case, the plaintiff's reference to "erred" appears largely to be a reference to jurisdictional error, or in relation to ground 4, an error of law on the face of the record. Ground 2, however, impugns the discretion of the Proper Officer and trespasses into an alleged of error of fact, which is not subject to judicial review in this Court: see Chan at [47]. I will consider these issues as they arise later in this judgment.
Although phrased differently, the plaintiff's grounds of judicial review broadly raise two main issues. They are: 1. whether the Proper Officer acted in excess of his statutory duty pursuant to s 63(3) of the MAC Act; and 2. whether his decision was otherwise made according to law.
I will now consider these issues in turn.

Did the Proper Officer act in excess of the "gatekeeper" function under s 63(3)?

The plaintiff submissions

The plaintiff submitted that the Proper Officer's role was not to decide whether the medical assessment was incorrect in a material respect, but only that there was reasonable cause to suspect that it was. It is the plaintiff's case that the Proper Officer went beyond exploring the matter of the basis of reasonable suspicion under s 63(3) of the MAC Act, and instead determined the matter by stating simply whether he "agreed". The plaintiff argued that the Proper Officer fell into the type of jurisdictional error described in Shmailov v AAI Limited [2020] NSWSC 887 ("Shmailov"), where the proper officer's decision constituted her own determination of the merits of the application.
The plaintiff submitted that applying the principles enunciated in Meeuwissen, jurisdictional error has occurred in the exercise of the statutory task assigned to the Proper Officer. Once the requisite state of satisfaction is achieved, the matter must be referred for review. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts.

The insurer's submissions

The insurer submitted that the Proper Officer's decision demonstrates that he did apply the correct test and did not overstep the limits of his role. The Proper Officer repeatedly used the proper phrasing of the test from s 63(3) of the MAC Act. Reciting the proper test may not be sufficient if, in substance, the Proper Officer has applied a different test. However, the fact that the correct test has been stated is relevant to the consideration of whether the correct test has been applied. As Bell P stated in IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767 ("Chahoud") at [62]: "In my view, the statements of the proper officer challenged by IAG, when read in the context of her decision as a whole, do not demonstrate that she applied the wrong test. True it is that a formulaic recitation of a statutory test is not conclusive evidence that the test as stated has in fact been applied. However, as Mr Chahoud pointed out, the proper officer referred to the correct test on more than one occasion."
The insurer also sought to distinguish this case from Shmailov, as referred to by the plaintiff. In that case, the Proper Officer had fallen into error by considering whether she agreed that the medical assessment was, in fact, incorrect, rather than considering whether there was reasonable cause to suspect it was. This is because the Proper Officer had gone beyond the gatekeeper role and attempted to apply the relevant Permanent Impairment Guidelines herself so as to determine whether the criteria for certain impairment was satisfied.
No such error occurred here. The Proper Officer did not attempt to make an assessment of the plaintiff's impairment himself. Quite to the contrary, the task that he performed was simply to consider whether he was satisfied that there was reasonable cause to suspect that the assessment of the Assessor was incorrect in a material respect. He was not so satisfied, as his reasons properly evince.
Finally, the insurer submitted that although it may be that the satisfaction of the Proper Officer need not rise above a state of unease as to the correctness of the decision, there is no evidence that the Proper Officer had even that base level of unease, and there is no logical basis for submitting that he ought to have had such a state of unease. Accordingly, it was more than open to the Proper Officer to conclude that he was not satisfied that there was reasonable cause to suspect material error.

Consideration

At paras 4 and 9 of his reasons, the Proper Officer correctly set out the statutory test from s 63(3) of the MAC Act before turning to consider the parties' submissions and the Assessor's reasons. At para 32 of his reasons, the Proper Officer reiterated the proper statutory language in stating that he was "not satisfied that there was reasonable cause to suspect that the Assessor's decision was incorrect in a material respect".
At the hearing of these proceedings, counsel for the plaintiff submitted that despite his references to the statutory test, the Proper Officer's reasoning reveals that he misunderstood his statutory task. Mere reference to the proper test will not be sufficient if the reasons evince that the Proper Officer did not apply it: Chahoud at [62].
In support of this contention, the plaintiff referred to the Proper Officer's reasons at para 26, where he stated, "I agree with the respondent that the Assessor addresses the findings documented in both doctors' reports, compared to his own". At para 29, the Proper Officer continued, "The respondent submits that the Assessor provided his reasoning as to why he did not accept the findings of the report writers. I agree." As to the issue of causation, at para 30 the Proper Officer stated, "The respondent submits that the Assessor has complied with the relevant clauses of the Guidelines regarding causation. I agree. The Assessor has made a finding on causation of the claimant's lumbar spine injury in relation to the motor accident, supported by his own path of reasoning."
It is the plaintiff's case that these passages reveal jurisdictional error of the type discussed in Meeuwissen and Shmailov. In that case, the proper officer considered an application for review of a decision involving the categorisation of the plaintiff's impairment on a rating scale. In addressing the parties' submissions, the proper officer had stated, "I do not agree". She then continued to apply those categories herself to the plaintiff's evidence, and expressed her view that he maintained the level of impairment as categorised by the Assessor.
In considering the proper officer's decision on judicial review in this Court in Shmailov, I expressed the view that it was not the proper officer's task to assess whether the claimant satisfied certain criteria of impairment (at [101]), and that by doing so she acted in excess of her statutory role under s 63(3) of the MAC Act and fell into jurisdictional error.
However, in my view the decision of the Proper Officer in these proceedings is not analogous to Shmailov. Although the Proper Officer's language of agreement hollowly mirrors that of the proper officer in Shmailov, the content of his reasoning does not. In this case, the Proper Officer at [26], [29] and [30] has expressed his agreement with the parties' submissions by reference to their arguments. He has not, as in Shmailov, purported to determine the matter as if it were before him for assessment. By reference to the material before him, the Proper Officer explained why he did not reach the requisite suspicion that the Assessor's decision was incorrect in a material respect. This is exactly what the Proper Officer was required to do in considering applications under s 63(3) of the MAC Act. His reasons disclose no jurisdictional error on this ground of review.

The plaintiff's submissions

The plaintiff submitted that his application before the Proper Officer advanced a cogent argument that the Assessor did not engage with his medico-legal case as to causation of his lower back injury. It was not for the Proper Officer to determine the matter on the basis that he did not agree. Rather, the Proper Officer was required by the statute to exercise his gatekeeper role.
The plaintiff says that in this case, there was clear reason to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application. That state of satisfaction "…need not rise above anything other than a state of unease": see Elliott per Campbell J at [59]. The plaintiff says his review application comfortably overcame the undemanding threshold.
The plaintiff also argued that the alleged errors in the Assessor's decision were material in the sense that they contributed to it so that, but for the error, the decision would have or might have been different. Neither could the identified errors be dismissed "as trivial, insignificant or immaterial": Meeuwissen at [25].
The plaintiff submitted that he has been denied the benefit of having his review application dealt with by a properly constituted and suitably qualified medical review panel.

The insurer's submissions

The insurer submitted that in considering the exercise of the supervisory jurisdiction in judicial review, an overriding principle is that administrative decision makers are entitled to a beneficial construction. Their decisions must be read fairly and as a whole: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291-292. Further, there is no error of law in making findings that are reasonably open to be made, even where other findings may have been open on the evidence.
The insurer submitted that review proceedings with respect to the determination of a proper officer "are limited to determining whether the Proper Officer's opinion has been properly formed according to law": QBE v Miller [2013] NSWCA 442 ("Miller") per Basten JA at [36]; Buck v Bavone (1976) 135 CLR 110 at 118-119 (per Gibbs J).
In Miller at [36], Basten JA cited Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432: "If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."
Although Miller involved an application for further medical assessment under s 62 of the MAC Act, it has been applied to a s 63 decision regarding an application for review of a medical assessment in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171.
The insurer submitted that the plaintiff made three broad submissions in its application for review before the Proper Officer. The first was that the Assessor had not provided sufficient reasons for his finding in relation to causation of the lumbar spine, and that he did not give reasons for rejecting the opinions of Dr Harrison and Dr Wong. However, the insurer submitted that all that was required of the Assessor was to provide reasons that revealed his actual path of reasoning used to arrive at the findings concluded: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot") at [55]. The insurer submitted that the Assessor's reasons met this standard. He considered that the plaintiff's lower back problems did not commence until 3 ½ years after the accident; that he didn't know the reason for his back pain; and that he had a normal gait when the back problems commenced. On this basis, he concluded that the back injury was not related to the accident.
The plaintiff's second broad submission before the Proper Officer was that the Assessor improperly treated as determinative the absence of any complaints concerning the lumbar spine for 3 ½ years after the accident. The insurer submitted that by so doing, the plaintiff appears to have sought a review based on the type of error identified in Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 ("Owen"), Bugat v Fox [2014] NSWSC 888 ("Bugat"), and AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen ("McGiffen") [2016] NSWCA 229, which is the error of treating the absence of contemporaneous record of injury as determinative of the issue of causation.
The insurer submitted that this is not such a case. The authorities that have considered whether it is an error to treat the lack of contemporaneous evidence of complaint of injury as determinative of the issue of causation largely concern situations where the injured person said they had the injury, but the early records do not reflect those complaints. In this respect, Campbell J said in Owen, at [52]: "Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the review panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]. The medical histories were taken in furtherance of a purpose which is not identical with the purpose of resolving the medical assessment matter before the review panel: Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Mason v Demasi [2009] NSWCA 227 at [2] and Gulic v O'Neill [2011] NSWCA 361 at [24]. These statements were made in the context of the exercise by the Court of Appeal of its powers of rehearing pursuant to s 75A Supreme Court Act 1970. But they are apposite to the exercise by the review panel of its powers under s 63 of the Act, especially subs (3A). In my judgment the identification of this wrong issue was jurisdictional error."
A similar situation arose in Bugat, where Hulme AJ stated at [31]: "One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff's statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered 'pain in her neck going out to both shoulders'."
Again, the insurer submitted that this is not such a case. There is no suggestion that the plaintiff had problems with his back following the subject accident that were simply not recorded in the evidence. It was the plaintiff's own evidence to the Assessor was that the back problems commenced some 3 ½ years after the accident.
In any event, it is quite plain that the Assessor was not concerned only with "contemporaneous" record of injury. Indeed, he considered whether there was any complaint of injury at all, reported or recorded, for the relevant period after the accident.
In McHenry v Insurance Australia Limited (t/as NRMA Insurance) [2019] NSWSC 68 ("McHenry"), Harrison J said at [59]: "As referred to above, the review panel specifically indicated, on the question of causation of the back injury, that there was 'an absence of complaint in the months following the accident'. I take that comment to mean that the review panel was not fixated upon contemporaneity, in the sense of a complaint restricted to the time immediately upon presentation to the hospital, but were prepared to consider the significance of the emergence of signs or symptoms for or during a period of some months thereafter."
His Honour continued in McHenry at [62]: "It is not in my opinion clear, as Ms McHenry asserts, that the review panel relied upon the absence of contemporaneously recorded complaints as decisive, or as a more significant factor than all others, or as a factor to which undue weight was given, in assessing the existence of a causal connection between her back injury and the motor vehicle accident. The documentary history extends far beyond the time of her admission to hospital: Ms McHenry did not raise any problems with her back for nearly three years following the accident. The absence of an original contemporaneous complaint as well as the lateness of complaint are matters of fact which in combination the review panel is perfectly entitled to take into consideration. It would be unrealistic to exclude such matters from the review panel's assessment. Both the absence of complaint and the lateness of complaint would also appear in this case to have been persuasive, something that appears to me to be unexceptionable from the review panel's point of view, having regard to the medical experience and expertise that its members are required and entitled to bring to their task. To say that a matter is persuasive, however, is not to say that it was decisive. The review panel also took a history from Ms McHenry which failed to include any reference to a back complaint and it examined her as requested. I do not consider that it can be said that the panel have shown, far less clearly shown, that they have regarded what they perceived as the absence of contemporaneous evidence of complaint of a back injury as determinative on the issue of causation of that injury."
As Adamson J said in Bradley v Insurance Australia Ltd (t/as NRMA Insurance) [2015] NSWSC 950 ("Bradley") at [55]: "That the Review Panel gave weight to contemporaneous clinical notes was unexceptional and reflects the well-known reliability of such records: see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 548F-549D per Hope JA and Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431 per Lord Pearce; cf. Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA."
The insurer submitted that on this basis, the Assessor was entitled to take the delay of any complaint for more than 3 years into consideration. He did this in conjunction with having regard to the fact that the claimant had no explanation for the onset of back pain, and that the claimant's gait was normal at the time.
The insurer submitted that this last point is significant, noting that in McGiffen, the reason the review panel had fallen into error was in failing to consider whether there was a consequential back injury related to gait derangement. The Court said, at [64]: "The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the 'gait derangement', itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident?"
The insurer noted that that same question was addressed in these proceedings by the Assessor. He considered whether there was a cause of the back pain other than an immediate injury in the subject accident.
In this way, his path of reasoning revealed that he was not able to find a causal link between the accident and the onset of back pain some 3.5 years later. The insurer submitted that there was no error in his conclusion in this regard.
Finally, the insurer submitted that the third alleged error for consideration before the Proper Officer was that the Assessor failed to engage with the report of Dr Harrison. In relation to this ground, the insurer noted that the plaintiff did not point to the source of the alleged duty on the Assessor to "engage" with that opinion. It is well settled that there is no obligation to consider or refer to every piece of evidence: Rodger v De Gelder [2015] NSWCA 211 at [84]-[86]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 ("Cervantes") at [15]-[22].
In Cervantes, Basten JA said at [22]: "The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]."
In any event, the insurer submitted that it is plain on the face of the Assessor's reasons that the reports of Dr Wong and Dr Harrison were in fact referred to and considered beyond the Assessor's duty to do so. There was certainly no onus on the Assessor to specifically address why he did not come to the same conclusions as those doctors as to causation of the back injury. To suggest that he did would be to go directly against what the High Court said in Wingfoot at [56]: "The application of that judicial standard in circumstances where an affected party had provided to the Medical Panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the Medical Panel itself did not accord with those opinions, meant that "it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them". Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else."
Even though the Assessor's decision is not challenged, the insurer submitted that the errors that the plaintiff alleged to the Proper Officer were not made out.
The insurer submitted that the plaintiff appears to assert that simply putting cogent arguments to the Proper Officer regarding what the plaintiff contends to be errors in the Assessor's decision ought to be sufficient to achieve "satisfaction" the mind of the Proper Officer as to the correctness of those arguments. This submission must be rejected, as it leaves no room for the Proper Officer to reach the necessary state of "satisfaction" as set out in the MAC Act.

Consideration

The plaintiff has raised general grounds of review to the effect that the Proper Officer "erred" by failing to find that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. Insofar as these grounds purport to challenge the Proper Officer's decision of fact, and not a misapplication of his statutory duty under s 63(3) of the MAC Act, they can be dealt with briefly.
It is true that the power conferred on the Proper Officer is not discretionary once the requisite state of satisfaction is achieved, at which point the matter has to be referred for review: Meeuwissen at [23]. However, whether there is reasonable cause to suspect that the medical assessment is incorrect in a material respect, such that the Proper Officer reaches the requisite state of satisfaction, is a matter for the Proper Officer's discretion and a question of fact.
I have already determined that the Proper Officer reached the requisite state of satisfaction under s 63(3) of the MAC Act. To challenge that decision, the plaintiff bears the onus of demonstrating that in the Proper Officer's opinion was not properly formed according to law: see Miller at [36]. It is not enough for the plaintiff to submit that a different determination could or should have been reached on the evidence. In a judicial review in this Court, even if the Proper Officer was wrong in reaching this state of satisfaction as a matter of fact, that alone would not vitiate his decision: Chan at [66]. Rather, the plaintiff must demonstrate that "the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 ("SGLB") at [38] (Gummow and Hayne JJ), as applied in Miller at [36].
As such, the plaintiff's submissions that his application "comfortably overcame" the statutory threshold under s 63(3), such that it should have created a state of unease in the mind of the Proper Officer, are misguided. It appears to be his position that because his application set out a "cogent argument" that the Assessor's decision was incorrect in a material respect, it was entitled to be referred to an Appeal Panel. As the insurer submitted, this reasoning would supplant the role of the Proper Officer in reaching the requisite state of satisfaction.
It is also relevant to this judicial review that the plaintiff has not sought to challenge the Assessor's decision. It is not for this Court to determine whether that decision contains the errors alleged in the plaintiff's application before the Proper Officer. However, I have set out the Assessor's reasons earlier in this judgment so as to provide context to the Proper Officer's decision in relation to it, which is as follows.
The plaintiff's application before the Proper Officer firstly alleged that the Assessor gave insufficient reasons for finding that the injury was not caused by the accident. In addressing this ground, the Proper Officer explained that the Assessor considered that the plaintiff's lower back problems did not commence until 3 ½ years after the accident; that he had not undergone formalised therapy; that he didn't know the reason for his back pain; and that he had a normal gait when the back problems commenced. The Proper Officer was satisfied that each of these constituted "relevant points on his path of reasoning" (at [22]).
As to the plaintiff's submission that the Assessor did not explain why he rejected of the opinions of Dr Harrison and Dr Wong as to causation, and that he failed to engage with the reasoning of Dr Harrison, the Proper Officer noted at [26] that the Assessor had "address[ed] the findings documented in both doctors' reports, compared to his own". The Proper Officer stated at [26]-[27] that the Assessor had also concluded by noting with interest that "Dr Wong's findings were significantly different from those of Dr Harrison", before comparing Dr Wong's findings with his own.
In Wingfoot, the High Court addressed the obligation of medical review panels (and Assessors) to refer to differing medical opinions at [47], stating: "[47] 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."
This bolsters the Proper Officer's conclusion at para 29 that in his view, the Assessor "considered the contemporaneous medical documents and…engaged with the opinions of other medical experts in providing reasoning for coming to his own conclusions on causation".
Finally, the plaintiff alleged that the Assessor had treated the absence of contemporary complaints of his injury as determinative on the issue of causation. In his decision, in addition to the material already considered, the Proper Officer stated at para 28 that the Assessor had noted the plaintiff's "'normal gait' when lower back pain was reported". The Proper Officer stated that "This conclusion does not support [the plaintiff's] submission that only the interval between the accident and the onset of symptoms was determinative in the Assessor's reasoning". Rather, it was a conclusion reached on the basis of all of the material before the Assessor, which he was entitled to consider persuasive in the exercise of his medical discretion.
For these reasons, in my view it cannot be said that the Proper Officer's determination that he was not satisfied that the assessment was incorrect in a material respect was a decision which was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. Rather, it was a decision which was open to him on the particulars set out in the application. As such, the Proper Officer's decision discloses no jurisdictional error or error of law on the face of the record.

Result

The result is that the plaintiff's judicial review fails.

Costs

Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs on an ordinary basis.

The Court orders that: 1. The amended summons filed 15 August 2020 is dismissed. 2. The plaintiff is to pay the first defendant's costs on an ordinary basis.

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: 05 March 2021

(2020) 102 NSWLR 783

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