Partridge v IAG Limited t/as NRMA Insurance

Supreme Court of NSW|2019-05-16|Before: Harrison J

Judgment

HIS HONOUR: Diane Partridge was involved in a motor vehicle accident on 23 December 2015. IAG Limited was the licensed compulsory third party insurer of the vehicle at fault. Ms Partridge claimed damages pursuant to the Motor Accidents Compensation Act 1999 as a result of the injuries allegedly sustained by her.
Ms Partridge's entitlement to damages for non-economic loss pursuant to s 131 of the Act was disputed, and therefore a medical assessment of her degree of permanent impairment was required to ascertain whether her whole person impairment exceeded 10%. She made an application to the Medical Assessment Service ("MAS") for assessment of her whole person impairment, pursuant to section 58(1)(d) of the Act. She alleged that she had sustained a cervical spine injury and a left wrist injury, as well as vertigo, tinnitus and hearing loss, as a result of the motor accident.
Ms Partridge was assessed by Assessor Robert Payten. On 15 November 2017, Dr Payten concluded that her vertigo, hearing loss and tinnitus gave rise to 3% whole person impairment.

Errors

Ms Partridge alleges that the review panel made a series of errors. Some of them appear to overlap. They are in summary as follows: 1. The review panel constructively failed to exercise its jurisdiction and statutory function, in that it did not conduct its own examination of the claimant despite it being possible to do so, and particularly in circumstances where more than six months had elapsed since the earlier assessment with Dr Myers so that the panel did not have evidence of Ms Partridge's condition and presentation at the time of its assessment and Dr Myers had not undertaken the necessary measurements or calculations to enable an assessment of the degree of whole person impairment of Ms Partridge's cervical spine to be conducted. Ms Partridge had specifically submitted that a re-examination should take place. 2. Further and in the alternative, in the event that Ms Partridge's 18 May 2018 submission was not forwarded to the review panel by SIRA, its decision not to re-examine her was made on a false premise regarding her wishes in this regard. The decision not to examine a claimant cannot properly be exercised on a false belief that the claimant does not seek examination. There was therefore a constructive failure to exercise jurisdiction. 3. The review panel failed to undertake its own assessment of Ms Partridge's cervical spine. 4. The review panel failed to respond to a substantial and clearly articulated argument advanced by Ms Partridge in submissions dated 22 January 2018, which were before the review panel, namely that the assessment conducted by Dr Myers was affected by legal error, there was evidence of immediate onset of neck pain following the motor accident and Dr Myers found significantly restricted movement in the cervical spine but failed to assess the actual ranges of motion so as to enable a whole person impairment assessment to be calculated. 5. The review panel failed to respond to a substantial and clearly articulated argument by Ms Partridge in her solicitor's letter dated 18 May 2018 that the review panel should examine her for themselves. 6. The review panel failed to afford procedural fairness to Ms Partridge by not giving her advance notice of its intention to proceed without an examination thereby denying her the opportunity to put on any further evidence or submissions in lieu of the information she would have been able to provide in person if examined. In particular, Ms Partridge was denied the opportunity to explain in further detail why she objected to the review panel proceeding without an examination, to correct any errors in the brief reasons given by Dr Myers, to flesh out the detail which was missing from the brief reasons given by Dr Myers and to update the description of her circumstances and symptoms. 7. The decision of the review panel was afflicted by legal unreasonableness in that no reasonable review panel could have properly denied Ms Partridge a personal interview and re-examination, given the significance of the issue of her own evidence to the issue of causation, and the significance that the review panel's impressions of her may have had on acceptance or otherwise of her evidence. 8. The review panel failed to comply with Clause 1.41 of SIRA's Motor Accidents Permanent Impairment Guidelines (made pursuant to section 44(1)(c) of the Act) in that it failed to bring its findings of inconsistencies to Ms Partridge's attention and to give her a chance to respond. 9. The review panel was obliged to set out lawful reasons for its determination pursuant to section 61(g) of the Act and clause 16.24 of the SIRA's Medical Assessment Guidelines dated 1 October 2008 made pursuant to sections 44(1)(d) and 65(1) of the Act, in particular as follows: 1. The review panel failed to explain why it found that "the first mention of any neck pain was no [sic] until some months after the subject accident" when it had earlier found that Ms Partridge's evidence was that she had felt pain in her neck immediately after the accident, and 2. The review panel failed to explain why it concluded that even if the cervical spine injury had been considered to be causally related to the accident, the injury would have been assessed at 0% in any case, in circumstances where there was evidence in the material before it that Ms Partridge's cervical spine gave rise to 5% whole person impairment, and in circumstances where Dr Myers had recorded significant restriction of movement in the cervical spine and had not actually performed the necessary measurements nor the necessary calculations to enable an assessment of whole person impairment of the neck to be conducted. 1. The review panel wrongly fixated on the absence of contemporaneous evidence relating to Ms Partridge's neck injury in circumstances where both the panel and Dr Myers had noted her history that included an injury to her neck in the accident and ongoing pain in her neck thereafter. The review panel impermissibly treated the contemporaneous medical material, or the absence thereof, as determinative. Further, the panel impermissibly sought to rely solely on contemporaneous medical material and not on Ms Partridge's case and/or her evidence. It failed to consider or take this into account as it was required to do. Further, the review panel placed undue or disproportionate weight on the alleged lack of contemporaneous documentation regarding the neck injury and the decision is therefore legally unreasonable.
Ms Partridge therefore contended that the Review Panel has committed error in law or fallen into jurisdictional error and/or has constructively failed to exercise its jurisdiction in respect of one or more of the above grounds of judicial review and the review panel decision and certificate are accordingly invalid and should be set aside.

The evidence

Ms Partridge relied upon the affidavit of Justin Timothy Stack sworn on 11 December 2018. Mr Stack was not cross-examined.
In her Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service dated 19 July 2016, Ms Partridge described the injuries sustained by her in the accident as including a "soft tissue" injury to the "neck area" and "whiplash". The medical certificate attached to the application was given by Ms Partridge's general practitioner following an examination of her on 28 December 2015, five days following the accident. The diagnosis referred to in the certificate described whiplash injury to the cervical spine and a recommendation that X-rays be obtained of that location.
Dr Alan Hopcroft, a general surgeon specialising in orthopaedics, examined Ms Partridge on 2 May 2017. He obtained a history of how she felt at the time of her original presentation to her general practitioner, including "vertigo and pain extending up the right side of her neck and into the right side of her face and head". On examination, Dr Hopcroft found that Ms Partridge had "pain to deep palpation in her cervical spine bilaterally with restriction in right and left lateral bending and left lateral rotation asymmetrically" as well as "most significant restriction in movement in [sic] extension".
A report prepared by Dr Joseph Scoppa dated 9 July 2017, following his examination of Mr Partridge on 4 July 2017, contained a similar history, including contemporaneous complaints of "persistent headache and neck pain".
Ms Partridge's own MAS Statement dated 25 July 2017 was also consistent with what she reported to these medical practitioners. Under the heading "Injuries and Disabilities", Ms Partridge said this: "3. When I landed I felt pain in my neck and in my left wrist. Shortly after the accident I also noticed pain in both of my shoulders and in my right ear with associated hearing loss. 4. I continue to experience pain, stiffness and restriction of movement in my neck most of the time. My neck regularly clicks. The pain is located in the back of my skull. The pain increases when I move my head up and down and from side to side. I have difficulty performing craning neck movements and reversing a motor vehicle. I also suffer from regular headaches."
Dr Payten's certificate issued following his examination of Ms Partridge on 13 November 2017 recited the history given by her. It included the following: "History of Symptoms and Treatment Following the Motor Accident Ms Partridge saw her general practitioner that afternoon complaining of a painful right-sided neck…"
Dr Myers' certificate issued following his examination of Ms Partridge on 23 November 2017 recited a similar history. It was relevantly as follows: "History of Symptoms and Treatment Following the Motor Accident She said her wrist became sore, so she went to see a locum GP that afternoon. She said her neck became sore, particularly about one week later."
Dr Myers' findings on clinical examination were as follows: "With regard to the vertebral column as a whole; There was no paravertebral muscle guarding or spasm. There was no scoliosis or loss of the lumbar or cervical lordosis. With regard to the cervical spine specifically: Lateral bending to the left and right as actively demonstrated by Mrs Partridge upon request by me was decreased by ⅓ in each direction equally. Flexion and extension were each decreased by ¼."
Dr Myers' conclusions were expressed in the following terms: "Conclusions Diagnosis and Causation Although there is no specific mention in her GP notes, Dr Mwakasendo did say that she had when he saw her on the day of the accident some neck issues, although he did not document that at the time. There was no mention in the general practitioner notes until May i.e. 5 months after the motor vehicle accident about complaints regarding the neck. Given that there was no contemporaneous documentation, I feel that I am not able to accept soft tissue injury to the cervical spine from the motor vehicle accident. Regardless, if it were to be accepted the assessment would not [sic, 'would'?] lead to a Whole Person Impairment of 0%."
It is unnecessary in detail for present purposes to record details of the written submissions provided by Ms Partridge's lawyers in support of her application for review of Dr Myers' assessment. It is sufficient to observe that those submissions included reference to the fact that Ms Partridge had made the complaints of neck pain in the ways and to the extent referred to in the medical reports and the two assessments of Drs Payten and Myers.
By letter dated 7 May 2018, Margot Undercliffe, the Review Proper Officer, wrote to Mr Stack indicating that the Review panel held a teleconference on 3 May 2018 and that it required further information. The Proper Officer's letter specifically said this: "Additional Information required The Panel requires the following information to assist in making a decision: • Clinical notes of any physiotherapist the claimant has attended upon for the period 1 year prior to the subject motor vehicle accident to date. • Clinical notes of the claimant's general practitioner, Dr Louise Fisher... for the period 1 year prior to the subject motor vehicle accident to date."
Significantly for present purposes, Mr Stack responded on 18 May 2018 in these relevant terms: "We now attach clinical notes of Dr Fisher as requested. As the history of our client's neck pain is in issue we submit that the Appeal Panel should examine her for themselves."
Other than an acknowledgment by the Proper Officer in her letter to Mr Stack dated 21 May 2018 of the receipt of Dr Fisher's clinical notes, Mr Stack's request that Ms Partridge be examined was neither responded to by the Proper Officer nor taken up by the Review Panel.
The Review Panel Certificate was issued on 10 July 2018. It relevantly contains the following passages: "B. Disputes identified by the Parties The Panel considered the matters cited in the Application for Review and all subsequent submissions and noted that the following aspects of the assessment were disputed: • Permanent impairment assessment of the claimant's cervical spine. The Applicant submitted that although the Assessor finds significant restriction in movements of the cervical spine, he had not assessed whole person impairment. The Assessor had dismissed causation for a cervical spine injury because of the lack of contemporaneous documentation. The Applicant notes that the general practitioner's medical certificate attached to the claim form, which refers only to an examination on the day of the accident, refers to a whiplash injury in the cervical spine. They also alleged the Assessor's conclusion was difficult to comprehend, in particular his statement that 'Regardless, if it were to be accepted the assessment would not lead to a Whole Person Impairment of 0%'. They submit this suggests there would be whole person impairment of the cervical spine. They add that the Assessor had in fact indicated he accepted that the claimant had some neck issues on the day of the accident, although the general practitioner did not document them at that time. The Panel considered the matters cited in the Reply to the Application for Review and noted that: • The respondent opposed the application. The Respondent submitted that the Assessor notes symmetrical range of motion of the cervical spine with nil neurological extension into the upper limbs and that the general practitioner's notes state 'nil spine tenderness'. And that their interpretation was that the Assessor stated he cannot support a whiplash injury based purely on subjective reports in light of not finding any assessable impairment on his clinical examination. The [sic] also contended that the Assessor found no causation due to lack of contemporaneous evidence, lack of evidence of treatment in the documentation and on his clinical assessment on the day of the assessment. 3. Matters Considered and Decided by the Panel The Review Panel considered afresh all aspects of the assessment under review. A. Evidence Considered The Panel considered all of the available evidence and decided that re-examination of the claimant was not necessary in order to reach a decision, because Assessor Myers had comprehensively recorded his history and clinical assessment. The Panel decided that additional information would assist them to make a decision, because of the issues raised in relation to causation of the neck injury. Accordingly the Panel instructed the secretary to issue a notice to both parties requesting provision of the following information, to be provided by 4 June 2018: • Clinical notes of any physiotherapist the claimant has attended upon for the period 1 year prior to the subject motor vehicle accident to date. • Clinical notes of the claimant's general practitioner, Dr Louise Fisher, The Marsh Street Medical Practice at 140 March Street, Armidale for the period 1 year prior to the subject motor vehicle accident to date. Arrangements were made for the Panel to be reconvened on 15 June 2018 to discuss the matter further. … Causation The Panel agreed with Assessor Myers and concluded there was a soft tissue injury to the left wrist arising from the subject accident. The Panel then considered the issue of causation of the neck injury. They agreed that the first mention of any neck pain was no [sic] until some months after the subject accident. Additionally, there was evidence in the negative, in that the general practitioner had particularly questioned Ms Partridge regarding any neck pain and she had responded in the negative. The Panel were also of the opinion that had there been a whiplash injury to the neck of any consequence, Ms Partridge would have sought treatment long before five months after the accident. The Panel were therefore of the opinion based on Assessor Myer's clinical assessment and all the available documentation that Ms Partridge had not sustained any significant neck injury as a consequence of the subject accident. They also noted that, IF causation HAD BEEN accepted, based upon their consideration of the available documentation, any neck symptoms after the subject accident were minor, and the subject accident would not have been a more than negligible cause of the current symptoms, which were due to age related degenerative change."
The Review Panel determined that the total percentage whole person permanent impairment for assessed injuries caused by the accident was 4%. The Review Panel explained that its findings in relation to the degree of permanent impairment were different to the findings stated in the Permanent Impairment certificate issued by Dr Myers because the panel assessed 4%, not 3%, based on Dr Myers' clinical examination findings. The Review Panel therefore determined that the original certificate should be revoked and that a new Permanent Impairment certificate should be issued.

Statutory scheme and procedural guidelines

Section 44(1) of the Motor Accidents Compensation Act is as follows: "44 Medical Guidelines of Authority (1) The Authority may issue guidelines ('Motor Accidents Medical Guidelines') with respect to the following: (a) the appropriate treatment of injured persons, (b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided), (c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, (d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4."
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 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) If a medical assessment under this Part (a 'combined certificate assessment') is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (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. (5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (6) Section 61 applies to any new certificate or new combined certificate issued under this section. (7) The Motor Accidents Medical Guidelines may limit the time within which an application under this section may be made."
The Medical Assessment Guidelines issued under s 44(1)(d) of the Act with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Part 3.4 of the Act include the following: "Review Panel assessment 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: … 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur."
Clauses 1.18, 1.21 and 1.41 of the Motor Accident Permanent Impairment Guidelines (effective from 1 June 2018) should also be noted. They provide respectively as follows: "1.18 An assessment of the degree of permanent impairment involves three stages: 1.18.1 a review and evaluation of all of the available evidence including: • medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) • medico-legal reports • diagnostic findings • other relevant evidence 1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in the Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and 1.18.3 the preparation of a certificate using methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced. 1.21 The evaluation should only consider the impairment as it is at the time of the assessment. 1.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness."
The Motor Accidents Authority Medical Assessment Service has issued a Review Panel Practice Note 3/2005 dealing with the Review Panel Process. The Practice Note indicates that it was provided to Review Panellists in accordance with s 65(2) of the Act "to promote accurate and consistent [reviews of] medical assessments". Clause 1 is as follows: "1. A review by a Review Panel of a medical assessment under s 63(4) of the Motor Accidents Compensation Act 1999…is to be undertaken by reference to the following principles: a. The Review Panel must stand in the shoes of the original medical Assessor and remake each of the decision/s made by the previous medical Assessor. … c. The Review Panel must be satisfied, from the available information, that the correct and/or preferable decision has been made and that any incorrect aspects of the assessment under review are corrected. … e. The Review Panel may conduct the review in the manner they see fit, subject to the rules of procedural fairness. f. Review Panel decisions are objective, consistent and clearly explained. … h. Reviews are conducted in a manner that is impartial and procedurally fair."
Clause 3 contains the following information: "Discussion of the relevant evidence: The Chairperson should encourage discussion of the relevant evidence in relation to each of the issues considered, ensuring that the views of all Panel members who wish to express a view or a tentative view are elicited. a. The Chairperson should ensure that the Panel has considered and reached a decision on the following questions: i. Is a re-examination of the injured person required in order to be satisfied that the correct decision is made?"
Finally, clause 4 of the Practice Note provides in part as follows: "4. Whether Re-examination is required: a. General Principles: i. The Review Panel should generally include a re-examination of the claimant, except in cases where there is no dispute, ambiguity or uncertainty as to the clinical findings that are required in order to complete all aspects of the assessment. ii. If the Review Panel is informed that a party has objected to the review being conducted 'on the papers', then the Panel should generally conduct a re-examination. iii. A re-examination should generally be conducted by more than one Panel member, unless all Panel members are satisfied that, having regard to the circumstances of the case, examination by a single Panel member is appropriate. iv. Generally where the credit of the claimant is in issue, a re-examination by more than one Panel member should be conducted."

Consideration

Although Ms Partridge has articulated several ways in which she contends that the Review Panel made errors, it is sufficient in my view to dispose of the appeal by reference to her complaint that it did not examine her in accordance with her request to do so. Whether formulated as an allegation of procedural unfairness or a constructive failure on the part of the Review Panel to exercise its statutory function or a failure to respond to a clearly articulated argument, the significant thrust of her contentions is that the Review Panel should have examined her when asked.
Mr Stack's letter was clear. His request that Ms Partridge be re-examined was either ignored or overlooked. It should not have been.
The statutory scheme and procedural guidelines in this respect are clear. Some of these provisions are recorded earlier in these reasons. They were thoroughly and comprehensively reviewed by the Court of Appeal in Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22.
In Boyce, a driver suffered injuries in a motor vehicle accident and brought proceedings in negligence against the other driver. The injured driver underwent separate assessments for different injuries. The defendant's insurer applied for and was granted a review of a certificate relating to an injury to the driver's bladder. The injured driver was notified of the review and invited to advise if she objected to the Review Panel proceeding under s 63A(3A) of the Act without examining her. Her solicitor twice informed the State Insurance Regulatory Authority that she did object. The Review Panel was not made aware of the objection and completed its assessment without conducting a re-examination. The Review Panel revoked the original certificate. The new assessment brought the injured driver's combined whole person impairment below the 10% threshold for damages for non-economic loss set by s 131 of the Act.
In Boyce, Sackville AJA said this: "[130] The Practice Note constituted a public pronouncement that the Review Panel, if the appellant objected to the review being conducted on the papers, would 'generally' conduct a re-examination. The Review Panel clearly accepted that it should proceed consistently with the Practice Note, since the letter it sent to the appellant's solicitor was drafted by reference to the language in the Practice Note. [131] Independently of the Practice Note, by virtue of the PI Guidelines the Review Panel was obliged, wherever possible, to obtain the information specified in the AMA 4 Guidelines necessary to determine the percentage impairment. Clearly in this case a re-examination of the appellant was possible. It may be accepted that it was for the Review Panel to make a judgment as to whether a re-examination was 'necessary to determine the percentage impairment' referable to the injuries to the appellant's bladder. But in making that judgment the Review Panel had to take into account not merely the objective clinical manifestations of the appellant's condition, but (in the language of the AMA 4 Guidelines) the impact of the appellant's urinary condition on her ability to perform the activities of daily living. The fact (unknown to the Panel) that the appellant not only wished to be re-examined but considered a re-examination essential if the Review Panel was to make its decision afresh, was clearly material to the question of whether a re-examination was 'necessary to determine the percentage impairment'. [132] In these circumstances, the Authority's failure to inform the Review Panel that the appellant insisted on a re-examination resulted in practical injustice in at least two respects. First, the Review Panel was unable to take into account the appellant's objection when considering whether or not the general rule stated in par 4(a)(ii) of the Practice Note should be followed because the Review Panel was not told that she objected to the review being conducted unless a re-examination took place. Secondly, the Review Panel was unable to make a fully informed decision as to whether a re-examination was 'necessary to determine the percentage impairment' unless it took into account that the appellant considered a re-examination to be essential for the proper discharge of the Review Panel's statutory functions. [133] The Review Panel's judgment on these matters had to be made for the purpose of assessing the degree of the appellant's permanent impairment or as at the date of the assessment. That task, as has been noted, did not merely require the Review Panel to make an objective clinical judgment about the nature and extent of the physical damage to the appellant's bladder. The Review Panel had to assess the impact of the physical damage on the appellant's 'activities of daily living'. The appellant's own experiences and her perceptions of the impact of her condition on her daily life were directly relevant to that question. [134] In my view, this is a case where the procedure adopted by the Review Panel, albeit through no fault of the members, denied the appellant a fair opportunity to be heard and therefore resulted in practical injustice. The appellant was denied the opportunity to have the Review Panel make a fully informed decision, in accordance with the published criteria, as to whether it should conduct a re-examination."
I am unable to discern any relevant basis upon which to distinguish Boyce from the present circumstances. Ms Partridge requested that she be re-examined. The correspondence between her solicitor and the proper officer makes this clear. What is less clear is why the request was not complied with or whether it was drawn to the attention of the Review Panel. However, nothing turns on the answer to either of these questions. Ms Partridge was not given the opportunity to provide further evidence or material concerning her condition to the Review Panel. That was at least a denial of procedural fairness.
Nor is it germane for me to inquire what might have resulted if Ms Partridge had been re-examined. My role is not to determine whether re-examination might have had some or any impact upon the Review Panel's ultimate conclusion. If Ms Partridge was denied procedural fairness, it cannot be demonstrated that the absence of fairness did not deprive her of the possibility of a successful outcome. In any event, as Basten JA said in Boyce at [74]: "A judicial determination that an opportunity to provide further evidence or material could not have affected the outcome is fraught with difficulty."
The first defendant did not contend that the grant of relief would be futile.
It becomes in these circumstances strictly unnecessary to consider the other ways in which Ms Partridge has formulated her assault upon the Review Panel's decision, including Ms Partridge's challenge to the Review Panel's certificate based upon what she contended was its undue or inappropriate reliance or emphasis upon an asserted absence of recorded contemporaneous complaints by her of neck pain. It is sufficient to note that a Review Panel will have fallen into error if its reasoning process indicates that the absence of such contemporaneous material has been treated as determinative: see, for example, Bradley v Insurance Australia Ltd (2015) 71 MVR 496; [2015] NSWSC 950; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888; McHenry v Insurance Australia Limited [2019] NSWSC 68; Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650; and Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211.

Relief

Subject to any further or other orders for which either of the active parties in these proceedings might wish to contend, I consider that the following orders should be made: 1. Order that the Review Panel certificate dated 10 July 2018 be set aside. 2. Remit the matters the subject of the Review Panel decision and the Review Panel certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel to be dealt with according to law. 3. Order that the first defendant pay the plaintiff's 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: 21 June 2019

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