Purnell v Pittendridge and Anor

Supreme Court of NSW|2013-03-06|Before: Johnson J

Judgment 1JOHNSON J: By Amended Summons filed 14 September 2012, the Plaintiff, Kim Louise Purnell, seeks relief under s.69 Supreme Court Act 1970 with respect to a decision of a Review Panel under s.63 Motor Accidents Compensation Act 1999 ("MAC Act"). The Plaintiff's claim for relief is resisted by the CTP Insurer for the First Defendant, Dorothy Pittendridge. The Second Defendant, Motor Accidents Authority of NSW ("MAA"), submits to the orders of the Court except as to costs.

Factual Background 2The Plaintiff was born in 1972. 3On 22 March 2000, the Plaintiff was injured in a motor vehicle collision at Grafton involving a vehicle driven by the First Defendant ("the 2000 accident"). 4Liability was accepted by the CTP Insurer by letter dated 23 June 2008. The 2009 Medical Assessment 5The Plaintiff made her first Medical Assessment Service ("MAS") application on 15 June 2009. On 15 September 2009, the medical dispute between the Plaintiff and the CTP Insurer was referred to Assessor Brian Noll. Assessor Noll was asked to certify (Exhibit A, pages 9-10): "· The list of the injuries referred and whether they were each found to have been caused by the accident. · The degree of permanent impairment of the injured person as a result of each of those injuries referred that were found to be caused. · Whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused, is greater than 10%." 6The referral identified the list of injuries to be assessed as follows: "1. Head - complex regional pain syndrome. 2. Neck - complex regional pain syndrome. 3. Shoulder girdle - complex regional pain syndrome. 4. Right arm - complex regional pain syndrome. 5. Right wrist - complex regional pain syndrome. 6. Right hand - complex regional pain syndrome." 7On 8 December 2009, Assessor Noll issued a certificate under Part 3.4 MAC Act. 8Assessor Noll concluded, on the basis of available information, that the Plaintiff probably sustained a soft tissue strain-type injury of her neck, and a probable soft tissue injury of her right upper extremity at the time of the 2000 accident. 9Assessor Noll noted that the Plaintiff complained of widespread symptoms in relation to her head, the right side of her neck and right upper extremity of a neuropathic type. Assessor Noll observed that, in accordance with paragraph 2.14 of the MAA Guidelines, a diagnosis of complex regional pain syndrome ("CRPS") required at least eight of 11 specified criteria to be present, and that clinical findings did not fulfil the criteria for CRPS in relation to the Plaintiff's head, neck, shoulder girdle, right arm, right wrist or right hand. 10Assessor Noll determined that the following injuries were caused by the 2000 accident: (a) neck - soft tissue injury; (b) right upper extremity - soft tissue injury. 11Assessor Noll concluded that the following injuries were not caused by the 2000 accident: (a) head - CRPS; (b) neck - CRPS; (c) shoulder girdle - CRPS; (d) right arm - CRPS; (e) right wrist - CRPS; (f) right hand - CRPS. 12With respect to the cervical spine, Assessor Noll attributed 0% whole person impairment ("WPI") to the 2000 accident, and 7% WPI to the right upper extremity. The total degree of permanent impairment caused by the 2000 accident was assessed at 7%. The Further Medical Assessment in 2011 13In March 2010, the Plaintiff required a temporary ileostomy procedure, followed by a permanent ileostomy in December 2010. These procedures arose after prolonged treatment of the Plaintiff with narcotic analgesics. 14On 8 June 2011, the Plaintiff made a MAS application for further assessment of an impairment dispute. 15In a Reply dated 29 August 2011, the CTP Insurer did not concede that the Plaintiff's requirement for the use of pain-killing medications which commenced from June 2006, arose due to the injuries sustained in the 2000 accident (Exhibit A, page 56, 62). 16On 11 November 2011, the MAS referred the medical dispute to Assessor Phillippa Harvey-Sutton for further medical assessment. The written referral stated (Exhibit A, page 80): "This further medical dispute has been referred to you to certify: · the list of the injuries referred and whether they were each found to have been caused by the accident; · the degree of permanent impairment of the injured person as a result of each of those injuries referred were found to be caused; and · whether the degree of permanent impairment of the injured person as a result of those injuries referred that were found to be caused is greater than 10%. This matter has previously been assessed by the Medical Assessment Service (MAS). It is referred for reassessment on the grounds of deterioration or new information about the injury which may have a material effect on the outcome." 17The referral identified the list of injuries to be assessed as follows (Exhibit A, page 81): "List of Injuries to be Assessed 1. Colon - Ileostomy." 18Assessor Harvey-Sutton conducted an assessment of the Plaintiff on 16 December 2011, and issued a further certificate under Part 3.4 MAC Act on 23 December 2011 (Exhibit A, pages 83-97). 19After assessing the referred injury, Assessor Harvey-Sutton made the following finding (Exhibit A, page 83): "Of the injuries referred to me for assessment, none were related to the motor accident. An assessment of the degree of permanent impairment of those injuries is, therefore, not required." 20Assessor Harvey-Sutton set out a detailed history, as provided by the Plaintiff, which was dictated in the Plaintiff's presence and confirmed (Exhibit A, pages 85-90). Pertinent features of this history included the following: (a) having undertaken intensive physiotherapy and attended an osteopath for six to seven weeks following the 2000 accident, the Plaintiff woke up one morning with no pain, no colour changes, no swelling and no symptomatology at all in the upper right limb - the symptoms had "disappeared" and she had no symptoms at all; (b) the Plaintiff had no symptoms during her pregnancies in 2002 and 2004; (c) the Plaintiff took no medications from about March 2000 through 2001, 2002, 2003, 2004 and 2005; (d)the Plaintiff was under stress during this period (2000-2005) as she initially had to take over the running of two service stations when her partner had a nervous breakdown; (e) the Plaintiff indicated that, in about June 2006, she was doing the washing and suddenly felt a pain in the right arm - the pain progressed and persisted; (f) the Plaintiff was initially prescribed Panadol and then Voltaren, and subsequently Tramadol, Tegretol and Valium - after a couple of months, she started taking morphine tablets which she took up to the time of the ileostomy in March 2010 - following March 2010, the Plaintiff went on to liquid morphine, Ordine drops, taking 7mg/ml every four hours. 21Assessor Harvey-Sutton noted the conclusions expressed by Assessor Noll with respect to injuries which were, and were not, caused by the 2000 accident (see [10] and [11] above), and stated (Exhibit A, page 93): "I would add that I confirm Assessor Dr Brian Noll's list of conditions causally and not causally related to the subject motor vehicle accident." 22Assessor Harvey-Sutton adverted to a submission from the Plaintiff's solicitors that the development of the Plaintiff's gastroenterological problems had "been relevantly caused by the motor vehicle accident, albeit indirectly", accompanied by an assertion that the "pain, established by medical evidence and previous assessment by Assessor Noll, has led to medication dependency and long term use, which in turn has led to internal colonic and liver problems, which in turn have led to an ileostomy". After reciting that submission, Assessor Harvey-Sutton observed (Exhibit A, page 94): "In reply, I would note that · Under MAA methodology, she does not suffer from complex regional pain syndrome. · Any symptomatology she had following the subject motor vehicle accident of 2000 settled by June 2000 - she told me that and also it is documented, She indicated she had no aches or pains or problems and took no medication from mid-2000 to mid-2006 - a time during which she was pregnant twice and her medication history would have been noted and relevant." 23Reference was made to other reports provided on behalf of the Plaintiff. At one point, Assessor Harvey-Sutton said (Exhibit A, page 95): "I note the medical report of Dr Mark Cornwell, dated 5 May 2009. It was noted that she developed a complex regional pain syndrome apparently first in 2001 and has been treated for this since 2006. With the greatest respect, Ms Purnell told me that three days after the accident that her right arm became swollen, with colour changes, and this settled suddenly after about six to seven weeks of osteopathic treatment. She had no symptomatology, and no analgesia or other medication, during her pregnancies of 2002 and 2004. · Based on the history I was given and the accompanying documentation, the complex regional pain syndrome described in 2006 was a de novo event." 24Assessor Harvey-Sutton observed a little later (Exhibit A, page 95): "I note the medical report of Dr Mark Cornwell dated 22 June 2010 indicating that, "I saw her some time ago regarding her chronic colonic inertia related to treatment of her complex regional syndrome." · I would interpolate and comment that as indicated above, the issue is that she developed complex regional pain syndrome some six years after the accident and some six years after she had been pain free, had no other symptomatology in the right upper limb and had not been taking any medication of any kind." 25Assessor Harvey-Sutton concluded her report in the following way (Exhibit A, page 96): "Diagnosis and Causation Based on the history as given to me and the accompanying documentation, including medical reports of her treating practitioners: · Ileostomy is not causally related to the subject motor vehicle accident. Summary of Injuries Listed by the Parties and Caused by the Accident The following injuries WERE NOT caused by the motor accident: · Ileostomy." The 2012 Medical Review Panel Assessment 26On 24 February 2012, the Plaintiff made application under s.63 MAC Act for referral for review of Assessor Harvey-Sutton's medical assessment to a Review Panel of medical assessors (Exhibit A, pages 98-107). 27The Proper Officer of the MAA accepted the application for referral to a Review Panel, with that review being undertaken by a panel comprising Assessor Mark Burns, Assessor Stephen Buckley and Assessor Richard Crane. 28On 24 April 2012, the Review Panel issued a Review Panel Certificate which, for the purpose of s.63(4) MAC Act, confirmed the Certificate of Assessment of Assessor Harvey-Sutton (Exhibit A, pages 1-6). 29The formal assessment of the Review Panel was expressed in the following way (Exhibit A, pages 1-2): "The Panel confirms the certificate dated 23 December 2011 which states as follows: Of the injuries referred to me for assessment, none were related to the motor accident. An assessment of the degree of permanent impairment of the injuries is, therefore, not required. The following injuries caused by the motor accident give rise to a whole person impairment which, in total, IS NOT GREATER THAN 10%: · Nil injuries related to the motor accident." 30The Review Panel set out its approach to the issue of causation concerning the 2000 accident and the ileostomy (Exhibit A, pages 3-4): "Causation The Panel understands the appellants's [sic] claim is that the need for an ileostomy arose because of severe constipation consequential upon prolonged treatment with narcotic analgesics following the physical injuries sustained in the motor vehicle accident of 22 March 2000. Further, it is the Panel's opinion on considering all documentation that the predominant opinion of other medical practitioners is that all symptoms of discomfort following the subject motor vehicle accident had subsided some six or seven weeks after the accident. There was indeed no need to take analgesics until a subsequent incident in 2006 while the applicant was doing some washing with the onset of pains in the right side of the face, the right side of the upper chest including the breast as well as back and right shoulder including the shoulder blade. Following that incident, narcotic analgesics were commenced." 31The Review Panel then adverted to medical notes and reports, which were taken into account, and then adverted to the reasons of Assessor Noll, in a manner which has given rise to controversy before this Court. The Review Panel said (Exhibit A, page 4): "The Panel considered in detail the Certificate provided for the Motor Accident Authority by Assessor Brian Noll dated 8 December 2009 in which part of his history notation indicated that he had been told by the applicant that six or seven weeks after the subject motor vehicle accident 'she woke one morning to find a pain in the neck and right arm had resolved completely'. She further informed Dr Noll that she remained largely symptom free from that time until June 2006. The Panel has consequently considered there is inconsistency with this history given to Assessor Noll with his finding that the examination findings of restricted range of motion of the right upper extremity during his examination of the applicant were causally related to the subject motor vehicle accident with his consequentially assessing 7% Whole Person Impairment. Assessor Noll indicated he did not find the required features to come to a diagnosis of Complex Regional Pain Syndrome." 32After mention of a further medical report, the Review Panel referred to the assessment by Assessor Harvey-Sutton, and then expressed a conclusion on the causation issue (Exhibit A, page 5): "The Panel noted that Assessor Philippa [sic] Harvey-Sutton had taken a history from the applicant when she indicated that six or seven weeks after the accident, the problems in the right upper extremity had disappeared 'altogether' and she said there were no remaining symptoms. There was no indication for taking medications from March 2000 through to 2005. Following the incident while doing some washing in June 2006, significant pains had occurred which shortly after required the taking of narcotic analgesics which continued and was associated with a feeling of abdominal pain and bloating eventually leading to the need for the performing of an ileostomy to relieve a megacolon problem. The Panel has noted that Assessor Harvey-Sutton was convinced that there were no problems with the taking of narcotic medication in the six year period from 2000 to 2006 and consequently there was no causation related to the subject motor vehicle accident as concerns the occurrence of significant constipation leading to the need for the performing of an ileostomy. The Panel believes that on balance the overwhelming evidence is that there was no use of narcotic medication in the six year period between 2000 and 2006 and consequently causation has not been demonstrated as concerns the occurrence of severe constipation as related to the subject motor vehicle accident occurring in March 2000." 33Under a heading "Permanent Impairment", the Review Panel expressed the following conclusion (Exhibit A, page 5): "The Panel has determined that causation has not been shown in the matter of the need for performing an ileostomy to treat severe constipation and therefore permanent impairment related to the subject motor vehicle accident has not occurred." 34Thus, the Review Panel determined that the 2000 accident was not a cause of the Plaintiff's severe constipation requiring the performance of an ileostomy. 35On 7 August 2012, the Plaintiff commenced proceedings in this Court seeking prerogative relief with respect to the Review Panel's decision of 24 April 2012. On 14 September 2012, an Amended Summons was filed which is the subject of the present claim for relief.

Relevant Features of the Statutory Scheme 36A claimant under the MAC Act is not entitled to damages for non-economic loss unless the degree of permanent impairment, as a result of injuries caused by the accident, is greater than 10%: s.131 MAC Act. 37A "medical dispute" arose between the Plaintiff and the CTP Insurer relating to a "medical assessment matter", being the question whether the degree of permanent impairment of the Plaintiff as a result of the injury caused by the motor accident is greater than 10%: s.58(1)(d) MAC Act.

38Relevant parts of the statutory scheme in the MAC Act were described in the following way by Beazley JA (as her Honour then was) in Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at 598 [7]-[10]: "[7] The MAC Act provides for a scheme of compulsory third-party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. The objects of the Act include: to encourage early and appropriate treatment and rehabilitation: s 5(1)(a); to provide compensation for compensable injuries sustained in motor vehicle accidents and to encourage the early resolution of such claims: s 5(1)(b); and to keep third-party premiums affordable: s 5(1)(d). Section 5(2)(b) provides that the law relating to the assessment of damages in claims under the Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries. [8] The MAC Act, Ch 3 deals with motor accident injuries. Pursuant to s 44, the Authority may issue guidelines, known as the MAA Medical Guidelines, with respect to, inter alia, the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident: s 44(1)(c); and the procedures for the referral of disputes for assessment or review of assessments: s 44(1)(d). [9] Part 3.4 deals with the medical assessment of claims. Pursuant to s 59, the Authority is required to appoint medical assessors for the purpose of conducting medical assessments under the MAC Act. Section 60 provides that a medical dispute may be referred to the Authority for assessment by either party to the dispute or by a court or claims assessor and the Authority is to arrange for the dispute to be so referred. As this matter relates to a referral by a party, reference will only be made hereafter to such referrals. [10] A medical assessor to whom a medical dispute is referred is required to give a certificate as to the matters referred for assessment: s 61(1). Any such certificate is conclusive evidence as to the matters certified, relevantly, in any assessment by a claims assessor in respect of the claim concerned: s 61(2). There are exceptions to s 61(2) which are not presently relevant." 39Section 62 provides for referral of a matter for further medical assessment. This power was exercised here, where a further medical assessment was undertaken by Assessor Harvey-Sutton. Section 62 provides: "62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency." 40Section 63 makes provision for review of a medical assessment by a Review Panel of medical assessors. The Plaintiff sought, and was granted, a review of Assessor Harvey-Sutton's medical assessment. Section 63 provides: "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 MAA Medical Guidelines may limit the time within which an application under this section may be made." 41The MAA Permanent Impairment Guidelines are a form of delegated legislation: Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC 881; 75 NSWLR 482 at 498 [83]. Paragraphs 1.7-1.9 of the MAA Permanent Impairment Guidelines, which commenced on 1 October 2007, make provision for causation of injury: "Causation of injury 1.7 An assessment of permanent impairment is as prescribed under section 58 (1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows. 'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a nonmedical determination. This therefore involves a medical decision and a non-medical informed judgement. 1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes." 42Paragraphs 2.13-2.14 of the MAA Permanent Impairment Guidelines provide for impairment of the upper extremity due to CRPS: "Impairment of the upper extremity due to complex regional pain syndrome 2.13 The section, "Causalgia and Reflex Sympathetic Dystrophy" (p 56, AMA 4 Guides) should not be used. These conditions have been better defined since publication of the AMA 4 Guides. The current terminology is Complex Regional Pain Syndrome (CRPS) type I (referring to what was termed Reflex Sympathetic Dystrophy) and Complex Regional Pain Syndrome type II (referring to what was termed Causalgia). 2.14 For a diagnosis of Complex Regional Pain Syndrome at least eight (8) of the following 11 criteria must be present. The criteria are: skin colour that is mottled or cyanotic; cool skin temperature; oedema; skin dry or overly moist; skin texture that is smooth and non elastic; soft tissue atrophy (especially fingertips); joint stiffness and decreased passive motion; nail changes with blemished, curved or talon-like nails; hair growth changes with hair falling out, longer or finer; x-rays showing trophic bone changes or osteoporosis; bone scan showing findings consistent with CRPS."

Scope of Relief Under s.69 Supreme Court Act 1970 43Relief under s.69 Supreme Court Act 1970 is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176. 44The face of the record includes the reasons expressed by the Review Panel: s.69(4) Supreme Court Act 1970. 45In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ (at 179) identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 46In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error outlined in Craig v South Australia, and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 47The reasoning in Craig v South Australia is not to be seen as providing a rigid taxonomy of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 574 [73]. However, the principles in Craig v South Australia constitute a sufficient statement where, as here, error is said to have been committed by an administrative decision maker exercising functions under s.62 MAC Act. 48The grant of prerogative relief is discretionary: Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 at 303-304 [224]-[227]; Rodger v De Gelder at 613 [84].

The Plaintiff's Claim for Relief 49The Plaintiff seeks prerogative relief setting aside the certificate of the Review Panel dated 24 April 2012, and remitting the matter to the MAS for referral by the Proper Officer to a Review Panel under s.63 MAC Act for determination according to law. 50The Plaintiff contends that the Review Panel: (a) fell into jurisdictional error; (b) committed an error of law on the face of the record; (c) denied the Plaintiff procedural fairness; and (d) failed to give reasons as required by law. 51The Amended Summons did not identify express grounds of review. The written submissions of Mr Harrington, counsel for the Plaintiff, asserted, in a number of respects, jurisdictional error, error of law on the face of the record, denial of procedural fairness and a failure to give reasons. Ms Allars, counsel for the First Defendant, responded to these propositions as the effective grounds relied upon by the Plaintiff. I will adopt a similar approach in this judgment.

Suggested Errors of Law on the Face of the Record or Jurisdictional Error With Respect to Causation The Plaintiff's Submissions 52Counsel for the Plaintiff submitted that the Review Panel had not applied the correct test of causation, in considering the referred question as to whether there was a causal link between the 2000 accident and the ileostomy. 53It was submitted that the certificate of Assessor Noll determined conclusively a 7% WPI flowing from the 2000 accident, in the form of soft tissue injury to the neck and soft tissue injury to the right upper extremity. There had been no application to review this aspect. The application for further assessment made by the Plaintiff concerned a different question, namely whether there was a causal link between the 2000 accident and the ileostomy and, if so, the WPI percentage which ought be calculated as a result. 54Mr Harrington submitted that Assessor Harvey-Sutton and the Review Panel had, in effect, overturned the findings of Assessor Noll which were not under challenge. 55Further, Mr Harrington submitted that, whilst Assessor Noll's findings stood, it was necessary for the Review Panel (and Assessor Harvey-Sutton before then) to apply the test of causation laid down in the MAA Permanent Impairment Guidelines, with the view to answering the referred question. Counsel submitted that the Review Panel had become distracted by the CRPS issue. 56It was submitted for the Plaintiff that Assessor Harvey-Sutton, and then the Review Panel, ought to have concluded that, as a result of the symptoms suffered by the Plaintiff in the region of the neck and right arm, she had taken large quantities of medication and undergone significant medical treatment leading to the ileostomy. 57Mr Harrington relied upon the decision of SG Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245. It was submitted that application of a wrong test of causation constitutes error of law on the face of the record, and that this is effectively what has occurred in the present case. 58Mr Harrington submitted that, following the approach required by law and the conclusive certificate of Assessor Noll on the diagnosis, causation and permanency of the Plaintiff's soft tissue injuries, the conclusions of the Review Panel ought to have been: (a) the Plaintiff suffered soft tissue injury to the neck and right upper extremity as a result of the 2000 accident; (b) after several transient episodes between 2000 and 2006, the Plaintiff suffered from ongoing pain as a result of these injuries, whether or not the injuries amounted to CRPS clinically or medically or pursuant to AMA 4 Guides, and whether or not some other condition also contributed to the pain (although both Assessor Noll and Assessor Harvey-Sutton did not accept that there was any other condition); (c) due to this pain, the Plaintiff was prescribed and consumed large quantities of medication, at least since 2006; (d) as a result of this medication, the Plaintiff developed major abdominal symptoms requiring a surgical ileostomy which eventually became permanent; (e) as a matter of common sense, in the March v Stramare [1991] HCA 12; 171 CLR 506 sense, the ileostomy was therefore caused by the 2000 accident; (f) the ileostomy, on application of AMA 4 Guides, equates to an assessment of 15%-20% WPI as a result of the 2000 accident; (g) the Plaintiff suffers from greater than 10% WPI as a result of the 2000 accident, even without taking Assessor Noll's assessment of 7% WPI into account. 59Mr Harrington contends, in effect, that application of the correct principles to the facts of the case, and taking into account Assessor Noll's certificate, ought to have led inevitably to the finding of a causal link between the 2000 accident and the ileostomy. The First Defendant's Submissions 60Ms Allars submits that the Plaintiff seeks a form of merits review of the Review Panel decision, which was not available in proceedings of this type. The Review Panel had made a statutory decision that was lawful and open to it. 61It is submitted that the whole matter had been referred to Assessor Harvey-Sutton, and not just part of the medical dispute, so that the findings of Assessor Noll were open to further consideration. This submission was based upon the terms of s.58(1)(d) and s.62 MAC Act. 62Ms Allars submits that there had been no failure on the part of the Review Panel to apply the test of causation. The Review Panel had found no causal relationship whatsoever, after considering whether there was an indirect relationship between the 2000 accident and the consumption of narcotic medication by the Plaintiff, in relation to the soft tissue injuries that occurred in 2000. 63Having undertaken this task, it was submitted that the Review Panel was unable to find any indirect relationship with the performance of the ileostomy. Ms Allars submitted that, properly understood, the decision in Owen v Motor Accidents Authority of NSW did not assist the Plaintiff in this case. Resolution of Competing Submissions on Causation Issue 64The question for the Court is whether the Plaintiff has established relevant error of law on the face of the record or jurisdictional error. Judicial review proceedings such as this are distinct in nature from an appeal or review: Allianz Australia Insurance Limited v Sprod [2011] NSWSC 1157; 59 MVR 250 at [57]-[59], Allianz Australia Insurance Limited v Sprod [2012] NSWCA 281; 61 MVR 547 at [41]. 65Merits review is not permissible in judicial review proceedings, which are concerned with legality: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 40; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. 66The reasons of the Review Panel under challenge must be read as a whole and be considered fairly. The reasons ought not be scrutinised in an overzealous fashion in judicial review proceedings, looking for some error or inadequacy in expression: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 272, 291. 67It is necessary to keep in mind, as well, that the task of the Review Panel was not limited to a review only of the aspect of the assessment of Assessor Harvey-Sutton that was alleged to be incorrect. The function of the Review Panel was to proceed "by way of a new assessment of all the matters with which the medical assessment is concerned": s.63(3A) MAC Act. In this case, the Review Panel did conduct its own review and medical assessment as required by the statute. 68I accept that the findings of Assessor Noll and his certificate were not under challenge in the further assessment process leading to the findings of Assessor Harvey-Sutton and, on review, the Review Panel. No challenge had been made by way of application for review following the issue of the certificate by Assessor Noll. The further assessment was undertaken on the application of the Plaintiff because of further developments, including the ileostomy in 2010. The referred issue was whether there was a causal link between the 2000 accident, and the injuries sustained in that accident, and the ileostomy. 69A fair reading of the reasons of Assessor Harvey-Sutton indicates that she took the approach of accepting the findings of Assessor Noll, for the purpose of considering the referred issue. So much is clear from the passage in the reasons of Assessor Harvey-Sutton referred to earlier (at [21]). 70To the extent that the Review Panel appears to have raised a question, as a side comment, concerning the finding of Assessor Noll, this should be treated as obiter dicta only, not forming part of the reasoning process of the Review Panel. I will return to this aspect later in the judgment in the context of the claim of denial of procedural fairness. However, I am not persuaded that the Review Panel's approach to Assessor Noll's assessment gives rise to jurisdictional error or error of law on the face of the record. 71It is important to keep in mind that the members of the Review Panel were applying their collegiate professional expertise in undertaking the medical assessment functions under the MAC Act. These are essentially practical tasks, which ought not be rendered unduly complex by legal terminology: Ackling v QBE Insurance (Australia) Ltd at 498-499 [82]-[86]. 72I agree with the statement of SG Campbell J in Owen v Motor Accidents Authority of NSW at 248 [11]-[12], 252 [27], that there is a legal aspect to the causation issue to be considered by the Review Panel, in the exercise of its statutory function. It has not been demonstrated that the Review Panel erred in exercising this function. 73The Review Panel considered the material before it, including the Plaintiff's history as provided to medical practitioners and to Assessor Harvey-Sutton, and concluded that there was no causal link between the 2000 accident (and the injuries flowing from that accident) and the ileostomy. 74I do not consider that the findings made in the factual context of Owen v Motor Accidents Authority of NSW bear upon the resolution of the present case. There, SG Campbell J inferred, in effect, from the failure of the Review Panel to consider certain material, that it had applied too narrow a test of causation: Owen v Motor Accidents Authority of NSW at 255-258 [42]-[52]; AAMI Ltd v Ali [2012] NSWSC 969; 62 MVR 12 at 26 [47]-[48]. It has not been demonstrated by the Plaintiff that this occurred in the present case. 75Mr Harrington does not contend that relevant error is demonstrated by the Review Panel not setting out the test of causation in its reasons. Rather, he submits that the Review Panel failed to apply the correct test of causation, and that this is clear from its reasons. I do not accept this submission. 76The Review Panel could find no causal link at all between the 2000 accident and the injuries sustained in the accident, and the ileostomy in 2010. 77In truth, the conclusion urged for by the Plaintiff involves an invitation to the Court to reach its own findings on the facts, as if on appeal, and to substitute those findings for those of the Review Panel. That is not the function of this Court in proceedings of this type. 78It is necessary for the Plaintiff to establish jurisdictional error or error of law on the face of the record with respect to the approach adopted in resolving the causation issue. I am not persuaded that such error has been demonstrated in the circumstances of this case.

Suggested Jurisdictional Error by Reference to Relevant and Irrelevant Considerations Submissions of the Parties 79Mr Harrington submitted that the Review Panel fell into jurisdictional error by: (a) failing to consider a relevant consideration, namely to identify and consider the nature of the medical dispute referred for consideration - the degree of impairment arising out of the injury to the colon (the ileostomy) which was said to be causally related to the 2000 accident; it was submitted, as well, that Assessor Harvey-Sutton had asked herself, incorrectly, whether the Plaintiff's consumption of medication was related to CRPS, without consideration of the relationship between the medication and the soft tissue injuries; (b) failing to consider a relevant consideration in failing to take notice of the conclusiveness of the findings of Assessor Noll and, specifically, the findings that the Plaintiff had permanent soft tissue injury to the neck and right upper extremity which was caused by the 2000 accident, and that the Plaintiff did not satisfy the diagnostic criteria for CRPS and, therefore, did not suffer from such injuries as caused by the 2000 accident; (c) having accepted that the Plaintiff sustained soft tissue injury to the neck and right upper limb, failing to consider the ongoing effects of these injuries (which were sufficient to warrant Assessor Noll's conclusive 7% WPI assessment) and, in doing so, failing to consider the relationship between the effects of those injuries and the Plaintiff's medication consumption; (d) failing to take into account the Plaintiff's continuous pain since at least 2006 in the context of Assessor Noll's conclusive findings of injury and causation; (e) failing to provide any, or any adequate, reasons as to why the Plaintiff's intake of medication was not the result of the soft tissue injuries conclusively found by Assessor Noll to be caused by the 2000 accident; (f) in considering whether the medication intake was caused by the 2000 accident, failing to make any findings or provide any reasons for the Plaintiff's intake of medication which indisputably led to the ileostomy; (g) taking into account, as did Assessor Harvey-Sutton, irrelevant material in the form of the working clinical diagnoses of various treating doctors of CRPS, rather than the conclusive diagnosis of Assessor Noll of ongoing soft tissue injuries sufficient to justify a 7% WPI rating which was causally related to the 2000 accident. 80In response to these submissions, Ms Allars submitted (using the same subparagraphs as referred to in the preceding paragraph): (a) the Review Panel did have regard to this consideration in considering the degree of permanent impairment and the causal relationship - the Review Panel was unable, effectively, to assess the degree of permanent impairment having found that there was no impairment caused by the 2000 accident - with respect to the complaint concerning Assessor Harvey-Sutton's approach asserted at 79 above, Ms Allars submitted that the Assessor did consider the relationship between the medication and the Plaintiff's soft tissue injuries, and had found that the use of medication occurred after the washing line incident of June 2006, with there being no relationship between the consumption of medication and the soft tissue injuries referred to by Assessor Noll; (b) it was submitted that Assessor Noll's certificate was no longer conclusive, having been replaced by force of s.62(2) MAC Act by Assessor Harvey-Sutton's certificate and, in any event, the Review Panel was not bound by either certificate in exercising its functions having regard to s.63(3A) MAC Act; (c) the Review Panel did have regard to the Plaintiff's soft tissue injuries resulting from the 2000 accident but concluded that, based on the history given by the Plaintiff, the pain from that injury had resolved within six to seven weeks of the 2000 accident; (d) the Review Panel did take into account the Plaintiff's continuous pain since 2006; (e) there was no onus on the Review Panel to explain why the Plaintiff's use of medication was not the result of the soft tissue injuries referrable to the 2000 accident - rather, the Review Panel needed to form a view, and reach findings, as to whether or not the intake of medication was caused by the soft tissue injuries arising from the 2000 accident, and it did undertake and conclude that task; (f) the Review Panel did consider this aspect and concluded that the Plaintiff's intake of medication was caused by the separate incident in June 2006; (g) Assessor Harvey-Sutton and the Review Panel did not take into account irrelevant considerations in referring to the CRPS issue - it was entirely appropriate for the Review Panel to look at all of the evidence which was provided to it, as part of the referral process, and to make findings in light of the material placed before it on the review. Decision on Submissions Concerning Relevant/Irrelevant Factors 81It is necessary to keep in mind that relevant jurisdictional error involves the failure to take into account matters which the decision maker is bound to consider, or the taking into account of considerations which the decision maker is prohibited from considering: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 39-40; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [55]. 82A claim for relief upon this basis is not to be approached as a form of merits review where the Court considers the various arguments, and the weight to be attached to them, for the purpose of considering what the outcome should be. All of that is a matter for the primary decision maker. 83I am not persuaded that the Review Panel or (to the extent that it is relevant) Assessor Harvey-Sutton, failed to have regard to any relevant considerations in the administrative law sense. All the material was before the Review Panel. The certificate of Assessor Noll was taken into account, although the Review Panel did question (in passing) how the finding had been made by Assessor Noll. However, I do not consider that this aspect of the Review Panel's reasoning was essential to its conclusion. 84The answer to many of the submissions advanced in support of the claim for relief is that the Review Panel found that the Plaintiff's own history supported a conclusion that the injuries which gave rise to her use of medication, including heavy use of opiate medication, resulted from a fresh event in 2006, which followed a largely symptom-free period of more than five years during which no medication at all had been used by the Plaintiff. This conclusion was open to the Review Panel. 85It has not been demonstrated that the Review Panel failed to have regard to relevant factors, or took into account irrelevant factors. I reject the Plaintiff's claim for relief upon this basis.

Claim for Relief on the Grounds of Denial of Procedural Fairness Submissions of the Parties 86Mr Harrington submitted that the Plaintiff was denied procedural fairness as a result of the Review Panel's statement (at [31] above) that there was inconsistency in the reasons of Assessor Noll. It was submitted that, in making this finding, the Review Panel made a determination of credit adverse to the Plaintiff without affording her the opportunity to be heard on the issue. 87The Plaintiff submitted that, in making this observation, the Review Panel either purported to overturn the certificate of Assessor Noll, when that certificate had not been referred for review, or purported to avoid the conclusiveness of that certificate. 88Ms Allars submitted that the Review Panel had not made a determination of credit adverse to the Plaintiff in making this statement. The Plaintiff's history had been accepted with no adverse reflection on her credit. Rather, the Review Panel had pointed to what was perceived to be an inconsistency between the Plaintiff's account on the one hand, and Assessor Noll's conclusion of 7% WPI on the other hand. 89Ms Allars submitted that the Review Panel was not raising an issue concerning the Plaintiff's credibility without notice to her, so that no issue of denial of procedural fairness is raised. Decision on Procedural Fairness Ground 90It is necessary to fairly read the reasons of the Review Panel in their entirety, without engaging in overzealous scrutiny. 91To my mind, it is not correct to construe the challenged passage as being an adverse reflection upon the credit of the Plaintiff. The observation of the Review Panel is based upon a perceived tension between the Plaintiff's own account, and the finding of Assessor Noll of 7% WPI. There has been no denial of procedural fairness as a result of some unannounced finding adverse to the Plaintiff's credit. 92The balance of the Plaintiff's complaint under this heading concerns what is said to be the Review Panel's implied overturning of Assessor Noll's certificate, even though that certificate had not been referred for review. 93It is the case that the Review Panel was not entitled to overturn Assessor Noll's certificate of 7% WPI. I am not persuaded, however, that that is what the Review Panel did. The Review Panel confirmed Assessor Harvey-Sutton's certificate of 0% WPI arising from the referred question, as to whether there was a causal link between the 2000 accident and the 2010 ileostomy. Assessor Harvey-Sutton resolved this question adversely to the Plaintiff. 94The Review Panel, after undertaking an examination of the material before it, reached a similar view and confirmed the certificate of Assessor Harvey-Sutton. The findings of the Review Panel did not purport to overturn Assessor Noll's certificate. The findings and certificate of Assessor Noll stand. The Review Panel's decision determined adversely to the Plaintiff the question whether the ileostomy was causally linked to the 2000 accident. 95Once again, a recurring theme in the Plaintiff's approach in these proceedings is that Assessor Noll's findings rendered it inevitable that Assessor Harvey-Sutton, and then the Review Panel, would find a causal link between the 2000 accident and the ileostomy. This proposition is not correct in law or fact. 96It was a matter for Assessor Harvey-Sutton and then, on review, the Review Panel to consider the material for the purpose of making an expert medical assessment as required by the MAC Act. It was open to Assessor Harvey-Sutton, and then the Review Panel, to make the findings which they did. Relevantly, for the purpose of these proceedings, the Review Panel made such findings and explained its reasons for the conclusion. 97I am not persuaded that denial of procedural fairness has been demonstrated by the Plaintiff.

Asserted Failure to Give Reasons Submissions of the Parties 98Interwoven with the submissions for the Plaintiff already considered was a submission that the Review Panel had failed to provide reasons as required by law, so that relief should be granted under s.69 Supreme Court Act 1970. The argument was put in different ways, with the essence of the contention being that the Review Panel failed to provide reasons as to why the conclusive findings of Assessor Noll did not lead to a finding of a causal link between the 2000 accident and the 2010 ileostomy. 99Ms Allars submitted that the reasons of the Review Panel were thorough and clear, and that no error had been demonstrated in this respect. Decision Concerning the Reasons Ground 100The Review Panel set out reasons for its findings: s.61(9), s.62(6) MAC Act. The Review Panel, in this case, comprised clinical specialists in the fields of occupational medicine, rehabilitation medicine and general surgery. The task which the Review Panel was undertaking was a practical one, involving application of their expertise in considering the issues which had been referred. 101It is not necessary for medical assessors sitting alone, or as a Review Panel, to furnish a legal treatise on the topic. The Review Panel examined the material and provided reasons for the conclusions which were reached. Those reasons exposed sufficiently, in my view, the basis for the Review Panel's findings, including findings on the causation issue. 102I reject the Plaintiff's claim for relief based upon failure to provide adequate reasons.

Conclusion and Orders 103The question for this Court is not whether it agrees with the decision under challenge. The task for this Court is to determine whether the Plaintiff has demonstrated that lawful decision making has not occurred. 104In addition to the conclusions expressed earlier in this judgment, it is helpful to refer to the analysis of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at 649-650 [135], and to observe that, on the probative evidence before the Review Panel, a logical or rational decision maker could have come to the same conclusion as the Review Panel. It could not be said that the reasons under consideration were unintelligible, or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. 105I am not persuaded that any basis for the relief sought by the Plaintiff has been established. The Plaintiff's claim for relief must fail. 106The usual rule as to costs should apply with costs following the event. There should be no order as to costs with respect to the Second Defendant. 107I make the following orders: (a) Amended Summons dismissed; (b) the Plaintiff is to pay the costs of the First Defendant; (c) no order as to costs of the Second Defendant.

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: 03 May 2013

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (15)