McHenry v Insurance Australia Limited t/as NRMA Insurance

Supreme Court of NSW|2019-02-01|Before: Harrison J

Motor Accidents Compensation Act - relevant provisions

Part 3.4 of the Act is concerned with medical assessment. "Medical assessment matters" are defined in s 57 to mean any of the matters referred to in s 58. That section provides as follows: "58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as 'medical assessment matters'): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor."
Medical assessors are defined as persons appointed under Part 3.4 to make medical assessments under that Part. Pursuant to s 59, the Authority is required to appoint medical practitioners and other suitably qualified persons to be medical assessors. Section 63 provides for the referral of a medical assessment by a single medical assessor for review by a panel of medical assessors. That section is in the following relevant terms: "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. (2A) … (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. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned."
The assessment of the degree of permanent impairment of an injured person as a result of an injury caused by the motor vehicle accident assumes importance having regard to the terms of s 131 which provides as follows: "131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%."

Ms McHenry's submissions

Ms McHenry maintained that there are a number of jurisdictional errors and/or errors on the face of the record in the making of the referral decision and the review panel decision. Alternatively, the proper officer and/or the review panel constructively failed to exercise his or their statutory power in making the referral decision and the review panel decision.
First with regard to the referral decision, Ms McHenry contended that the proper officer wrongly fixated on the alleged absence of contemporaneous evidence relating to her back injury in circumstances where Dr Lewington not only had many documents before him but where he also took a history at the medical examination. That history included the history of injury to her back in the motor vehicle accident. Ms McHenry contended that the proper officer impermissibly treated the contemporaneous medical material, or more particularly the absence of contemporaneous complaint recorded in it, as a decisive or determinative factor. I was referred in this respect to what was said in Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650 at [50], Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 at [31] and Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [109]. Ms McHenry further contended that the proper officer sought impermissibly to rely solely on contemporaneous medical material and not upon the case she presented, including her own evidence. This contention included an allegation that the proper officer placed disproportionate weight on what was said to be the lack of contemporaneous documentation regarding Ms McHenry's back injury, by reason of which the decision is said to be unreasonable. The proper officer is said also to have failed to take into account a relevant consideration, namely that Ms McHenry provided an oral history of back pain directly to Dr Lewington.
Secondly with respect to the review panel decision, Ms McHenry contended that it erred by failing to apply itself to the real question to be decided in carrying out its function under s 58(1)(d) of the Act, because it misunderstood a significant body of evidence relevant to its determination, thereby invalidating the decision. Ms McHenry asserted that there was evidence of a contemporaneous complaint of injury to her back, consistent with her oral history given to Dr Lewington as well as to the review panel itself. The review panel was required to have regard to it but wrongly failed to do so. Here the review panel impermissibly sought to rely solely on selective contemporaneous medical material to the exclusion of Ms McHenry's own evidence. These things are said to have amounted to a wrongful fixation upon the apparent absence of contemporaneous evidence, which the review panel treated as decisive or determinative. Ms McHenry once again emphasised the application of the cases referred to previously.
Ms McHenry submitted that the only possible conclusion on the face of the reasons of the review panel is that it wrongly failed to examine or consider or engage with her emergency department records that formed part of the documentary material in the John Hunter Hospital records. These records were before the review panel as well as Dr Lewington and Dr Kenna. Ms McHenry submitted that this amounted to illegality as being unreasonable in a legal sense, in accordance with the categories described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

NRMA Insurance Ltd's submissions

With respect to the referral decision, the insurer maintained that the proper officer did not fixate upon the absence of contemporaneous documentation evidencing complaints by Ms McHenry. The insurer submitted that it was clear from the proper officer's reasons that what concerned him was the fact that Dr Lewington's "actual path of reasoning [was] not clear". The insurer relied upon the well-known statement of principle in Wingfoot Australia Partners Pty Lyd v Kocak (2013) 252 CLR 480; [2013] HCA 43: "[55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
The insurer specifically submitted that the history taken from Ms McHenry by Dr Lewington was not that she sustained an injury to her lower back in the motor vehicle accident but that "she complained of neck and back pain following" it. The insurer submitted that the history did not include an indication of when the back pain was first experienced after the accident. In his review of the documentation, Dr Lewington referred to records from the John Hunter Hospital but not to any emergency department records. He made no reference at all to contemporaneous documents. Dr Lewington made reference to "contemporaneous records of a soft tissue back injury as caused by the motor accident" but did not explain what those records were. The insurer maintained in these circumstances that Dr Lewington's conclusions were unexplained and that it was open to the proper officer to find that he had not given sufficient reasons to expose his actual path of reasoning.
Conversely, the proper officer did not place undue or disproportionate weight on the alleged lack of contemporaneous documentation: it was simply one matter that was taken into account by the proper officer in forming his opinion that Dr Lewington had not given proper reasons. The insurer maintained that the proper officer was entitled to do so in coming to his conclusion: see, for example, Bradley v Insurance Australia Ltd (2015) 71 MVR 496; [2015] NSWSC 950 at [55].
The insurer maintained that in any event the decision of the proper officer did not turn on whether there was or was not any contemporaneous documentation or whether it was determinative of any injury suffered. His decision was that Dr Lewington had not properly explained his path of reasoning so that there was reasonable cause to suspect that the assessment was incorrect in a material respect.
A different proposition was also advanced by the insurer upon the basis that even accepting the existence of error, it would be appropriate to refuse relief on discretionary grounds. The insurer relied upon what was said by Basten JA in Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171: "[7] Where the proper officer refuses to grant a review on the basis of a legal misunderstanding as to the scope of his or her powers, there may well be grounds for judicial review of that decision. Its effect may be to deny a claimant an opportunity to obtain damages for non-economic loss. However, when the error is said to have resulted in the failure of the proper officer to refuse a referral, the legal consequences are quite different. If the basis of her suspicion had been misconceived, one would expect that misconception to be identified by the review panel, which would dismiss the application and confirm the original certificate of assessment. A judge faced with a judicial review application in such circumstances, at least where the bona fides of the proper officer was not in question, would have strong reasons for rejecting the application on discretionary grounds."
With respect to the review panel's decision, the insurer noted that its role was to perform the assessment afresh: s 63(3A), Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39. The insurer re-emphasised the proposition that it is not an error simply to give some weight to the presence or absence of contemporaneous evidence. An error will only have been made in this case if the presence or absence of such material has been treated by the appeal panel as determinative on the issue of causation. Whereas an absence of contemporaneous material cannot by itself be determinative, it can nevertheless be highly probative and accordingly something which the review panel was entitled to take into account. The insurer submitted that a finding that there was no contemporaneous evidence of a causally related back injury was open to the review panel.
Taking account of the particular sources of information to which the review panel had regard, the insurer made the following observations. First, Ms McHenry's history recorded by the review panel was relevantly in these terms: "Ms McHenry said that the diagnoses included bruising of her right knee, right shoulder and her whole right leg, and she required 10 stitches in a laceration of her scalp. She said that she developed a severe haematoma over the left hip over the next couple of days, and a few days after her discharge she was re-admitted and had an operation to excise the haematoma from her left greater trochanter region (indicated). Ms McHenry said that most of her injuries seemed to be on the right side of her body except for the severe bruising over the left hip. She said having gone home from the hospital she spent the next few weeks mainly in bed, on sick leave, but then had run out of sick leave and thus returned to work. She said that she was in great pain everywhere. She said that she can't really remember or localise what hurt because 'everything hurt'. She was referred to physiotherapy, and her neck was treated, and she couldn't recall who had made the referral, whether her General Practitioner or the orthopaedic surgeon from the John Hunter Hospital. In fact, however, physiotherapy made the pain worse and she thus ceased physiotherapy. Bowen Therapy was advised, and refused (the Panel notes a MAA Certificate of Assessor Myers, dated 28.2.2011) in this regard. She had some chiropractic therapy. Ms McHenry said that 'almost everything' that she requested was refused, except for Laser Vein treatment for her right leg. She said that she has stopped seeing doctors regarding her injuries. She said that gradually she learnt to 'deal with the pain', but she does depend upon medication. She said that her pain is slowly deteriorating. She said that, for example, her right shoulder had previously been painful in an intermittent fashion, but over the last few months has got much worse."
The insurer contended that it was noteworthy that Ms McHenry recounted the diagnoses made at the hospital, including right shoulder, right leg, left hip and scalp but made no mention of any problems with her back.
Secondly, the insurer noted that the review panel conducted a review of the documentation that was before it, but emphasised that the John Hunter Hospital records did not contain references to back pain.
Thirdly, the review panel found that there were early complaints to Ms McHenry's general practitioner of coccygeal pain, but not of back pain.
Fourthly, Ms McHenry did not complain of either back pain or coccygeal pain when assessed by the review panel, but only of loin pain. The insurer submitted in this respect that it was significant that this was also the pain of which Ms McHenry complained as back pain in her application for assessment of her injuries, as indicated in the review panel's deliberations set out earlier in these reasons.
Finally, the insurer noted that documents such as the claim form, John Hunter Hospital records, a referral for physiotherapy and the request for information form make no reference to a back injury.
The insurer also emphasised the review panel's reference to the fact that the first mention of complaint to her back was on the occasion of Ms McHenry's examination by the orthopaedic surgeon Dr John Watson for the insurer on 8 February 2013. The review panel noted that this was two years and ten months after the motor vehicle accident which, in the opinion of the appeal panel, "makes it unlikely that the accident was the cause of the complaint".
In summary, the insurer submitted that it is plain that in coming to its decision the review panel had regard to numerous factors, including Ms McHenry's own evidence. It follows according to this submission that the issue of the existence or absence of recorded contemporaneous complaints was not by itself determinative on the issue of causation, but was on the contrary but one of a number of factors.

Authorities

This case is not the first in which this issue of the significance or otherwise of contemporaneous complaint has arisen for consideration.
In Owen v Motor Accidents Authority, the plaintiff was injured in a motor vehicle accident and alleged that he sustained injuries to his neck, thoracic spine, lumbar spine and left shoulder. The defendant disputed the injuries to the low back and left shoulder. A medical review panel reviewed a decision of a single medical assessor and issued a certificate determining that the injuries to the cervical and thoracic spine gave rise to a whole person impairment of less than 10%. The panel also concluded that the evidence did not support a finding that the lumbar spine injury was causally related to the accident and that it was therefore not relevant to assess the impairment rating in respect of that injury. The panel formed the same view with respect to the left shoulder injury.
The plaintiff sought judicial review of the decision of the panel, asserting that there had been jurisdictional error consisting of a failure to take into account all relevant medical material. Campbell J set aside the certificate of the review panel and remitted the matter for determination according to law. His Honour found that the reasons given by the review panel also indicated that it had identified a wrong issue in that it was an error for the panel to have considered, as decisive, whether there was a contemporaneous record of complaint of symptoms. His Honour said: "[50] The statement of the Review Panel that the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident is only explicable on the basis that the panel misdirected itself as to law. As the extract from Clause 1.9 of the MAA Guidelines set out at page 8 of Exhibit A makes clear - albeit in the context of the left shoulder - in general terms (subject to 5D Civil Liability Act 2002) it is sufficient if the injury ... was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The absence of a reference by the Review Panel to this important matter suggests that in relation to the back, it did not direct itself as to the law as required. This impression is reinforced by the emphasis the Panel placed upon the construct as a result of the injury caused by the motor accident at the top of page 8. The emphasised language suggests to me that the panel of experts, as legal laymen, looked to a more direct or proximate relationship than that mandated by the relevant legal principles. [51] This impression is reinforced by the consideration that the Panel, in concluding that there was no evidence to support the relevant causal relationship, took into account, and apparently only, the absence of any reference to a lumbar spine injury in contemporaneous medical records, within about a month of the motor accident. [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])..."
In Bradley v Insurance Australia Ltd, the plaintiff was involved in a motor vehicle accident on 18 April 2011 and lodged a claim dated 28 September 2011 in which he claimed that he had sustained an "injury to the neck" in the accident. The plaintiff identified Dr Kurtzer as the sole doctor who had treated him for injuries since the accident.
The defendant issued a notice admitting breach of duty of care. As the plaintiff and the defendant were unable to agree on the degree of whole person impairment, a medical assessor was appointed to make an assessment. The material considered by him included a DVD of surveillance footage, the investigator's report dated 21 October 2013 and a statement by the plaintiff dated 12 December 2013 in which he commented on what was depicted in the footage.
On 21 March 2014, the assessor determined that the plaintiff's neck, back and right knee injuries were caused by the motor vehicle accident and determined a whole person impairment of 5% (comprising 0% for the neck, 5% for the back and 0% for the right knee).
The plaintiff sought and was granted a referral to a review panel pursuant to s 63 of the Act. The review panel was constituted by specialists in occupational medicine, neurology and occupational medicine. The material before the review panel included the clinical notes of Dr Kurtzer, the plaintiff's general practitioner. These notes did not record any contemporaneous complaint of back pain, right knee or left hip pain.
The review panel's reasons included the following: "A. Evidence Considered The Panel considered all of the available evidence and decided that a re-examination of the claimant was necessary in order to reach a decision. This was because there was no neurological examination of upper or lower limbs documented in the Assessor's report. Accordingly, arrangements were made for the claimant to be examined by Assessors Gibson and Oates on 2 October 2014. It was decided that all injuries would be examined at that time. The Panel agreed to reconvene on 3 October 2014 to discuss the matter further. The Panel instructed the secretary to issue a notice to both parties stating that in the course of their deliberations, and based on the information available to them, they were inclined to find the claimant's lumbar spine injury, right knee and left hip injuries were not related to the motor accident."
In the course of refusing relief to the plaintiff, Adamson J said this: "[50] The regime established by the Act and the MAA Guidelines for a Review Panel to assess the degree, if any, of permanent impairment arising from injuries sustained in a motor accident is, as the High Court emphasised in Kocak, substantially different. Although there is a requirement for procedural fairness, there is no right to a hearing as such. The Review Panel may decide to examine the claimant, or not, as the case may be. It can decide what weight to give to a particular piece of evidence (such as the plaintiff's involvement with the local dog track; or his experience in making previous claims) without putting a potential adverse inference to the claimant, or having an active contradictor. [51] To express the question, as [counsel for the plaintiff] has done, in terms of curial processes, is to pose the wrong question. It is not a matter of the Review Panel rejecting the 'evidence' of the plaintiff, his wife or Ms Lee-Brown. Rather, it is a question whether the Review Panel is satisfied that the plaintiff sustained injuries to his back, his right knee and left hip in the accident. It can be seen and inferred from the reasons of the Review Panel that it considered that, had the plaintiff sustained injuries in these areas, he would have felt contemporaneous pain and he would have complained to his general practitioner and that his general practitioner would have, consistent with his usual practice and the legal requirements, recorded such complaints. The absence of record led the Review Panel to infer that no such complaint had been made. The absence of complaint led to the Review Panel's conclusion that no such pain had been suffered and no injury to those areas sustained. The Review Panel made it clear that it did not regard Dr Kurtzer's letter of 1 October 2014 as displacing the inferences arising from the clinical notes. [52] The Review Panel also took into account the circumstance that the claim form referred only to an injury to the plaintiff's neck. Although the claim form had been filled in by the plaintiff's solicitor and not by the plaintiff himself, it had been signed by the plaintiff. [Counsel for the plaintiff] accepted that there was no basis for inferring that the plaintiff's then solicitor was acting otherwise than in accordance with his instructions when he filled in the claim form on the plaintiff's behalf. [53] In these circumstances it was open to the Review Panel to find, as it did, that the plaintiff did not sustain injuries to the areas claimed other than the neck in the motor vehicle accident. I reject the plaintiff's submission that the Review Panel impermissibly allowed the clinical notes to be 'determinative'. Such a submission does not do justice to the careful process undertaken by the Review Panel (after raising its concern with the plaintiff in the correspondence referred to above) in resolving the question. [54] The reasons reveal that the Review Panel had regard to the following in coming to a conclusion on causation: the parties' submissions; Dr Kurtzer's clinical notes; the claim form signed by the plaintiff on 28 September 2011; the initial medical certificate; various radiological reports and a Centrelink Medical Assessment, as well as the additional material provided by the plaintiff's solicitors which included the statements of the plaintiff, his wife and Ms Lee-Brown. The Review Panel also put to the plaintiff in the course of the examination their concerns about the apparent inconsistency between his history and the contemporaneous clinical notes. Although [counsel for the plaintiff] criticised the Review Panel for asking the plaintiff in the examination to speculate on why there was no record of complaints in areas other than the neck in Dr Kurtzer's notes, I regard the Review Panel's approach as appropriate and consistent with (although more than was required by) procedural fairness. [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."
In Bugat v Fox, the plaintiff was injured in a motor vehicle accident and, after a number of assessments, was referred to a medical review panel. The issue posed for the panel was whether the degree of permanent impairment as a result of injury caused by the accident was greater than 10%. Among the injuries the plaintiff claimed were caused by the accident were injuries to her shoulders and arms. The panel concluded that these injuries were not caused by the accident. In reaching that conclusion the panel noted that it did not find that there was contemporaneous evidence to confirm causation.
R S Hulme AJ set aside the certificate of the review panel and remitted the matter to be dealt with according to law. One of the pivotal questions for the panel was whether the accident caused, or materially contributed to, the plaintiff's injuries. The presence or absence of contemporaneous evidence of injury was relevant to that question but it was not determinative, particularly where there was other evidence that supported the plaintiff's complaints.
His Honour said this: "[32] While I accept that, as an administrative decision maker, the Panel's reasons should not be subjected to 'minute and detailed textual criticism in the hope of finding something on which to base an argument' - Allianz Australia Insurance Limited v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096 at [36] - in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record."
In Rodger v De Gelder, the respondent was injured in a motor vehicle accident and claimed that he suffered injuries including an injury to his thoracic spine. As in the present case, he was required under s 131 of the Act to establish a degree of permanent impairment exceeding 10% before damages for non-economic loss could be awarded.
The respondent commenced proceedings in the District Court and the trial judge referred the medical dispute back to the Medical Assessment Service for further assessment pursuant to s 62 of the Act. This dispute ultimately came before a review panel which revoked the certificate of a single assessor that certified the degree of the respondent's permanent impairment as 20% and instead certified a degree of permanent impairment as 0%.
The respondent sought judicial review of the panel's decision in this Court. The primary judge found that the panel failed to take into account a relevant consideration, being a body of evidence directly relevant to the question of whether the respondent did make a relevant contemporaneous complaint of pain in his thoracic region after the accident. The primary judge also found that the panel's failure to engage with the reasoning of the trial judge, who had concluded that causation was established, amounted to a failure to take into account a relevant consideration.
On appeal it was held that the panel's reasons disclosed that it did not engage with the evidence of the respondent concerning the onset of thoracic pain at the time of and continuing after the accident. The panel also misread a doctor's report that did record a history of pain in the thoracic region at the time of the accident. The panel failed to respond to a substantial argument based on evidence relied upon by the respondent as to the causation of his injury by the accident.

The referral decision

In my view, Ms McHenry's case with respect to the decision of the proper officer can, in non-technical language, be considered to have been overtaken by events. That appears to be the burden of what was said by Basten JA in Dominice v Allianz Insurance Australia Ltd at [7], quoted earlier in these reasons.
I am also of the view that even if the proper officer's decision were shown to be infected with error, it would not have the effect of invalidating the decision of the review panel, on the assumption that the decision of the review panel was not otherwise shown to be affected by error. This much is clear from what was later said by Basten JA in Dominice: "[10] Fourthly, even if the decision were reviewable on the grounds referred to above, there remained a large question as to whether, and if so why, an error on the part of the proper officer in referring the application to a review panel would necessarily invalidate the decision of the review panel. The evidence revealed that the review panel had already considered and upheld the challenge to the original certificate and replaced that certificate with its own certificate prior to the hearing before the primary judge. Again, if error had been identified, there would have been a strong case for refusing any form of relief on a discretionary basis."
In my view, having regard to the fact that the review panel has already considered and upheld the challenge to Dr Lewington's certificate, and replaced that certificate with its own certificate, whether or not error can be identified, there is a strong case for refusing any form of relief with respect to the proper officer's decision on discretionary grounds.

The review panel decision

As Adamson J observed at [46] in Bradley, "[t]he function of the Review Panel is fundamental to the way in which its reasons are to be read". This was made plain in Kocak, where it was stated: "[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its 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."
The review panel in this case was charged with the task of conducting a new assessment of all of the matters with which the medical assessment was concerned. Relevantly for present purposes, that included an assessment of the degree of permanent impairment as a result of each of the injuries referred that were found to have been caused by the motor accident. The issue of causation was therefore not collateral or incidental to the review panel's task but central to it.
It goes without saying that the performance of that task is not to take place in a vacuum or in a state of suspended reality. The very notions of medical experience and medical expertise anticipate the application of a common sense approach to the assessment in question. As several authorities somewhat uncontroversially accept, the existence of contemporaneous complaints by injured parties claiming compensation for injuries is something to which medical experts have for long been inclined to resort in the assessment of such things as the existence of an injury, the persistence of that injury, the level of impairment flowing from that injury and the cause of the injury. Medical practitioners are undoubtedly familiar with the fact that not all injuries manifest themselves immediately at the time when the injury is actually sustained, so that the absence of a contemporaneous complaint is not necessarily conclusive. By the same token, contemporaneous complaint of injury standing alone does not necessarily say anything about the extent of any impairment claimed to have resulted from the injury or about the period during which any such impairment caused by the injury might be expected to persist.
Ms McHenry complains that the review panel unreasonably arrived at its assessment of the causal relationship between her persisting complaints and the motor vehicle accident solely or at least disproportionately by reference to the matters of which she complained when admitted to the John Hunter Hospital or within a relatively short time thereafter. In the words of Campbell J, Ms McHenry alleges that the review panel wrongly treated that matter as decisive, or adopting the description in Ms McHenry's submissions, wrongly treated the matter as determinative. I am, however, unable to accept that contention.
The review panel's examination of Ms McHenry's lower back was recorded in the following terms: "Lower Back: Ms McHenry demonstrated an erect stance, with a slight forward lean at the hips. There was a mild loss of lumbar lordosis as a result, but no scoliosis. Flexion reached 80% of normal and extension 50% of normal (being dysmetric). Side flexion reached 50% symmetrically, and rotation 80% of normal, symmetrically. She was able to stand on her toes and heels and mounted the examination plinth having sat to remove her shoes and flexed both hips to 150 degrees. Straight leg raising reached 70 degrees symmetrically and with negative nerve root traction signs. Neurological examination of the lower limbs revealed absent knee reflexes and brisk symmetrical ankle reflexes with flexor plantar responses. There was no wasting of her legs and measurements confirmed this, her calf muscles measured at the greatest circumference being 47.5cm symmetrically, and her thigh measurements 10cm above the patella, being 56cm symmetrically. Unilateral stance revealed normal hip abduction strength, and strength measurements for the hips on the plinth were normal."
Clearly, that summary of the panel's examination appears on the face of the record and may be taken to have formed part of the process of reasoning by which it arrived at its conclusions. In addition, although Ms McHenry had had X-rays and MRIs of several parts of her body, including her cervical spine, all of which are listed in the review panel's certificate, no similar investigations of her back were presented to the review panel. These listed investigations presumably formed part of the review panel's reasoning process. Notwithstanding these matters, the review panel did assess Ms McHenry as having a 5% whole person impairment as the result of the condition of her lumbosacral spine.
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. I note in passing that that may be contrasted with the position in Owen, in which the review panel identified a wrong issue, namely, whether treatment providers "in the first month or so following the motor accident" made a record of complaints of relevant symptoms. Ms McHenry also specifically told the review panel that her loin pain was the back pain of which she complained in her application for assessment of her injuries. The review panel was entitled to take account of that statement. The review panel somewhat conservatively expressed the opinion that the delay in first complaint of two years and ten months "makes it unlikely that the accident was the cause of the complaint." I do not read those words as suggesting that the content of contemporaneous records was dispositive of the assessment. The review panel specifically drew attention to the fact that even within that period, Dr Newing's referral for physiotherapy and the request for Medical Information Form dated 24 January 2011, which she completed, make reference only to neck pain and coccyx pain but make no reference to a back injury or to back pain.
Ms McHenry emphasised that the injury details provided in the 15 April 2010 document include a reference to "strain to back". However, Dr Newing's earlier document dated 8 April 2010, again merely refers to "painful coccyx difficulty sitting." The same document includes the words "may need physiotherapy for neck."
On 12 April 2010, Dr Cino Bendinelli, the Deputy Director of Trauma at the John Hunter Hospital, reported to Dr Newing following review of Ms McHenry at the outpatients clinic that day, saying her "most significant complaint now is ongoing neck stiffness." There is no reference of any sort to Ms McHenry's back or lumbosacral spine.
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.
A further matter should be noted. In her further amended summons, Ms McHenry says, at paragraph 14(c) that "the panel wrongly fixated on the alleged absence of contemporaneous evidence relating to [Ms McHenry's] back injury (reasons pages 11 and 12) in circumstances where medical assessor Lewington and the panel itself had taken an oral history from [her] at her respective medical examinations. That history included the history of her injury to her back in the accident" [my emphasis]. The emphasised words require some examination.
First, Ms McHenry did not relate a history of an injury to her back to the review panel. Indeed, Ms McHenry prays in aid her failure to do so as support for a claim that she was denied procedural fairness on the basis that the review panel should have raised the matter of her back for her comment and elaboration, if any, and that its failure to do so amounts to relevant error. (This is referred to as a separate matter in detail below at [67]).
Secondly, the history taken from Ms McHenry by Dr Lewington is not unambiguous. Under Dr Lewington's heading "History of the Motor Accident", no reference to any injuries is to be seen. Under Dr Lewington's heading "History of Symptoms and Treatment following the Motor Accident", the only reference to Ms McHenry's back is to be found in the words, "She complained of neck and back pain following the motor accident…". A fair reading of those words on one view is not that Ms McHenry was making a complaint of back pain to Dr Lewington but that she was recalling what she said she did sometime time in the past. It is one of the insurer's contentions in these proceedings with respect to Ms McHenry's challenge to the proper officer's decision that it is not apparent what Dr Lewington was basing this statement on and that his "path of reasoning" was correspondingly unclear.
The further amended summons makes no complaint about the treatment by either the proper officer or the review panel with respect to any injuries other than the back injury. I am uncertain as to why the way in which the review panel, for example, dealt with these other issues was not pressed by Ms McHenry as demonstrating error. On one view, Ms McHenry's allegations of an illegitimate reliance on contemporaneous records of complaint may have had more force in relation to those injuries, especially the knee complaints, which I note were found by Dr Lewington to have been caused by the accident. However, as I have not been asked to consider those injuries in the present context I shall not do so.
Ms McHenry contends further that she was denied procedural fairness in as much as the review panel did not in effect prompt her to say more, or on one view something, about her back pain and its history. I do not understand the law to be that a review panel has any such obligation, particularly having regard to the fact that its task is neither arbitral or adjudicative. The obligation of the review panel can in my view be no greater than to provide Ms McHenry with the opportunity to relate her history or offer other relevant information about her injuries, how they occurred and whether they continue to afflict her, among other things. There is no suggestion in this case that the review panel restricted or limited Ms McHenry in what she could say which, if it had occurred, would have been a relevant breach of the obligation to treat her fairly. If the true position is as Ms McHenry asserts, a review panel would be placed in the invidious and arguably intolerable position of being criticised for failing to ask some unspecified and unarticulated question which a disaffected claimant later maintained he or she should have been asked.
In so saying, I am aware of what was said in Frost v Kourouche by Leeming JA: "[32] It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550 at 587 ('the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it'). It is reflected in cl 1.43 of the 'Permanent Impairment Guidelines: guidelines for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident' dated 1 October 2007, which (like the Medical Assessment Guidelines) bound the members of the panel by reason of s 65(1) of the Act."
During the course of his helpful submissions, Mr Robinson SC who appeared for Ms McHenry with Mr Hart of counsel, put the proposition this way: "Your Honour, in my respectful submission, nothing could be more plain than a finding which is binding under the statute of the claimant saying to a medical assessor that she was complaining of neck and back pain after the accident at the time of the accident when she was taken to hospital. This is a significant because the panel later on says, we let her talk. She never mentioned the back claim. But they also don't say that they asked her any questions about the back claim and the back claim was the reason the proper officer sent it up to them in the first place. It's a little, I will say cute, but I don't mean to be offensive to the panel, it's a little cute to say, we didn't ask anything but she didn't mention back pain when she had already mentioned it and this is a document that was before them. HIS HONOUR: That is your procedural fairness point as well. ROBINSON: It is, your Honour, exactly."
In the present case, Ms McHenry has not suggested in terms what the questions were that the review panel should have asked her. On one view, taken to its logical conclusion, Ms McHenry's argument would have required the review panel to tell her that it was doubtful that her back injury was the result of what happened to her in the accident and invite her to comment upon it. However, having regard to the very clear recitations of the principle in cases of high authority such as Kioa v West (1985) 159 CLR 550; [1985] HCA 81 and Frost v Kourouche, among several others, I do not think, in the particular circumstances of the present case, that the review panel was required to go so far. For example, as was said by Brennan J in Kioa v West at 628, "The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance".
To similar effect, the court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 579; [1994] FCA 1074 at 591 said this: "Within the bounds of rationality, a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case. It is only if the decision-maker proposes to reach an adverse conclusion that is not an obvious and natural evaluation of the material supplied by the applicant, that the applicant is entitled to be told of the tentative conclusion…"
In a different context, Ashley JA said this in North v Homolka [2014] VSC 478: "[99] The plaintiff's counsel submitted that the Panel had decided that certain jobs constituted suitable employment for her client, those jobs not having been identified in any of the material placed before the Panel, and the plaintiff having been given no opportunity to address the Panel as to their suitability. This, counsel submitted, constituted a denial of procedural fairness. [100] Counsel further submitted that the Panel had not provided job descriptions referable to the additional jobs in its reasons. The plaintiff was thus unable to determine, likewise this Court, whether in concluding that the jobs constituted suitable employment the Panel had erred in its reasoning. This was really a complaint about inadequacy of reasons. [101] Counsel for VWA submitted that the Panel was not limited, in answering question 5, to job options which had been discussed in the various documents provided to it. The Panel had been entitled to rely upon its own expertise in identifying suitable employment. The Panel's opinion, identifying additional suitable employment options, was not something which 'could not have been reasonably anticipated'. Neither was it 'not obviously … open on the known material', or something that had come 'out of the blue'. The plaintiff had been on notice that the Panel would consider and give its opinion upon a wide range of 'light work' job types. The plaintiff had been given a fair opportunity of informing the Panel about all matters relevant to suitable employment. The Panel was not required, and it would be unworkable in practice for it to be required, to inform a plaintiff of the precise duties of the actual jobs which it was considering as suitable employment, and then seek his opinion. Still less was the Panel bound to fragment its process by suspending its consideration of questions submitted for its opinion so as to give the plaintiff's side the opportunity of making further submissions. [102] In my opinion, the Panel did not deny the plaintiff procedural fairness in the particular circumstances of this case. [103] In some circumstances, a panel might be obliged to fragment its consideration of a matter in order to accord a party procedural fairness. Barrett Burston was such a case. So was Calleja v Franet Pty Ltd. [104] But what are those circumstances? A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel's expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation."
I have also had regard to the decision of Davies J in Smith v Insurance Australia Ltd [2018] NSWSC 1606 at [41].
Ms McHenry could reasonably have anticipated that the cause and duration of her back condition were matters that were central to the review panel's deliberations. The fact that it made findings about that could not have been unexpected. In my opinion, Ms McHenry was not denied procedural fairness.
I should note for completeness, considering these statements of principle to which I have referred, that I accept that the precise delineation of a review panel's obligations is a task not without difficulty and something upon which minds might reasonably differ. If my view is wrong, and Ms McHenry has been denied procedural fairness in the way that she maintains, she would be entitled to an order revoking the review panel's certificate and an order that the matter be remitted to the Authority to be dealt with by a differently constituted review panel according to law.
Having regard to the view I have formed concerning Ms McHenry's complaints, it becomes unnecessary to consider the discretionary defences raised by the insurer. One of these, however, can be easily dealt with. The insurer contends that even if there were errors of law, Ms McHenry would still need to establish that the errors have a bearing on the outcome of the matter under review. The insurer submitted that this Court would decline to grant relief as a matter of discretion if that relief would be futile: Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [88]-[92]; Brimelow v Sharpe [2012] NSWCA 345 at [33].
The insurer contended that the only injury that the review panel determined was caused by the accident was Ms McHenry's cervical spine, which was found to give rise to a 0% whole person impairment. It argued that even if the 5% for the back injury, (which, as noted, is the only injury put in issue in the further amended summons) was found to be causally related to the accident, the total whole person impairment would only be 5%, and therefore still not above the s 131 threshold of "greater than 10% whole person impairment".
However, in the event that a differently constituted review panel were appointed and reviewed the matter according to law, or as Ms McHenry's submissions colourfully contend, "without the obsessions demonstrated in the vitiated decisions as to contemporaneous records", the final determination may well be different. The Court cannot predict what will happen or how the matter may be assessed. See, for example, Owen at [52].
I agree with Ms McHenry's position. It would be a mistake to attempt to form a view or to try to predict what a differently constituted review panel might make of the injuries, including how they were caused and whether or not, and if so to what extent, they have caused permanent impairment. The determination or assessment of these matters would, in the event of consideration and assessment by a differently constituted body, be matters for fresh determination. It is not in the circumstances possible to say that the grant of relief would be a futility.
The review panel were of the view that Ms McHenry's injury to her cervical spine was caused by the accident so that it is unnecessary to deal with that injury in this context.

Orders

In the circumstances I make the following order: 1. Order that the plaintiff's further amended summons be dismissed with costs.

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: 14 February 2019

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