Norrington v QBE Insurance

Solicitors: Chadwick Lawyers (Plaintiff) Sparke Helmore Lawyers (First Defendant) File Number(s): 2020/322893

Judgment

1. The plaintiff Donna-Leigh Norrington was involved in a motor vehicle accident on 10 June 2014 ("the accident"), as a result of which she claims to have incurred injuries to her cervical and lumbar spine, her left and right shoulders, and her right hand. The first defendant QBE Insurance (Australia) Ltd ("the insurer") is the CTP insurer of the vehicle at fault. Because there was a dispute as to whether her degree of permanent impairment exceeded 10% (for the purposes of (NSW) Motor Accidents Compensation Act 1999 ("MACA"), s 58(1)(d)), the insurer applied for an assessment, and the matter was referred to the State Insurance Regulatory Authority ("SIRA") Medical Assessment Service ("MAS"). On 31 July 2019, the plaintiff was assessed by Assessor Crowle, who on 18 August 2019 issued a certificate determining that the plaintiff had suffered soft tissue injury to the cervical spine, lumbar spine, and left shoulder, which were causally related to the accident but had since resolved; that the plaintiff's soft tissue injury to the right shoulder and right hand were not causally related to the accident; and that the plaintiff's whole person impairment which was causally related to injuries sustained in the accident was 0%.
2. On 1 October 2019 the plaintiff applied for a review of the assessment, to which the insurer responded, opposing the application, on 31 October 2019. On 20 November 2019, a Proper Officer for the MAS accepted the application and referred the matter to the MAS Review Panel. On 17 August 2020, the plaintiff was examined by the Review Panel, comprising Assessors Gibson, Gray, and Crane. On 21 August, the Review Panel issued a certificate to the effect that the plaintiff's right shoulder, left shoulder, and right hand soft tissue injuries were not causally related to the accident; and that while her soft tissue injuries to the cervical and lumbar spine were related to the accident, they had resolved; with the consequence that there was a whole person impairment of 0% causally related to injuries sustained in the accident.
3. By summons filed on 12 November 2020 (and amended at the outset of the hearing, as result of legislative amendments which commenced with effect from 1 March 2021, to nominate the Personal Injuries Commission as the entity to which the matter would be remitted), the plaintiff claims orders in the nature of certiorari and mandamus, and alternatively declaratory relief, in respect of the decision of the Review Panel. The plaintiff contends that the decision involved jurisdictional error and/or error of law on the face of the record, and in particular: 1. jurisdictional error in that with respect to the assessment of the left shoulder injury and its causation, the panel impermissibly treated the absence of a report of such injury in the contemporaneous medical records as determinative; 2. constructive failure to exercise jurisdiction (and/or denial of procedural fairness) by failing to respond to a substantial and clearly articulated argument advanced on behalf of the plaintiff with respect to the left shoulder injury and its causation; 3. failure to give proper reasons for the decision in relation to the left shoulder injury; and 4. making findings as to the nature and severity of the collision without evidence.
4. By its amended response, the insurer denies that there was any such jurisdictional error, denial of procedural fairness, or other error of law; contends that the decision was open to the Review Panel on the material before it; and contends that any error was not jurisdictional as it did not affect the decision, or alternatively that relief should be declined on the basis that the error was not material.

The statutory provisions

1. MACA, s 58(1)(d), provides that Part 3.4 applies to a disagreement between a claimant and an insurer about 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%. Section 61(2) provides that the certificate of a medical assessor to whom a medical dispute is referred is conclusive as to the matters certified. Section 61(9) requires the certificate to set out the assessor's reasons for any findings as to any matters certified in respect of which the certificate is conclusive evidence.
2. Section 63(1) provides that a party to a medical dispute may apply for an assessment to be referred to a review panel. Former sub-s (3) provided that any such application was to be referred to a review panel, but only if the proper officer was satisfied that there was reasonable cause to suspect that the assessment was incorrect in a material respect. [1] By current sub-s (3), a review panel is constituted by three assessors, being two medical assessors and one member of the Commission. Subsection (3A) provides: (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.
3. By sub-s (4), "[t]he 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." Subsection (6) provides that s 61 applies to any new certificate issued under s 63.
4. By s 131, "[n]o 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%." Section 132(1) provides that if there is a dispute in that respect, there is to be an assessment. As to that, s 133 provides: 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with - (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force - the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

Dr Cossetto's report

1. The plaintiff's response to the application for assessment, dated 23 April 2019, was supported by a report dated 15 October 2018 of Dr Cossetto, orthopaedic surgeon, who had treated the plaintiff prior to the accident, and was again consulted by her some years after the accident. His report states that he first saw the plaintiff in 2007, for a right shoulder problem; at review on 19 December 2007, it was noted that she had also developed a burning-type discomfort in her left shoulder girdle, associated with pain on both sides of the neck radiating down, although on examination, "the left shoulder girdle also exhibited a good painless range of motion". An MRI of her left shoulder, performed on 8 March 2008, showed partial thickness tearing of the supraspinatus tendon. On examination and questioning on 24 April 2008, it was apparent that she was being troubled by left shoulder medial periscapular discomfort which concurred with some palpable soft tissue crepitus present in that area with scapular motion. On examination of her left shoulder that day, she had a "full non-irritable range of motion of the glenohumeral joint and there was no tenderness in the left shoulder subacromial space".
2. Dr Cossetto next saw the plaintiff on 1 August 2018, over ten years later, and four years after the accident. She described having been involved in a motor vehicle accident in 2014 and having sustained injuries to her neck and left shoulder, with ongoing left shoulder girdle discomfort which had been managed conservatively with cortisone injections, but they had provided no relief. On examination, there was a painful abduction arc and positive impingement signs. She was referred for an MRI, which showed the presence of a rotator cuff tendinopathy. He diagnosed a left shoulder subacromial impingement, for which he recommended surgery. He reported: "The injuries sustained by Ms. Norrington as a result of the motor vehicle accident of 10th June, 2014 is that of a post-traumatic left shoulder subacromial impingement syndrome. The motor vehicle accident of 10th June, 2014 has not resulted in an aggravation of a pre-existing left shoulder condition. The symptoms that occurred in the left shoulder whilst Ms. Norrington was recovering from her right shoulder workers compensable injury were more related to her cervical spine and a cervico-brachial nerve irritation which in the post-operative period affected both shoulder girdles and which was noted to be resolving with conservative treatment modalities. At no time on physical examination, at that time, were there noted to be any signs of a left shoulder subacromial impingement."
3. Accordingly, this report provided the following evidence: 1. expert opinion, supported by MRI, of the absence of a left shoulder subacromial impingement in 2008; 2. expert opinion, supported by MRI, of the presence of a left shoulder subacromial impingement in 2018; and 3. expert opinion that the left shoulder subacromial impingement seen in 2018 was a "post-traumatic left shoulder subacromial impingement syndrome".

The first assessment

1. Assessor Crowle recorded that the accident was apparently a high impact collision occurring on a section of road that had a 100km/h limit, with successive collisions, in the course of which the plaintiff reached out with her left arm to protect her daughter; the car was written off and police, ambulance, and SES attended.
2. Assessor Crowle concluded that while the plaintiff attributed her left shoulder pain to the accident, she preferred the contemporaneous documentation. Later, the assessor observed: "It is possible that the subject motor accident caused injury of the left shoulder given the mechanism of the motor accident and given the GP report of left trapezius tenderness immediately following the motor accident."
3. However, given that there was no treatment of the shoulder until the following year, she concluded that it had resolved.

The review application

1. In support of the application for review, the plaintiff submitted that it was not open to the assessor to conclude that the injuries to the left shoulder had resolved, when the assessor had not asked the plaintiff relevant questions as to whether she had ongoing symptoms, and no proper history of the pre- and post-accident period had been obtained. Further, founded on Dr Cossetto's report, it was argued that the assessor should have found that the plaintiff had a post-traumatic left shoulder subacromial impingement syndrome. The application was supported by a statement of the plaintiff dated 30 September 2019, in which she stated that the pain and significant restriction of movement in her left shoulder dated from the accident.
2. The proper officer decided that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The reasons for that conclusion included: "It is not clear why the Assessor prefers the medical material over the Applicants [sic] opinion. While clearly the Assessor is entitled to favour the medical material, the Assessor should have taken a comprehensive history of the Applicant pre-accident of 2014 symptoms and post- accident of 2014 symptoms."
3. The Review Panel decided that an examination of the plaintiff was required, and requested further information, and submissions on the following issues: "1. The Review Panel is not convinced that there was any distinct shoulder injury arising from the subject accident. 2. The Review Panel require clarification as to reasons for the delay in lodging the claim application (June 2017), this being some years after the subject accident occurred."
4. In response, the plaintiff's submissions addressed a number of issues, not all of which are relevant for present purposes, but they included: 1. that the panel members were not reconstruction or accident experts and should not be drawing conclusions from photographs of the accident; 2. as to the severity of the collision, attention was drawn to the history obtained by Assessor Crowle, as summarised above, including that it was in a 100km/h zone, there were two impacts because it was a multi-car collision, and that the plaintiff had instinctively reached out with her left arm to her daughter, who was sitting in the passenger's seat adjacent to her; 3. that causation of the left shoulder injury was supported by the report of Dr Cossetto, as summarised above. In particular, it was emphasised that prior to the accident there were no signs of a left shoulder subacromial impingement. A supplementary report of Dr Cossetto was provided, in which he confirmed that there was no evidence that falls in 2014, 2016, and 2017, nor a subsequent motor vehicle accident in December 2017, led to any significant injury to the left shoulder girdle.

The Review Panel decision

1. Part 1 of the Panel's reasons, headed "Review Details", included (as Part 1C) a list of "Documentation and Other Material Reviewed". Part 2 identified the "Assessment under Review", and "Disputes identified by the Parties". Part 3 was headed "Matters Considered and Decided by the Panel". In Part 3A, the Panel stated that they had "considered all of the available evidence and decided that a re-examination … was necessary in order to reach a decision, because there was concern expressed by the claimant that an adequate history had not been obtained from the claimant by the Assessor." Then, in Part 3B of the reasons, headed "Additional Evidence", under the subheading "Pre-Accident Medical History", reference is made to a previous right shoulder injury, but not at this point, though there is later, to any antecedent left shoulder problem. Under "History of the Accident", it is recorded that the plaintiff's car was "rear-ended by another car"; that her car was "apparently not driveable after the accident and was written off"; that police, ambulance and emergency services attended; but that she said that she was not assessed by the ambulance and was taken home by a friend. There is no reference to the matters referred to in the supplementary submission about the severity of the accident and the fact that it involved two impacts apparently at high speed; nor to the plaintiff's use of her left arm to protect her daughter.
2. Under the subheading "History of Symptoms and Treatment Following the Motor Accident", the Panel attributes to the plaintiff the following recollection: "She recalls that immediately after the accident, there was no complaint of any symptoms but some 30-45 minutes after the accident, Ms Norrington noted the onset of central low back pain and pain in the left shoulder, that she described as 'agony' in the left shoulder and low back, with a lesser amount of discomfort noted in her neck."
3. The Panel then recorded: "General practitioner records indicated a number of consultations following the subject motor vehicle accident, noting problems with the neck and right shoulder, but it was not until March 2015 that there was a specific entry concerning a complaint of chronic left shoulder pain with reduced range of motion."
4. Under the subheading "Current Symptoms", it was observed that "[t]he claimant noted that the main problem which she considered resulted from the accident was constant pain in the left shoulder." The panel must have inquired about the absence of any contemporaneous record, as it noted: "Ms Norrington did not understand why there was no specific mention of problems with the agonising pain in left shoulder in the GP notes until some nine months after the accident."
5. Under "Current and Proposed Treatment", the Panel stated that orthopaedic surgeon Dr Cossetto: "who had operated on the claimant's right shoulder, considered there were possible indications for surgery to the left shoulder. The Panel disagreed with Dr Cossetto's opinion …; with regard to the left shoulder, the Panel found no injury to the left shoulder caused by the motor accident. More specifically, there was no documentation of left shoulder symptoms until March 2015, with pre-accident intermittent left shoulder symptoms".
6. The reasons then deal with the clinical examination of the cervical spine, the lumbar spine, and the upper extremities, in which respect it was said that "[t]he left shoulder was showing some signs of impingement with tenderness anterolaterally". There were four repetitions of measurements of the range of motion of each of the right and left shoulders, each in six planes. The panel observed that "[t]he restricted range of motion of the shoulders was inconsistent", and that the plaintiff attributed the restricted movements to "shoulder discomfort, without neck complaints."
7. In Part 3C of the reasons, headed "Panel Deliberations", the Panel dealt first with the "Cervical spine", and under the subheading "Causation", "noted there had been no immediate pain in the neck following the accident, with this not occurring until some 30-45 minutes later", and stated "[i]t was considered from the description of the accident that the rear end collision was a low impact one, but may have caused some cervical spine soft tissue injury which would have been expected to resolve within a matter of days or weeks". Under "Impairment", it was stated "[h]aving considered the soft tissue injury would have resolved as noted above, the examination findings did indicate a DRE Category I which would have been 0% whole person impairment, had this been considered as an ongoing problem following the MVA".
8. Under the heading "Lumbar spine", the panel was again of the opinion that "a simple rear-end collision may have caused a transient soft tissue injury to the lumbar spine", which "would have been expected to have resolved within a matter of days or weeks", and stated that "had there been an assessment of impairment on the clinical findings of DRE Category I which would have been 0% WPI."
9. Then, turning to the left shoulder, the Panel concluded (emphasis added): "Causation The Panel considers that a simple rear-end collision is most unlikely to cause any significant problem with the shoulders. It is also noted that there was no documentary evidence of injury to the left shoulder from the medical records perused by the Panel, until 9 months after the MVA. In the absence of confirmatory documentary evidence, the Panel was therefore unable to accept causation of injury to the left shoulder resulting from the accident. There were intermittent left shoulder symptoms requiring Panadol, before the motor accident. Impairment As causation was not accepted for the left shoulder, there was no impairment consequential upon the accident. It was also noted that examination of the shoulder indicated that the restriction in range of motion was anterolateral shoulder discomfort, and not related in any way as a secondary effect of any injury to the cervical spine, and this was noted in consideration of the Nguyen decision, which therefore did not apply in this case."
10. The Panel added (emphasis added): "The Panel is not in agreement with the Assessor, who accepted soft tissue injury to the left shoulder because the Panel considered the nine-month delay before any medical documentation concerning injury to the left shoulder appeared. This was therefore not causally related to the accident."

Jurisdictional error

1. The plaintiff's principal contention in this Court was that the Review Panel committed jurisdictional error by treating the absence from the medical records of any complaint of a left shoulder injury for nine months after the accident as dispositive, thereby failing properly to discharge their statutory function to ascertain causation.
2. It is well established that jurisdictional error includes a constructive failure to exercise jurisdiction, which occurs when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form. [2]
3. In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error. In AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen, the Court of Appeal said (emphasis added): [3] "[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? [65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason the decision recorded in the panel's certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error. [66] This was a case where a failure by the review panel to respond to a substantial argument led to a practical injustice. The primary judge was correct to hold that the review panel did not address the correct question put to it for determination."
4. The cases show that while the presence or absence of a contemporaneous record of a complaint is relevant in this context, it must not be treated as conclusive of the question of causation, not least because it is possible that causation may exist without a documented contemporaneous complaint. In Owen v Motor Accidents Authority (NSW), Campbell J said: [4] "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 my judgment the identification of this wrong issue was jurisdictional error."
5. In Bugat v Fox ("Bugat"), R S Hulme AJ said: [5] "[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". [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."
6. In Robson v QBE Insurance (Australia) Ltd, Wright J said: [6] "[114] From the comments in the "Review of File Material", I was left with the distinct impression that the absence of documentation of specifically identified cervical injury by Dr Hussain in the period immediately following the motor accident was the determining factor, even in the context of a multifactorial approach, in the review panel's conclusion that Mr Robson's C5/6 disc protrusion was not caused by the motor accident. [115] This impression was confirmed by section C of the review panel's reasons under the heading "Panel Deliberations". There, it was stated in relation to, inter alia, the C5/6 disc protrusion: • Cervical spine - aggravation of a disc degenerative disease and/or cervical spondylitic problem, significant disc bulging at C6/7, C5/6 and C4/5, radiculopathy, musculoskeletal injury. Not caused by the motor accident. The Panel found no injury to the neck/cervical spine caused by the motor accident on the basis of the early post-accident history and medical documentation. … (underlining added) [116] This part of the review panel's reasons confirms my understanding of the panel's approach to the assessment of causation of Mr Robson's injury since it makes explicit that the panel's "deliberation" on the question of causation of the C5/6 disc protrusion was confined to one factor or basis, namely "the early post-accident history and medical documentation". No other factor was noted as affecting the panel's conclusion in this regard. The review panel, in substance, addressed only the question of whether there was contemporaneous documented complaint of injury to the cervical spine and did not address the actual question posed by s 58(1)(d), namely what was the degree of permanent impairment of Mr Robson as a result of the injury caused by the motor accident. [117] For these reasons, I conclude that the review panel made the type of jurisdictional error identified in McGiffen and Owen, referred to above. …"
7. In that case, although the review panel referred to substantial other evidentiary material, this did not cure the problem that they treated the absence of documented contemporaneous complaint as decisive.
8. In Fraser v AAI Ltd t/as GIO as agent for the Nominal Defendant, Campbell J said: [7] "[55] This ground affects Mr Fraser's entitlement to have impairments resulting from an alleged injury to his left hip and right shoulder included in the assessment for the purpose of s 131. Submissions (5) and (6) above in Ms Gumbert's summary apply. As was made clear by the fuller written submissions attached to Mr Grove's affidavit (at 29-30), a body of material was provided to the Medical Review Panel to persuade it that there was a connection between these asserted injuries and the motor accident. Some emphasis was placed upon Mr Fraser's subjective history that he had suffered left hip pain at the time of the accident. None of this material was evaluated by, or even expressly referred to, by the Review Panel. I make no comment on what should have been made of it. Rather, the Panel simply agreed with the assessor that a delay of 5 months in the medical recording of a complaint about the left hip meant there was no "causation": Affidavit at 48. For the right shoulder, a delay of 2 months in the medical recording of complaints persuaded the Assessor that "causation had not been found" and the Review Panel "was in agreement with this": Affidavit at 47. [56] One is driven to the conclusion that: (a) the Review Panel did not seriously consider the argument put forward on behalf of Mr Fraser; (b) restricted itself to a consideration of Dr Assem's reasons and whether they agreed with him or not; and (c) treated the absence of a strictly contemporaneous record as decisive of the question of legal causation. [57] Many cases have emphasised that this is a legally erroneous approach to the question of legal causation thrown up by s 58(1)(d) of the Act. It's sufficient to refer only to the decision of the Court of Appeal in AAI Ltd (t/as GIO) v McGiffen [2016] NSWCA 229; 77 MVR 348. … As I have said, this is only one of a number in a series of cases emphasising that to treat primary clinical records as decisive of causation will almost always result in jurisdictional error. This may be formulated as a failure by the Review Panel to direct itself to the question actually posed by s 58(1)(d) resulting in "a purported and not real exercise of its statutory function". The question of the merits of Mr Fraser's claim, of course, is nothing to do with the Court. But he is entitled to have his claim determined according to law and in conformity with the requirements of the governing statute, in this case, the Motor Accidents Act 1999."
9. The insurer invoked decisions which expressed the view, acknowledged by R S Hulme AJ in the passage cited above from Bugat, that a 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". Thus, in Allianz Australia Insurance Limited v Motor Accidents Authority of NSW, Sully J said: [8] "[36] Fifthly and finally, it is in my view appropriate to bear in mind, albeit by way of analogy, the following observations of the Court of Criminal Appeal in connection with the examination of a summing up at trial: The practice of subjecting a summing-up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not in my opinion assist in the proper administration of justice, and this Court was not called into existence to wrestle with exercises in mental ingenuity of that kind. .….Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. (R v Sorlie (1925) 25 SR 532 at 539). [37] I can see no reason in principle why those observations should not apply mutatis mutandis to reasons published by a claims assessor in explanation of a particular decision. What is fairly to be expected of the assessor is that there should be available a statement at once simple, succinct and clear by reference to which either an appellate court or some other court of competent jurisdiction can test logically and according to correct principle whether the assessor's decision is supported by a process of reasoning that is supportable in law and in fact."
10. In Bradley v Insurance Australia Ltd (t/as NRMA Insurance) ("Bradley"), Adamson J provided a helpful description of the function of a review panel and comparison of what might be expected of such a panel as contrasted with a court considering a question of causation: [9] "[45] Some latitude is to be given to the reasons of an administrative decision-maker, which are not to be construed "minutely and finely with an eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic (1993) 43 FCR 280; 115 ALR 1) and are to be given what has been referred to as a "beneficial construction": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; 136 ALR 481 at 490-1; 41 ALD 1 at 8-9. However, a beneficial construction does not permit reasons to be inferred which are not stated if they are not necessarily implied by what is expressed: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] per Stone J. Although reasons need not be extensive, where more than one conclusion is open it is necessary for the decision-maker to explain a preference for one conclusion rather than another: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; 236 ALR 342; 95 ALD 681; [2006] NSWCA 284 at [121]-[122] per Basten JA. [46] The function of the review panel is fundamental to the way in which its reasons are to be read. In Kocak, the High Court considered a scheme analogous to the one that applies in the present case. At [47] the High Court per French CJ, Crennan, Bell, Gageler and Keane JJ said (omitting footnotes): [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. [47] That the review panel's function is "neither arbitral nor adjudicative" has significant consequences for both the first and the second grounds. As far as the first ground is concerned, it means that the panel's decision about causation is not to be arrived at by the processes that would be used in a court room. … [49] Were the issue of causation that had to be determined by the review panel required to be determined by a court, it is likely that the plaintiff, his wife and, possibly, Ms Lee-Brown would be called to give oral evidence on oath. Each would be cross-examined. Factual questions such as the extent of the plaintiff's voluntary role at the local dog track could be explored. Dr Kurtzer would probably also be called as a witness and cross-examined about the inconsistencies between his clinical notes on the one hand and the statement in his letter of 1 October 2014 that the plaintiff's account ought be accepted on the other. The clinical notes would be tendered. If a court were to find, on the basis of the clinical notes of Dr Kurtzer, that the plaintiff did not complain of back pain in the consultations following the accident and that he therefore did not injure his back in the accident, it would be required to give reasons for rejecting the accounts of the plaintiff, his wife and Ms Lee-Brown or in some other way reconcile its finding with that evidence. Failure to fulfill this function could lead to the court's decision being overturned and a re-trial ordered: see, for example, Coote v Kelly [2013] NSWCA 357 at [39]-[52] per Leeming JA (Basten and Hoeben JJA agreeing). As Leeming JA said at [46]: [46] Her Honour's findings amount, albeit implicitly, to a wholesale rejection of the testimonial evidence of Dr Wall and Dr Hiddins. It meant not only that Dr Wall and Dr Hiddins missed something which was obvious, but also either that they were lying when they said they had an actual recollection of the consultations, or at best were mistaken in their understanding of what an actual recollection (as opposed to a reconstruction) involves. It was open, having regard to the cross-examination, for her Honour to make such findings, but only if the reasoning process supporting it were exposed. One unpleasant aspect of curial adjudication is that on occasion, such findings need to be made. But they should be made expressly, not implicitly, and attended by a transparent and comprehensible reasoning process based on findings of fact reflective of the gravity of the court's conclusion. [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 Mr Romaniuk 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. Mr Romaniuk 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 Mr Romaniuk 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; compare Mason v Demasi [2009] NSWCA 227 at [2] per Basten JA."
11. Bradley shows that an assessor, and a review panel, is entitled to give weight to contemporaneous records. On the particular facts, it was found - as explained in the passages cited above - that the panel had undertaken a careful process of reasoning which involved consideration of material other than the contemporaneous clinical notes. The decision does not detract from the proposition that it is erroneous to treat the absence of contemporaneous clinical record of a complaint as decisive.
12. It is not in doubt that an assessor, and a review panel, is entitled, in deciding the question of causation, to consider, and to give weight to, contemporaneous medical records. The absence of any record of a complaint of particular symptoms following and accident might be a powerful indicator that a particular injury was not associated with the accident. On the other hand, it is not decisive: there are many reasons why a complaint might not be made, or recorded, promptly following an incident.
13. Here, the question is whether the Review Panel (permissibly) gave weight to the absence of a contemporaneous record of left should injury, or (impermissibly) considered that the absence of such a record was of itself decisive and meant that the plaintiff's claim could not succeed. I approach this on the basis that the latter conclusion is not lightly to be reached, and that the Panel's reasons are not to be construed "minutely and finely with an eye keenly attuned to the perception of error", but are to be given what has been referred to as a "beneficial construction".
14. The Panel's reasons refer on four occasions to the absence of any clinical record of left shoulder symptoms. First, in response to the history obtained from Ms Norrington that "immediately after the accident, there was no complaint of any symptoms but some 30-45 minutes after the accident, Ms Norrington noted the onset of central low back pain and pain in the left shoulder, that she described as 'agony' in the left shoulder and low back", the Panel proceeded to record that while there were GP records of a number of consultations following the accident noting problems with the neck and right shoulder, "it was not until March 2015 that there was a specific entry concerning a complaint of chronic left shoulder pain with reduced range of motion." Further, the Panel noted that "Ms Norrington did not understand why there was no specific mention of problems with the agonising pain in left shoulder in the GP notes until some nine months after the accident." Secondly, it offered as its reason for disagreeing with Dr Cossetto that "there was no documentation of left shoulder symptoms until March 2015, with pre-accident intermittent left shoulder symptoms." Thirdly, in finding that causation of the left shoulder injury was not established, the Panel observed that there was no documentary evidence of injury to the left shoulder from the medical records until nine months after the accident, adding (emphasis added) "[i]n the absence of confirmatory documentary evidence, the Panel was therefore unable to accept causation of injury to the left shoulder resulting from the accident". Fourthly, in expressing its disagreement with the assessor's acceptance that there had been a soft tissue injury to the left shoulder, the reason given was that (emphasis added) "the Panel considered the nine-month delay before any medical documentation concerning injury to the left shoulder appeared. This was therefore not causally related to the accident."
15. When read as a whole, these passages bespeak an approach in which the absence of a contemporaneous clinical record of left shoulder symptoms was treated as decisive. The passages italicised in the preceding paragraph explicitly say as much. By those passages, the Panel have stated that they regarded the perceived absence of a contemporaneous documented complaint as conclusive of the question of causation.
16. Moreover, except for the perfunctory statement that they disagreed with Dr Cossetto's opinion, because there "was no documentation of left shoulder symptoms until March 2015, with pre-accident intermittent left shoulder symptoms", the Panel's reasons contain no reference to the plaintiff's submission, advanced by reference to Dr Cossetto's report, that there was radiological evidence of a relevant change in her shoulder condition between 2008 and 2018, resulting in a diagnosis of post-traumatic left subacromial impingement syndrome. Although the Panel referred to "pre-accident intermittent left shoulder symptoms", it did not advert to Dr Cossetto's evidence that not only had these resolved before the accident, but that they were unrelated to the left subacromial impingement diagnosed on MRI post-accident. The plaintiff characterises this as a failure to address a substantial and clearly articulated argument advanced on her behalf, but it also illustrates and confirms a failure properly to conceive and address the question of causation, beyond whether there was a contemporaneous record of complaint.
17. Save to the extent that they were incorporated under the description "6. Additional document/s accepted by MAS from Chadwick Lawyers dated 7 February 2020" in the list of "Documentation and Other Material Reviewed" at Part 1C, there is no reference to the plaintiff's statement of 30 September 2019, in which she stated that the pain and significant restriction of movement in her left shoulder dated from the accident. Nor is there any statement to the effect that they disbelieved the plaintiff when she gave the Panel a history that she recalled pain in the shoulder 30-45 minutes after the accident. There is nothing to indicate that consideration was given to reasons why a complaint of pain in the shoulder might not have been documented until nine months after the accident. The consistent and repeated theme is that the passage of nine months after the accident before there was a documented report of left shoulder pain precluded a finding of causation.
18. It might well be that a Review Panel, performing their task lawfully, could provide valid reasons for disagreeing with Dr Cossetto and for thinking that the changes apparent on MRI are unrelated to the accident, and for concluding that having regard to, inter alia, the absence of any recorded contemporaneous complaint, causation was not established. But all that appears in this case is that the passage of nine months after the accident before there was a documented complaint of left shoulder symptomatology was treated as conclusive of the question of causation. In substance, the Review Panel, addressed only whether there was contemporaneous documented complaint of injury to the left shoulder, and did not address the actual question posed by s 58(1)(d), namely what was the degree of the plaintiff's permanent impairment as a result of the injury caused by the accident. The Panel did not consider whether, notwithstanding the absence of a reported complaint, the plaintiff might have incurred the left shoulder injury, as she claimed, in the accident. It thereby failed properly to exercise its jurisdiction.

Materiality

1. The insurer submitted that if error were found, relief should nonetheless be refused, on the basis that it was not shown to be material, as the result would have been no different without the error. This submission derives from the proposition that jurisdictional error involves an error made "in a way that affects the exercise of power". [10] Adapting the words of Edelman J in Hossain v Minister for Immigration and Border Protection, an error will not usually be material in this sense unless there is a possibility that it could have changed the result of the exercise of power; in other words, materiality will generally require that the error be such as to deprive a person of the possibility of a successful outcome, though there may be exceptions, including where a decision-maker fails to exercise jurisdiction to decide a question according to the applicable criterion. [11] In any case, it suffices that there be a possibility of a different outcome; the plaintiff does not need to establish that the outcome would have been different.
2. In addition to the materiality argument, the insurer submitted that relief should be declined as a matter of discretion, because it would be futile.
3. Underlying both these arguments was the proposition that, regardless of any error, the plaintiff could not surmount the 10% threshold. In this respect, it has been noted that on clinical examination by the Review Panel, repeated measurements of the plaintiff's left shoulder range of motion were obtained. The various repetitions conducted by the Review Panel produced a range of upper extremity impairment of 15% to 23%, depending on which repetition is selected. That translates to a whole person impairment of 8% to 14%.
4. The insurer submitted that: 1. when assessing the plaintiff's whole person impairment, the Panel was required to have regard to the Motor Accident Permanent Impairment Guidelines ("PIGs") [12] and the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA4") [13] ; 2. the AMA4 guidelines provide that several repetitions may be performed to obtain reliable results, and that the full range of active motion takes precedence; and 3. adopting the most active measured range of motion in each plane, there was a total 15% upper extremity impairment, which equates to a 9% whole person impairment - below the 10% threshold.
5. Clause 1.40 of the PIGs, entitled "Consistency", provides: "Tests of consistency, such as using a goniometer to measure range of motion, are good but imperfect indicators of the injured person's efforts. The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report."
6. Clause 1.50, which appears under the heading "Assessment of the upper extremity", provides: "Although range of motion appears to be a suitable method for evaluating impairment, it can be subject to variation because of pain during motion at different times of examination and/or a possible lack of cooperation by the person being assessed. Range of motion is assessed as follows: 1.50.1 A goniometer should be used where clinically indicated. 1.50.2 Passive range of motion may form part of the clinical examination to ascertain clinical status of the joint, but impairment should only be calculated using active range of motion measurements. 1.50.3 If the medical assessor is not satisfied that the results of a measurement are reliable, active range of motion should be measured with at least three consistent repetitions. 1.50.4 If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation. Refer to clause 1.40 of these Guidelines. 1.50.5 If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the medical assessor should then use discretion in considering what weight to give other available evidence to determine if an impairment is present."
7. As has been noted, the Panel considered that the left shoulder measurements were inconsistent. In those circumstances, the effect of clauses 1.50.4 (read with clause 1.40) and 1.50.5 is that the measurements should not be relied on as a valid parameter, and an assessor should use discretion in considering what weight to give other available evidence to determine if an impairment is present. In this respect, in Brown v Insurance Australia Group Ltd t/as NRMA Insurance Ltd, Adamson J observed: [14] "The number of times which the Review Panel measured the claimant's active range of motion of her right arm is not evident from its reasons. However, the Review Panel was not obliged to use the range of motion method for evaluating any permanent impairment to the claimant's right shoulder. Indeed, cl 1.50.4 provides that if there is inconsistency in range of motion, the range of motion method ought not be used as a valid parameter to evaluate impairment. In the present case, the Review Panel, having conducted some testing of the claimant's range of motion, decided that it was not an appropriate method for evaluating permanent impairment because of the inconsistency in her presentation: cf. Wellman v CIC Allianz Australia Insurance Ltd [2019] NSWSC 1353 at [63]-[74] (Harrison AsJ), where the range of motion method was used. It is apparent from the reasons, that the Review Panel accepted that the inconsistency was the result of pain. Accordingly, the Panel's rejection of that method as inappropriate did not imply any criticism of the claimant. It was pre-eminently a matter for the Review Panel to decide on the appropriate method for assessing permanent impairment. Having found inconsistency in range of motion due to pain, the Panel was prohibited by cl 1.50.4 from using it to assess permanent impairment."
8. For the insurer, it was submitted that the range of motion measurements might still be used; but if so (as was accepted to be permissible, notwithstanding "inconsistency", in Wellman v CIC Allianz Australia Insurance Ltd [15] ), that does not exclude the possibility that they would not.
9. Moreover, the insurer's submissions depended on the proposition that the most active measured range of motion in each plane would be adopted. However, and contrary to the insurer's submission, the guidelines do not dictate that "the full range of active motion takes precedence". The AMA4 guideline is relevantly as follows: [16] "In evaluation of restriction of motion of the hand and upper extremity, the full range possible of active motion should be carried out by the subject and measured by the examiner. Several repetitions may be performed to obtain reliable results. The examiner may check the range of passive motion by applying moderate pressure to the joint. However, in the Guides, the range of active motion takes precedence."
10. In that context, it is apparent that the direction that "the range of active motion takes precedence" is to distinguish it from passive motion. It is not a direction that the largest measurement should be adopted. Why one would necessarily adopt the largest measurement rather than, for example, an average of the four, was not explained. In my view, contrary to the insurer's submissions, the range of measurements elicited in fact demonstrates that there is a possibility that the plaintiff's upper extremity impairment could be assessed at a level which would translate to a whole person impairment in excess of 10%. Only by adopting the measurements towards the extreme of the range most adverse to the plaintiff would that not be so.
11. Even if that were not so, it would not follow that there was no possibility of a different outcome. As Harrison J explained in McHenry v Insurance Australia Limited (t/as NRMA Insurance), it is not possible to say that the grant of relief would be a futility when causation of injury, and whether and if so to what extent the injury has caused permanent impairment, would be matters for fresh consideration, assessment, and determination by a differently constituted review panel: [17] "[77] 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". [78] 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]. [79] 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."
12. It follows that in my judgment the error was material, in the sense that it deprived the plaintiff of the possibility of a successful outcome, and it is by no means apparent that the grant of relief would be futile.

Conclusion and Orders

1. My conclusions may be summarised as follows:
2. The Panel did not consider whether, notwithstanding the absence of a documented report, the plaintiff might have incurred the left shoulder injury, as she claimed, in the accident. It thereby failed properly to exercise its jurisdiction.
3. The error was material in the sense that it deprived the plaintiff of the possibility of a successful outcome, and it is by no means apparent that the grant of relief would be futile.
4. My orders are: 1. Order in the nature of certiorari removing into this Court and quashing the certificate issued by the third defendant constituting a Review Panel of the second defendant State Insurance Regulatory Authority, dated 21 August 2020; 2. Order in the nature of mandamus that the Personal Injuries Commission of New South Wales, as successor to the second defendant State Insurance Regulatory Authority, by a differently constituted review panel, consider and determine according to law the review of the assessor's certificate of 18 August 2019; and 3. Order that the first defendant pay the plaintiff's costs.

Endnotes

1. See now sub-s (2B). The provision now refers to the President, rather than a proper officer.
2. Rodger v De Gelder (2015) 71 MVR 514 at 533 [95] (Gleeson JA; Macfarlan JA and Leeming JA agreeing); [2015] NSWCA 211, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339 [41] (Gaudron J); [2001] HCA 30.
3. (2016) 77 MVR 348 at 363-364 [64]-[66] (Meagher, Simpson and Payne JJA); [2016] NSWCA 229.
4. (2012) 61 MVR 245 at 257-258 [52] (Campbell J); [2012] NSWSC 650.
5. (2014) 67 MVR 150 at 155-156 [31]-[32] (R S Hulme AJ); [2014] NSWSC 888.
6. (2020) 94 MVR 341 at 364-365 [114]-[117] (Wright J); [2020] NSWSC 1558.
7. [2020] NSWSC 1333 at [55]-[57] (Campbell J).
8. (2006) 47 MVR 46 at 56-57 [36]-[37] (Sully J); [2006] NSWSC 1096.
9. (2015) 71 MVR 496 at 507-510 [45]-[47], [49]-[55] (Adamson J); [2015] NSWSC 950.
10. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135 [30] (Kiefel CJ, Gageler and Keane JJ), 147 [71] (Edelman J); [2018] HCA 34 ("Hossain"); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] (McHugh, Gummow and Hayne JJ); [2001] HCA 30; see also Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45] (Bell, Gageler and Keane JJ); [2019] HCA 3; Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [160] (Basten, Leeming and Brereton JJA).
11. Hossain at 147-148 [72] (Edelman J).
12. State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (2018).
13. American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, 1995) ("AMA4").
14. [2020] NSWSC 1597 at [45] (Adamson J).
15. [2019] NSWSC 1353 at [74] (Harrison AsJ).
16. AMA4 at 3/15 [3.1a].
17. (2019) 87 MVR 298 at 323 [77]-[79] (Harrison J); [2019] NSWSC 68. 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: 20 May 2021