QBE Insurance (Australia) Limited v Edwards

Background

1. The injuries the subject of the impugned assessment occurred on 30 April 2011 at Lithgow. The first defendant was stationary behind stopped traffic on Main Street when a vehicle travelling behind failed to stop, and collided with the rear of his car. Ambulance records describe the second vehicle as a motor cycle, whilst the records of Lithgow and Bathurst Base Hospitals each note the vehicle as a "truck" and the speed of the at fault vehicle as 50 km/hour (Ex. 1A). Other records refer to the offending vehicle as a four-wheel drive and the speed of the vehicle as 70 km/hour. [There are differing versions of the crash recorded in the various documents tendered to this Court. It is not necessary for present purposes to consider them.]
2. The first defendant suffered a number of injuries, and lodged a claim with QBE on 22 June 2011. In his claim Mr Edwards listed the affected areas of his body and injuries as "left knee, pelvis, constantly striking headaches, buttocks, right upper leg, left hip, right hip, L & R shoulders & neck" (Ex. 1A, p.26). He noted the effect of the injuries as "severe excruciating pain, restricted mobility, nausea, bruising" and noted that he required the aid of a walking stick.
3. An accompanying certificate signed by a Lithgow doctor (whose name I am unable to read in Ex. 1A, and whose handwriting makes deciphering the information difficult) described the first defendant's injuries as "multiple soft tissue injuries to neck, back, knee L", and noted "generalised pain/aching of the body parts mentioned above", headache, and pain to the "ant[erior]" right hip and right leg (Ex. 1A, p.31).
4. There was a dispute between QBE and Mr Edwards as to the extent of the injuries he suffered in the crash and whether the degree of permanent injury suffered by him was greater than 10%, thus entitling Mr Edwards to claim damages for non-economic loss.
5. On 29 January 2014 Mr Edwards lodged an application for Assessment of Permanent Impairment Dispute by the Medical Assessment Service ("MAS"). He claimed injuries to his cervical spine, lumbosacral spine, thoracolumbar spine, left and right knees, chest and pelvis, together with severe headaches and post-traumatic stress disorder.
6. A quantity of documentary material was filed with the application, which is before the Court as part of Ex. 1A. In submissions accompanying the application (Ex. 1A, p.97) the first defendant's legal representative noted that Mr Edwards: "[…] sustained very serious injuries to his head, back, neck, right shoulder and arm, left shoulder and arm, left leg, right leg, chest, pelvis, abdomen and nose."
7. It was also submitted that he "sustained a psychiatric injury" (Ex. 1A, p.97).
8. In its Reply to an Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service, QBE provided a number of medical reports, from Professor Magnussen, Dr Healy, Dr Baraz, and Dr Roebuck (Ex. 1B).
9. Two reports from Professor Cameron of 12 October 2014 and 9 November 2014 were also before the assessor.
10. The MAS subsequently (on 20 January 2015) issued a certificate under Part 3.4 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") as to whether the degree of permanent impairment suffered by Mr Edwards in the crash was greater than 10%. The certificate, under the hand of assessor Dr Kamalaharan, certified that the degree of permanent impairment was not greater than 10%. A number of injuries were listed which, together, did not equate to permanent impairment in excess of 10%, as follows: "Neck - soft tissue injury on a background of degenerative changes which has developed into chronic pain. Lower back - soft tissue injury on a background of previous lumbar laminectomy and degenerative changes with no residual radiculopathy which has developed into chronic pain. Thoracolumbar Spine - soft tissue injury on a background of degenerative changes which has developed into chronic pain. Left Lower Extremity - exacerbation of left knee osteoarthritis which resulted in left knee arthroscope with little relief and now increasing pain. Right Lower Extremity - soft tissue injury on a background of degenerative changes which has developed into chronic pain. Right and left Upper Extremity - no complaints. Chest - Soft tissue injury which has developed into chronic pain. Pelvis - Soft tissue injury which has developed into chronic pain." (Ex. 1C, p.114)
11. The assessor examined the first defendant and, amongst other findings, he noted that: "Both knees had a full range of active movements, ranging from 1 to 125 degrees. There was crepitus noted in both the knee joints." (Ex. 1C, p.120)
12. [Crepitus is a grating sound or sensation produced by friction between bone and cartilage or the fractured parts of a bone.]
13. There was, in the assessor's conclusion, no assessable impairment to Mr Edwards' knees.
14. The assessor stated that the first defendant continues to report pain that cannot be accounted for by the identified pathology, at a time (then) 45 months after the crash.
15. The final percentage of whole person impairment was certified to be 5%.
16. Following on the adverse assessment by Dr Kamalaharan the first defendant sought a review, filing an Application for a Review of a Medical Assessment by the Medical Assessment Service (Ex. 1D). Other than the assessment certificate and submissions in support of the application, the first defendant provided a report and correspondence from Dr Ashton. The application for a review was made on the basis that the assessment was incorrect in a material respect: s 63(2) of the MAC Act.
17. The error was identified as a failure to "correctly assess the claimant's left knee injury arising from the accident. He has also failed to assess the claimant's crepitus in both knees which arise as a result of the accident" (Ex. 1D, p.138).
18. The first defendant submitted that the assessor should have assessed there to be 4% whole person impairment relevant to the soft tissue injury to the left knee sustained in the crash, with a further 2% whole person impairment for each knee, reflective of bilateral crepitus. An assessment allowing 8% whole person impairment for the knees, and the 5% allowed by Dr Kamalaharan for the spinal injury, would amount to 13% and permit the first defendant to seek non-economic damages.
19. The report from Dr Ashton related to a left knee arthroscopy that had been performed on Mr Edwards in March 2012. The related correspondence noted that the first defendant had sustained injuries to his back and left knee in the crash, against a background of osteoarthritis affecting both knees [the first defendant having been born in 1937]. At surgery, advanced degenerate changes were noted, together with an "unstable moderately large anterior horn lateral meniscus tear" (Ex. 1D, p.157).
20. In its Reply to an Application for a Review of a Medical Assessment by the Medical Assessment Service (Ex. 1E), QBE submitted that the assessor was correct in determining that the first defendant had sustained exacerbation of already existing left knee osteoarthritis in the crash, without attributing causation of the lateral and medial meniscus tears to the crash.
21. The Proper Officer of the MAS reviewed the competing submissions and other information and concluded that there was reasonable cause to suspect that the medical assessment conducted by Dr Kamalaharan was incorrect in a material respect. This conclusion was based upon the methodology used by the assessor to determine whole person impairment. Dr Kamalaharan assessed impairment on the basis of abnormal range of motion and, there being no abnormal range of motion, assessed impairment at 0%. The Proper Officer referred to another method of assessment of impairment under which a partial medial and lateral meniscectomy as undergone by the first defendant would result in a rating of 4% whole person impairment.
22. The Proper Officer forming a reasonable suspicion that the assessment may have been incorrect in a material respect, the matter was referred to the Review Panel for de novo consideration.

The Proceedings before the Review Panel

1. The Review Panel met by teleconference on 25 June 2015 and, based upon the information available to it, which included the whole of the material that was available to Dr Kamalaharan and to the Proper Officer, considered that the "right knee injury is not causally related to the subject accident" (Ex. 1G, p.174). The Review Panel sought further information from the parties, being the clinical notes of the first defendant's general practitioner from the date of the crash to the date of the request, an October 2014 report from Professor Cameron, and all x-rays, scans and reports relating to the lumbar spine, together with submissions.
2. The first defendant submitted the requested material, together with four pages of submissions and a statement concerning the accident and his injuries that Mr Edwards made for the purpose. The latter documents focused on rebutting any suggestion that the first defendant did not sustain right knee injury in the crash, by seeking to explain the absence of any early reference by him to right knee injury, such as to ambulance and hospital staff.
3. It was submitted by the first defendant to the Review Panel that: "There is more than enough contemporaneous evidence and evidence from the claimant himself in the form of his statement to causally relate the right knee injury to the subject accident. The temporal and causal link between the claimant's right knee injury and the subject accident is therefore established." (Ex. 1H, p.179)
4. The Review Panel was referred to Bugat v Fox [2014] NSWSC 888 and warned not to place too much weight on the absence of contemporaneous complaint by the first defendant of injury to his right knee.
5. The clinical general practitioner ("GP") notes submitted by Mr Edwards ranged in date from 9 April 2010 to 13 June 2013 (Lithgow surgery), and 17 September 2013 to 25 March 2014 (Kelso surgery). The first consultation between the first defendant and his GP following the crash on 30 April 2011 was on 6 May 2011. The nursing entry for that day was "c/o [complaining of] pain 'everywhere'". The medical entry was "presented for review. Ache and pain all over also complaining of headache which is persistent from the time of injury" (Ex. 1H, p.197). Under a heading "Musculo-Skeletal" was an endorsement "Back: neck: hip:.pain".
6. On 8 June 2011 the first defendant's doctor noted "had MVA on 30/04. Since the accident been having pain on the L knee, undergoing physio as a result. […] Now having pain on the R knee going up to R hip" (Ex. 1H, p.196).
7. That is the earliest reference to a complaint of pain by the first defendant in his right knee. Later consultations continued to record the first defendant's complaints of pain in "R knee/R thigh" (14 June 2011), "both knees" (17 June 2011), with occasional apparent improvement, such as on 12 July 2012 when the doctor recorded "Pain R knee/ R thigh is getting better. Still ahving [sic] problem with L knee" (Ex. 1H, p.194-195).
8. In the statement the first defendant made for submission to the Review Panel, he asserted (at Ex. 1H, p.262): "I remember hitting both my knees on the underside of the dashboard and was immediately aware of pain in both my knees and legs as well as in my neck and hips."
9. As to what he may have told medical personnel contemporaneously, the first defendant said: "When I was in hospital I was sore all over. I was out of it a lot of the time too and didn't really know what was going on. I was undergoing investigations and being examined by numerous doctors and medical staff. I do not recall what I told each of the various staff members. I do know that I did complain of pain in my neck, hips and both knees while I was in hospital though. I also recall that the hospital staff appeared more concerned about my neck injury than my other injuries. I recall that I had to keep my neck very still and at one point I recall being told off by a nurse as I had moved my neck because my neck brace was causing me discomfort. Both my knees were injured in the accident. They hit the dashboard. I did not have pain in either knee prior to the accident. I had pain in both my knees following the accident. I am certain that while I was in hospital following the accident I complained of pain in both my knees." (Ex 1H. p.262-3)
10. A report submitted by the first defendant to the Review Panel from Dr Nirodha Wanigasekera of 14 March 2014 referred to his admission to the Bathurst Base Hospital for chronic pain, and noted: "If he did not have any pain before the accident he could have aggravated the present condition due to the whiplash injuries he had during the accident. The degenerative arthritis can lead to neck and back pain and the accident may have contributed to increasing the soft tissue injury and the pain levels. The MRI scan has not shown any evidence of fractures due to the accident. He reported to me that he did not have any knee pain prior to the accident but the x-rays have only shown degenerative type of osteoarthritis and has not shown any evidence of fractures. There could be soft tissue injuries due to the accident which may have contributed to the chronic pain." (Ex. 1H, p.276-277)
11. The plaintiff submitted the requested report from Professor Cameron, together with a further report from the professor dated 9 November 2014.
12. In the report of 12 October 2014 Professor Cameron referred to his attendance on Mr Edwards at his home earlier that month. He recorded a history of injury and other background information, and then noted the details of his examination of the first defendant. The professor noted the restricted range of motion to the first defendant's cervical and lumbosacral spine, shoulders and hips. As to Mr Edwards' knees he observed: "At both knees there was valgus deformity. Range of motion at both knees was 0 to 120 degrees. There was moderate crepitus present." (Ex. 2, p.3)
13. There was no atrophy of the muscles of the lower extremities, and no other abnormalities were seen. X-ray imaging referred to by Professor Cameron showed significant osteoarthritis in both knees. An MRI of the left knee showing a longitudinal tear of the anterior horn of the lateral meniscus was noted.
14. Professor Cameron stated: "Based on the information currently available to me there was no injury to the shoulders, right knee, or hips." (Ex. 2, p.4)
15. He observed that there had been aggravation of osteoarthritis, leading to increased pain in the neck, back and "knees, particularly left knee, as a result of the motor vehicle crash" (Ex. 2, p.4).
16. In his report of 9 November 2014 Professor Cameron confirmed that the injuries suffered by the first defendant that he considered attributable to the crash were: "Cervical spine - soft tissue injury Lumbar spine - soft tissue injury Left knee - soft tissue injury Pelvis - soft tissue injury." (Ex. 2, p.1)
17. His assessment of assessable impairment relevant to the left knee was 0%, with the methodology based upon abnormal range of motion. The crepitus at both knees was attributed by Professor Cameron to pre-existing osteoarthritis.
18. Having reviewed the material submitted to it, the Review Panel issued a certificate pursuant to s 63(4) of the MAC Act as follows: "The Panel revokes the certificate dated 20 January 2012 and issues a new certificate determining that: The following injuries caused by the motor vehicle accident give rise to a whole person impairment which, in total, is GREATER THAN 10%." (Ex. 1I, p.313))
19. The certificate went on to list a number of injuries to the cervical spine, the lumbosacral spine, the chest and pelvis, and including: "Left lower extremity - exacerbation of left knee osteoarthritis which resulted in left knee arthroscope with little relief and now increasing pain. Right lower extremity - soft tissue injury on a background of degenerative changes which has developed into chronic pain. Chest - soft tissue injury which has developed into chronic pain. Pelvis - soft tissue injury which has developed into chronic pain." (Ex.1I, p.314)
20. In its certificate the Review Panel noted that the dispute identified by the parties was "Permanent impairment". As to the matters cited in Reply, that is, QBE's submissions concerning the review application, the Panel noted "The respondent opposed the application" (Ex. 1I, p.316).
21. Under a heading of "Injuries" the Review Panel set out information relevant to the claimed injuries. The disputed right knee injury was dealt with together with the left knee injury as follows: "Left lower extremity and right lower extremity - the Panel found no reference to these injuries in the contemporaneous medical records and had requested submissions from the parties as well as further medical records to assist its decision making. The Panel notes that the mechanism of injury - rear end collision into a stationary vehicle - would not be expected to result in knee injury as the person's body moves back in their seat through inertia, not forward towards the dashboard in a rear impact. However the Panel reviewed the GP's notes of 8 June 2011 which mentioned pain in the left knee since the MVA and 'now having pain in the right knee going up to right hip' followed by X-ray of both knees and the claimant's statement that he hit both knees under the dashboard and had had bilateral knee pain since the accident. The Panel therefore concluded that the left knee injury was causally related to the accident and it accepted the right knee as a consequential injury to the left knee condition, noting the first mention of right knee pain was not until six weeks after the accident. The Panel agreed with the Assessor's redefining these injuries as - left knee - exacerbation of left knee osteoarthritis which resulted in left knee arthroscope with little relief and now increasing pain; and - right knee - soft tissue injury on a background of degenerative changes which has developed into chronic pain." (Ex. 1I p.318)
22. Translating that conclusion into whole person impairment assessment, the Review Panel stated: "Left lower extremity - the Panel noted the claimant had undergone partial medial and lateral meniscectomy which give 4% whole person impairment under the DBE table and that there is a further 2% whole person impairment from crepitus with a history of direct trauma. These two methods of assessment can be combined to give 6% whole person impairment. Right lower extremity - the Panel noted there is 2% whole person impairment from retropatellar crepitus with a history of direct trauma which subsequently became symptomatic consequential to left knee injury." (Ex. 1I, p.319)
23. Under a heading "Panel Decision" the Review Panel listed injuries which it determined were caused by the crash, and which gave rise to permanent impairment: "The Review Panel considered that the following injuries give rise to a permanent impairment: Cervical spine - soft tissue injury and aggravation of degenerative change. Lumbosacral spine - soft tissue injury and aggravation of degenerative change. Left knee - exacerbation of left knee osteoarthritis which resulted in left knee arthroscope with little relief and now increasing pain. Right knee - soft tissue injury on a background of degenerative changes which has developed into chronic pain." (Ex. 1, p.320)
24. The Panel concluded that the whole person impairment for the cervical spine was 5%, that for the left knee 6%, and for the right knee 2%. The total percentage of whole person impairment for assessed injuries caused by a motor accident was certified to be 13%, in excess of the 10% threshold.
25. It is the certificate setting out that conclusion with which the plaintiff takes issue.

The Plaintiff's Contentions as to Error and the First Defendant's Response

1. In seeking to impugn the validity of the certificate issued by the Review Panel the plaintiff complains of four specific errors.
2. The "first error" complained of is that the Review Panel "failed to undertake its own assessment of the first defendant as it was obliged to do under the Act. It simply agreed with the medical assessor below and it made some unexplained changes". Accordingly, it is said that the panel fell into legal error.
3. The "second error" is advanced additional and in the alternative to the first and complains that the Review Panel failed to provide lawful and/or adequate reasons as to: 1. its conclusion that a rear end collision could lead to knee injuries of the type complained of; 2. how the level of impairment to the knees was assessed; and 3. what was meant by "consequential injury in relation to the right knee".
4. The "third error" the plaintiff raises is that the Review Panel failed to explain and lawfully establish causation in relation to the first defendant's right knee injury, and failed to apply clauses 1.7 and 1.9 of the Guidelines for the Assessment of the Degree of Permanent Impairment ("the Guidelines") published 1 October 2007.
5. The "fourth error" is said to be the failure of the Review Panel to take into account the plaintiff's evidence and submissions to it as to the calculation of impairment relating to the left knee.
6. The first defendant denies that the plaintiff is entitled to the relief it claims. Mr Edwards submits that there was no error in the determination of the Review Panel, and the reasons provided by the Panel are adequate, particularly having regard to the non-curial nature of the proceedings before the Panel, and the fact that the Panel is made up of doctors rather than persons with legal training.

Consideration

1. These proceedings are brought by way of judicial review of the decision of the Review Panel in the Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). Relief may be granted by setting aside a decision on the ground of jurisdictional error or error on the face of the record (s 69(3)).

The First Asserted Error

1. The plaintiff asserts that the Review Panel failed to undertake its own assessment of the claimant as it was obliged to do under the Act, but simply agreed with the first assessment, with some changes.
2. The MAC Act provides at s 63(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. This requires the Review Panel to conduct a de novo assessment of all the matters relevant to the medical assessment.
4. The aspect of the medical assessment with which the Review Panel was concerned was the degree of whole person impairment, with impairment to each of the first defendant's knees the subject of particular dispute between the parties.
5. Section 44(1)(c) of the MAC Act provides that SIRA may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident. By cl 1.6(b) of the Motor Accidents Authority Permanent Impairment Guidelines an assessment carried out by a Review Panel is to be in accordance with the Guidelines.
6. Clause 1.20 of the Guidelines provides: "An assessment of the degree of permanent impairment involves three stages: (i) A review of medical and hospital records, including: - all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and - diagnostic findings from all available relevant investigations. (ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and (iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning in which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced." (p.4)
7. To undertake that review the Review Panel (of three medically qualified assessors) referred to the material it noted as available to it, being: "1. The certificate including the reasons issued by Assessor Kamalaharan on 20 January 2015 2. Application form seeking a review and attached documents 3. Reply form and attached documents 4. The determination issued by the Proper Officer on 22 April 2015 referring this matter to a Review Panel 5. All the documents which were provided to Assessor Kamalaharan prior to the assessment under review." (Ex. 1I, p.314)
8. Under a heading of "Matters Considered and Decided by the Panel" the Panel recorded: "A. Evidence Considered The Panel considered all of the available evidence and decided that:- A re-examination of the claimant was not necessary because the examination findings recorded by the Assessor were sufficient to calculate whole person impairment of injuries which the Panel ultimately decided were causally related. The Panel therefore proceeded to consider the issues as follows." (Ex. 1I, p.316)
9. That is, to conduct a new assessment of all the matters with which the medical assessment is concerned, as required by s 63(3A) of the MAC Act, in the manner set out in cl. 1.20 of the Guidelines, the Review Panel determined that it was unnecessary to make its own clinical assessment of the first defendant.
10. Instead, it reviewed the documentation and Dr Kamalaharan's assessment and substantially agreed with the conclusions of the assessor.
11. I do not understand the plaintiff to argue that a Review Panel must always conduct its own clinical assessment of a claimant to adequately discharge its functions under s 63(3A), although cl. 1.20(ii) of the Guidelines appears to suggest that an interview and clinical examination is, at least, the optimal approach: "wherever possible".
12. Here, the Review Panel chose not to interview and clinically examine the first defendant, because "the examination findings recorded by the Assessor were sufficient to calculate whole person impairment of injuries which the Panel ultimately decided were causally related" (Ex. 1I, p.316).
13. The Review Panel went on to substantially agree with the conclusions of the Assessor.
14. Its substantial agreement with the first assessment does not of itself disclose a failure to comply with s 63(3A) of the MAC Act. What is required is that the Review Panel conduct its own "new assessment".
15. Whilst the certificate issued by the Review Panel is not loquacious as to the details of the assessment, there is sufficient to establish that the Panel did conduct its own assessment. The Panel members expressly noted that each had received and "considered" documentation which was listed in the certificate, together with the matters referred to in the Application for Review and the insurer's Reply. It was also expressly noted that the material was "considered afresh" by the Panel (Ex. 1I, p.316).
16. Whilst the plaintiff contends that these assertions are no more than formulaic utterances, consideration of the content of the whole of the certificate does not support that contention.
17. Some extracts from the section of the certificate headed "Panel Deliberations" illustrates the point, demonstrating that the Panel did more than simply use the expected language, but rather genuinely considered the material for itself.
18. As to the injuries to the cervical spine for example, the Review Panel said: "Cervical spine - soft tissue injury and aggravation of degenerative change. The Panel accepted that this injury was caused by the accident based on contemporaneous ambulance and hospital records. The Panel agreed with the Assessor in redefining the injury, noting the other descriptors of the injury as referred were an iteration of radiological findings and not additional injuries." (Ex. 1I, p.317)
19. Whilst the Review Panel agreed with the Assessor in redefining the injury, it is apparent that the Panel considered the relevant evidence, such as that contained in contemporaneous ambulance and hospital records, and concluded that the soft tissue injuries and the exacerbation of degenerative change were caused by the crash.
20. In relation to the disputed knee injuries, the conclusions of the Review Panel are set out at [48] above. It is apparent from that extract that the Review Panel, having called for additional evidence from the parties, considered that additional evidence, together with the material it already had, and determined that both knee injuries were attributable to the crash.
21. I am unable to conclude that the Review Panel in fact failed to determine the assessment for itself de novo as the plaintiff complains. There is sufficient information in the certificate to establish that the Panel considered all of the evidence, including information and evidence it sought out, and made its own determination. That it substantially agreed with the original assessment does not vitiate compliance with s 63(3A) of the MAC Act.

The Second Asserted Error

1. The plaintiff complains that the Review Panel failed to provide adequate or lawful reasons as to its determination in relation to the first defendant's alleged knee injuries (that is, to both the left and right knees). The impugned section of the certificate is set out at [48] above.
2. Section 61(9) of the MAC Act provides: "A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence."
3. Whilst the provision is directed to the status of medical assessments, it is clear that any matter certified by an assessor, which includes a Review Panel conducting an assessment, is to record the reasons for the relevant finding.
4. Clause 16.24 of the Medical Assessment Guidelines provides that the determination and any certificates issued by the Review Panel are to be "accompanied by written reasons for the determination", given within specified timeframes.
5. What is required by way of reasons from a panel of assessors (performing a statutory function under Victorian workers compensation legislation) was considered by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at 501 ([55]): "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
6. That formulation has been accepted as applicable to decisions such as the assessment of a Review Panel conducted pursuant to the MAC Act: Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214 at [2] and [40]; Ali v AAI Limited [2016] NSWCA 110 at [49].
7. Here, the Review Panel noted that it had found no contemporaneous reference to the left and right lower extremity injuries in the material it received through the Proper Officer and, in a context where a rear end collision would not be expected to result in trauma to the knees, it had sought further information and submissions as to those injuries from the parties.
8. The Panel then referred to its consideration of the first defendant's statement, and to the GP notes, including the reference in the notes to a complaint of pain by the first defendant on 8 June 2011 of pain in his left knee dating to the crash and "now pain in the right knee". The certificate continues: "The Panel therefore concluded that the left knee injury was causally related to the accident and it accepted the right knee as a consequential injury to the left knee condition, noting the first mention of right knee pain was not until six weeks after the accident." (Ex 1I, p.318)
9. The plaintiff submits that this is a conclusion rather than reasons for the conclusion. The first defendant submits that it is apparent that the Panel took into account the contemporaneity of the injury and symptomology and, ultimately, causation, and that the reasons are adequate.
10. The question is, does the certificate adequately set out the actual path of reasoning with sufficient detail to allow it to be reviewed?
11. Having considered the certificate, the documentation that was before the Review Panel, and the submissions of the parties, I accept the plaintiff's submission that the reasons do not adequately expose the path of reasoning taken by the Panel with respect to its conclusion that there was impairment to the right knee attributable to the accident, or as to the calculation of the degree of impairment to both knees.
12. The certificate sets out the Panel's acceptance of the account in the first defendant's statement (unsigned and undated in the copy in evidence, Ex. 1H, at p.289) that "Both my knees were injured in the accident. They hit the dashboard." It accepted that account in the absence of any complaint from Mr Edwards of right knee injury or pain prior to 8 June 2011. Why the Panel accepted that evidence, particularly in the context of dispute about injury to the right knee, and where it had itself queried the mechanism of injury, is not set out.
13. Also not set out is what the Panel meant by "consequential injury" to the right knee. How injury to one knee could lead as a consequence to injury to the other is not explained. Trying to understand how that conclusion was reached is apt to lead to speculation, which of itself points to the inadequacy of the reasons to illuminate the path taken to reach that conclusion.
14. In submission to the Court, counsel for Mr Edwards endeavoured to explain the Panel's reasons for concluding that there was "consequential injury" to the right knee in the following way: "[…] when one favours a particular leg whether it is because of the knee or ankle for whatever reason, one is often faced with a situation where there is a consequential injury in relation to the other limb. That is something that, in my respectful submission [is] consistent with common experience." (T22:30‑34 of 4 November 2016)
15. That may be so, but the Panel did not give any such reason, and nor can it be extracted from the documentation and other information considered by the Panel.
16. It also seems contradictory to a degree to accept Mr Edwards' statement, as the Panel did, that he struck both knees on the dashboard of his car in the crash, but then conclude that the right knee injury was consequential to the left knee injury.
17. Whilst counsel for Mr Edwards submitted that what was said to be an "unfortunate expression" referable to the "consequential injury" should not vitiate the certificate, the question of injury to the first defendant's knees was the critical issue in dispute, and it was thus a feature of some significance.
18. The Panel's reasons for the basis of its percentage assessment of impairment to the right knee injury suffer from the same obscurity. The conclusion is noted, that there is a consequential injury to the right knee, but not how that conclusion was reached or the basis of it. The Panel said (Ex. 1I, p.319): "The Panel noted there is 2% whole person impairment from retropatellar crepitus with a history of direct trauma which subsequently became symptomatic consequential to left knee injury."
19. The determination as to causation of impairment to the left knee is by contrast sufficiently explained by reference to direct trauma complained of by Mr Edwards, the clinical findings, and the meniscectomy he had undergone, although the methodology adopted to reach the percentage of whole person impairment is not explained. That is so even though the methodology of calculation of percentage impairment was an issue of significant dispute between the parties, and its resolution thus required some (at least brief) explication.
20. In my conclusion, the Review Panel's reasons for concluding that the right knee injury was attributable to the accident, and that there was 2% whole person impairment, are not adequate or sufficient to allow its path of reasoning in that regard to be discerned. The reasons for the calculation of the percentage of impairment to both knees is also opaque.

The Third Error

1. The plaintiff complains that the Review Panel failed to explain and lawfully establish causation in relation to the first defendant's right knee injury, and failed to apply clauses 1.7 and 1.9 of the Guidelines published on 1 October 2007.
2. The first defendant submits that the Panel's acceptance of and reasons for concluding that the accident caused the right knee injury is to be found in its reference to his statement as to having struck his knees on the dashboard, and the subsequent complaint to his general practitioner of bilateral knee pain in June 2011.
3. The relevant Guidelines to which the plaintiff refers are in the following terms: "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 non‑medical determination". 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." (MAA Permanent Impairment Guidelines, p.2) (Emphasis in original)
4. To some extent, this complaint is addressed by the Court's conclusions as to the second asserted error in relation to the "consequential" nature of the injury to the right knee.
5. The Panel's reasons do not adequately explain how or on what basis it concluded that the right knee injury was caused by the motor vehicle accident, and the factors it referred to - Mr Edwards' statement that both knees had hit the dashboard causing injury, and the Panel's conclusion that the right knee injury was consequential to the left - seem contradictory.
6. The only evidence for direct trauma to the first defendant's right knee comes in his statement made for the purpose of submission to the Review Panel.
7. There is no reference in ambulance or hospital notes contemporaneous to the crash to right knee injury. In the Motor Accident Personal Injury Claim Form submitted by Mr Edwards he did not refer to any injury to his right knee; the left knee was, by contrast, specifically referred to. The first reference to it comes in the complaint to the GP already referred to of 8 June 2011 of there "now" being pain to the right knee.
8. The Panel had information before it which cast doubt on causation of the right knee injury, including the reports of Professor Cameron, and the issue of pre‑existing osteoarthritis was a live one.
9. I am unable to make a positive finding that the Panel applied the Guidelines as it was required to do, because the reasons do not sufficiently illuminate that aspect of the matter. As I have already concluded, the reasons do not adequately explain the reasoning process relevant to causation of the knee injury.

The Fourth Asserted Error

1. The plaintiff complains that the Panel failed to take into account its submissions and evidence as to causation of the right knee injury, and causation of crepitus in both knees. It contends that, in failing to consider this material, which was actively in dispute, the Panel denied it procedural fairness.
2. The first defendant argues that the Panel referred to the relevant material in its reasons, and clearly took it into account.
3. Other than noting that it had access to all of the material that had been before Dr. Kamalaharan, what the Panel said about the plaintiff's submissions, and the reports from Professor Cameron, is as follows: "2. Assessment Under Review […] B. Disputes Identified by the Parties The Panel considered the matters cited in the Application for review and noted that the following aspects of the assessment were disputed: - Permanent Impairment. The Panel considered the matters cited in the Reply to the Application for review and noted that: - The respondent opposed the application." (Ex 1I, p.316) "3. Matters Considered and Decided by the Panel […] A. Evidence Considered The Panel considered all of the available evidence [being the evidence available prior to its request for further information to the parties]." (Ex. 1I, p.316) "3B. Additional Evidence […] The Panel received from Moray and Agnew Lawyers reports of Professor Ian Cameron dated 12 October 2014 and 9 November 2014." (Ex. 1I, p.317) "3C. Permanent Impairment […] Right and left upper extremities - the Panel noted the absence of ongoing complaints and agreed with the Assessor that these injuries had resolved. The Panel considered the documented loss of active range of movement and considered whether an assessable impairment was present under the Nguyen judgement. The Panel noted that Professor Cameron had determined that there is no evidence that the restriction in shoulder movement is related to the neck injury and therefore that the Nguyen judgement did not apply in this case. The Panel noted the history of previous lumbar spinal fusion and the absence of previous symptomatic impairment affecting the other body regions injured in the subject accident and decided that there was no indication for apportionment, noting the present lumbosacral impairment is 0% based on examination findings." (Ex. 11, p.310) "5. Issues Raised by the Parties In relation to the issues raised in the application the Panel agreed that these have all been dealt with in Section 3 above." (Ex. 1I, p.322)
4. Nothing more than those sections extracted above was said by the Panel concerning the plaintiff's arguments, or as to the contents of Professor Cameron's reports, those reports being relied upon by the plaintiff in support of its contention that neither the right knee injury or crepitus in both knees could be attributed to the accident. Given the significance of that material to one of the parties in dispute, and given the significance of the dispute as to the knee injuries to the determination of the matter, more was required.
5. The plaintiff referred the Court to the decision of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, at [24], where Gummow and Callinan JJ said: "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."
6. That principle was referred to in Rodger v de Gelder (2015) 71 MVR 514, at [93] - [94]: "Where a decision‑maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 73 ALD 321; 77 ALJR 1088; [2003] HCA 26. In such a case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; 72 ALD 613; [2003 HCA 6 at [37] per Gleeson CJ. It is well accepted that with respect to the MAC Act, procedural fairness applies to a review panel exercising powers under s 63: McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; 50 MVR 379; [2008] NSWCA 163 at [8] per Allsop P. The particular content of this requirement will depend upon the facts and circumstances of the particular case: Trazivuk at [28]; Frost at [2] and [41]. A failure to accord procedural fairness is a recognised form of jurisdictional error: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; 262 ALR 569; 113 ALD 1; [2010] HCA 1 at [60]. It is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513; [2001][ HCA 34 at [10]."
7. The issue of causation of the first defendant's right knee injury, and the origins of crepitus in both knees, was clearly an area of significant dispute between the plaintiff and the first defendant for the Review Panel to determine in its assessment. Despite that, it did no more than refer to the existence of a dispute, being the question of permanent impairment, and to the receipt of submissions and the reports from Professor Cameron. The matters raised therein concerning knee injury were not referred to, or addressed, at all.
8. In the context of a dispute which substantially focused on causation of injury to Mr Edwards' knees, it was in my view essential for the Panel to deal with the dispute, necessarily by referring to the competing evidence and submissions, and by giving its reasons for coming to the conclusions it did. That could have been done with brevity, and without need to set out in any detail the evidence and arguments, but it did need to be done.
9. To fail to do so was an error amounting to jurisdictional error.

Conclusion

1. Having concluded that the Review Panel fell into jurisdictional error, its decision must be set aside, and the matter remitted for assessment by a Review Panel in accordance with law.

orders

1. The Court makes the following orders: 1. The Review Panel Certificate dated 21 August 2015 issued by the third defendant in MAS Matter Number 2014/02/0351 be set aside. 2. The matter is to be referred to the second defendant for the appointment of a Review Panel newly constituted to undertake an assessment of the first defendant in accordance with law. 3. First defendant to pay the plaintiff's costs.

Amendments 25 November 2016 - Paragraph 65 bullet point formatting. 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: 25 November 2016