By an Amended Summons dated 10 May 2023, QBE Insurance (Australia) Limited ("the insurer") sought orders in the nature of certiorari or alternatively declarations with respect to decisions and/or medical assessments, a Review Panel Certificate and a Replacement Review Panel Certificate of the third defendant, being Mr Alex Bolton, Mr Geoff Stubbs and Mr Mohammed Assem, each in their capacity as a medical assessor of the Personal Injury Commission of NSW ("the Commission"), collectively comprising of a review panel of that body.
The second defendant to that summons is the President of the Commission. The first defendant is Nadine Sedger ("the claimant") who made a claim against the insurer.
The insurer relies on the affidavit of Roni Aloe affirmed and filed on 22 May 2023.
All defendants filed submitting appearances. On that basis, the insurer did not seek an order for costs.
[3]
Background
The claimant (first defendant) was injured in a motor vehicle accident in New South Wales on 22 August 2017.
The insurer is the CTP insurer of the vehicle at fault in the accident.
The claimant made a claim against the insurer pursuant to the Motor Accidents Compensation Act 1999 (NSW) ("the Act").
Section 131 of the Act provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%.
There was a dispute between the claimant and the insurer as to the medical assessment matter set out in s 58(1)(d) of the Act, namely "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%."
Section 132 of the Act provides that damages may not be awarded for non-economic loss until a medical assessor appointed by the Commission has carried out an assessment of the medical assessment matter.
Consequently, the matter was referred to the Commission for assessment of that dispute.
The claimant was initially assessed by Medical Assessor Hyde-Page, on 29 June 2021, on behalf of the Commission. The Assessor certified that the claimant had 5% Whole Person Impairment ("WPI") as a result of the subject accident.
The claimant applied for a review of Assessor Hyde-Page's decision pursuant to s 63 of the Act.
The matter was referred for assessment by a "review panel" (the third defendant) appointed by the Commission.
The review panel assessment was governed by s 63 of the Act which relevantly provides:
(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.
(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.
(6) Section 61 applies to any new certificate or new combined certificate issued under this section.
Section 61(2) provides:
Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by the Commission in respect of the claim concerned.
On 28 October 2022, the review panel issued a certificate and reasons ("the review panel decision" or "the first review panel decision") certifying:
The Panel revokes the certificate of Medical Assessor Hyde-Page dated 16 July 2021.
The Panel determines that the following injuries were caused by the motor accident:
• lumbar spine injury with fractures of the transverse processes from L1 to L4;
• injury to the right foot with fractures of the distal metatarsals;
• soft tissue injury to the left ankle;
• scarring to the left leg, and
• fractured sixth and seventh ribs, healed.
The injuries caused by the motor accident have a total whole person impairment of 12%.
[4]
Relief Sought
The insurer sought review of the whole review panel decision and the replacement review panel decision, and also sought the relief earlier referred to in this judgment.
The insurer accepted that, if the Court found that the first review panel decision had no statutory effect because it had been wholly replaced by the replacement review panel decision, the first prayer for relief seeking to quash the first review panel decision would be unnecessary, but the alternative relief of a declaration, declaring the first review panel decision invalid, would be nonetheless applicable.
I have formed the view that the first review panel decision has no statutory effect because it was replaced by the replacement review panel decision: see Vitaz v Westform (NSW) Pty Ltd [2011] NSWCA 254 at [53] - [54] (per Basten JA). I will only grant the alternative form of relief of a declaration with respect to the first review panel decision. For reasons I will now give, I grant orders in the nature of certiorari with respect to the replacement review panel decision and certificate.
[5]
Guiding Principles
It is strictly unnecessary to consider the errors of law raised by the insurer in this case because I consider that there is jurisdictional error affecting both decisions of the review panel. The insurer was correct to plea that the errors to which I will turn constitute, in that aspect, a constructive failure to exercise jurisdiction.
The Court of Appeal in Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 (at [95], per Gleeson, Macfarlan and Leeming JJA agreeing) held:
Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Yusuf at [41] per Gaudron J.
In my view, the errors demonstrated by the insurer warrant the quashing, as I have mentioned, of the replacement review panel decision and certificate and that a redetermination occur by another review panel, thereby warranting the third prayer for relief in the Amended Summons in the nature of mandamus.
[6]
Ground 1
The review panel was required to conduct the assessment as set out in s 133 of the Act, which included conducting the assessment in accordance with the Motor Accident Permanent Impairment Guidelines ("the Guidelines") and the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition ("AMA4").
The Court of Appeal has held that a failure to comply with the guidelines may constitute a constructive failure to perform a statutory duty (Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22at [44]). This is primarily because s 133(2) of the Act provides in mandatory terms that the assessment "is to be made in accordance with" the Guidelines.
In Insurance Australia Group Ltd (t/as NRMA Insurance) v Saraceni (2020) 93 MVR 433; [2020] NSWSC 1045 at [105] the Court as presently constituted stated:
I have earlier extracted passages from the judgment of Basten JA in Boyce. His Honour was dealing with the former Guidelines and, in particular, the distinction in those Guidelines between emboldened and unbolded text. Nonetheless, even with the unbolded text, his Honour found (at [18]) that it would be inconsistent with the combination of s 133(2) and the mandatory terms included in some unbolded texts are expressed to "suggest that the assessor can ignore what is, in effect, the bulk of the Guidelines [being a reference to unbolded type]". His Honour illustrated why the former unbolded cl 1.24 was "mandatory" in its terms (see Project Blue Sky at [38] and [93], as to the concept of a mandatory term,). That conclusion may be reached with even greater force in the case of cl 1.41 having regard to the use of the word "must". Further, having regard to the submissions of the plaintiff that I have earlier recorded and accept with respect to the former Guidelines (see [49]-[51]).
In the review panel's reasons, the only injuries for which the WPI assessments were expressly made were the injuries to the foot and the ankle. It was only the assessment of the ankle that is relevant to this ground of review.
The review panel failed to state which ankle was the subject of the assessment. It is only by reference to the replacement review panel decision that it becomes apparent that the panel was assessing the right ankle.
After considering various potential ways of conducting the assessments to the lower limbs, the panel stated that range of motion is the most beneficial methodology for assessing impairment, which appears to be a reference to cl 1.70 of the Guidelines.
[7]
Ground 1
At paragraph [58] of the replacement review panel decision, the review panel stated:
The right foot shows greater than 10° of ankle dorsi flexion measured along the lateral border of the foot.
(Emphasis added.)
However, as earlier mentioned, at paragraph [71], the review panel then stated:
Assessment can be considered based on range of motion. Right ankle dorsiflexion was restricted to a neutral position (0°). Table 42 provides a 3% whole person impairment based on mild restriction of dorsiflexion (10°- 0°).
(Emphasis added.)
The reasons given at paragraphs [58] and [71] as to the range of right ankle dorsiflexion are inconsistent and irreconcilable.
The degree of WPI in the right ankle is material to the decision, as it accounts for 3% of the overall WPI and makes the difference between exceeding or not exceeding the threshold set out in s 131 of the Act.
The errors so described also represent a failure to comply with the relevant guidelines and also represent legal unreasonableness.
In my view, the errors represent a constructive failure by the medical assessor to exercise its jurisdiction.
Further considerations might be added in that respect. In addition to the decision of the review panel being internally inconsistent with respect to the right ankle impairment, the review panel also failed to expose its actual path of reasoning with respect to the examination and assessment of the right ankle impairment.
In IAG Ltd (t/as NRMA Insurance) v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346 it was held by Fagan J (at [29]) that an unexplained leap in the reasoning process, and internally inconsistent reasoning, resulted in the decision lacking "evident and intelligible justification" and, therefore, the decision should be set aside for legal unreasonableness.
The review panel's failure to provide reasons that were internally consistent and expose its actual path of reasoning constitutes respectively a constructive failure to exercise jurisdiction and a failure to expose a path of reasoning, constituting an error of law on the face of the record.
[8]
Conclusion
The review panels have constructively failed to exercise jurisdiction, as demonstrated by the disposition of the grounds of judicial review in this judgment, as well as committed errors of law on the face of the record (and are accordingly invalid).
In the case of replacement review panel decision and Certificate, orders should be made in the nature of certiorari, quashing the decision and/or the medical assessment and the Review Panel Certificate.
In the case of the first review panel decision, a declaration should be made that the decision is invalid and has no statutory force.
The insurer has sought an order that the matter be remitted to the Commission for re-allocation to a differently constituted review panel.
The Full Court of the Federal Court of Australia determined in Northern NSW FM Pty Ltd v The Australian Broadcasting Tribunal (1990) 26 FCR 39; [1990] FCA 642 at 43 (per Davies and FosterJJ) that:
[W]hen decisions in judicial and administrative proceedings are set aside in toto and the matter remitted to be heard and decided again, justice is in general better seen to be done if the court or the Tribunal is reconstituted for the purposes of the rehearing.
(Emphasis added.)
This Court has often made orders that decisions of review panels under the Act (and the succeeding legislation) ought to be remitted to differently constituted review panels when the decision has been quashed. Some examples of cases where orders of this nature were made include: Partridge v IAG Ltd (t/as NRMA Insurance) (2019) 89 MVR 36; [2019] NSWSC 127; Robson v QBE Insurance (Australia) Ltd (2020) 94 MVR 341; [2020] NSWSC 1558; Insurance Commission of Western Australia v Gargoura (2020) 94 MVR 488; [2020] NSWSC 1786; Raina v CIC Allianz Insurance Ltd (2021) 95 MVR 73; [2021] NSWSC 13; and Norrington v QBE Insurance (Australia) Ltd (2021) 96 MVR 170; [2021] NSWSC 548.
The insurer made the following submissions as to why it did not hold confidence in the former review panel with regard to any redetermination of the matter:
1. The nature of and number of the legal errors both in the first review panel decision and the replacement review panel decision.
2. The failure of the review panel to issue a legally valid replacement decision, even when given the opportunity to do so under s 61(11).
3. The inconsistent findings on examination reported in the replacement review panel decision and the inability to know which of the two findings (if either) are correct.
4. The available inference that the reason for the internal inconsistencies in the replacement review panel decision was that the review panel was trying to support its previous conclusion by retro-fitting reasons, rather than ensuring that the assessment was fully reconsidered having regard to its actual findings on examination. This gives rise to a possible apprehension of bias. In Kaldas v Barbour (No 2) [2016] NSWSC 1886, Garling J referred to the test of apprehended bias as follows, at [14]:
"… if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 and other cases".
1. The new statement by the review panel at [71] of the replacement review panel decision that right ankle dorsiflexion was 0º (in contrast to its own recorded findings on examination at [58], and in the first review panel decision) is a wholly unsupported and unexplained addition to the replacement review panel decision and suggests that the review panel was intent on confirming its existing flawed assessment.
[9]
Directions
The insurer should bring in Short Minutes of Order reflecting this decision by 4.00pm on Tuesday 25 July 2023.
[10]
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: 24 July 2023
On 18 January 2023, the claimant filed submissions in the Commission, seeking a referral for a further medical assessment, on the basis primarily that:
17. There is evidence of a material error and lacuna in the reasoning of the Review Panel as to how they arrived at a 12% WPI and there is no assessment of the lumbar spine. The usual table at the end of their reasons, where one would expect them to set out their WPI calculations is missing.
18. These errors gives rise to a substantial injustice to both parties by failing to explain to them how the Panel reached the conclusion it did.
In the meantime, in order to comply with r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), the insurer commenced proceedings by way of Summons filed 25 January 2023.
On 29 January 2023, Commission Member Cowley issued an Interim Determination in which he noted at [3], "both parties believe that there is an obvious error in the Panel's Reasons and Certificate and now seek for that Certificate to be reviewed."
Member Cowley noted at [5] that the parties informed him that "a joint application by way of emails was made to the Commission on 31 October 2022 but the Commission declined to intervene on the basis that there was no obvious error."
The Member noted at [6] that the insurer had indicated that it would be seeking judicial review of the review panel decision.
The Member noted at [9] that both parties requested that the matter be referred for further assessment. The power to refer a matter for further assessment is found in s 62(1)(b) (not s 66, as the Member has mistakenly indicated).
The Member then said:
25. Conspicuous by its absence is any discussion as to how the Panel has determined whole person impairment of 12%.
26. When the Panel discusses the Assessment of injuries to the Claimant's left and right ankle in paragraph 54-72 the Panel states at paragraph 67 there are several choices of methodology for assessment of fractured metatarsals.
27. It could be based on gait pursuant to table 36 which would give 7% WPI.
28. It could be based on weakness which pursuant to table 39 gives rise to 3% WPI.
29. It could be assessed on the basis of range of motion which would give rise to 4% WPI.
30. At paragraph 74 they state that range of motion is the most beneficial methodology for Ms Sedger which would therefore suggest the Panel has awarded 4% whole person impairment for injuries to the right foot.
31. The Panel is then silent on how they determined 12% WPI on the combined tables.
32. Reference to the combined tables could only suggest that 8% was assigned to the lumbar injury, soft tissue injury to the left ankle, scarring to the left leg and fractured 6th and 7th ribs, healed. See paragraph 77 of the Panel's determination.
33. The parties submit and I concur that therefore there appears to be a material error and lacuna in the reasoning of the Review Panel as to how they arrived at 12% WPI. There is no assessment of the lumbar spine. The usual table at the end of their reasons where one would expect them to be set out is missing.
The Member recommended that the matter be referred again for review of the medical certificate of the Panel.
The Member's recommendation was based on a misconception of the nature of the power in s 62. He later realised this and indicated that the correct approach was for the parties to seek a referral back to the review panel under r 112 of the Personal Injury Commission Rules 2021 (NSW)
Rule 112 provides, at (1):
(1) The Commission may refer a matter back to a medical assessor or panel if the assessor or panel provides an incomplete certificate to allow the assessor or panel to correct the certificate.
Section 61(11) of the Act provides:
(11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error.
The matter was therefore sent back to the review panel to issue a replacement certificate to correct the obvious error.
On 9 March 2023, the review panel issued a further decision entitled "Replacement Certificate of Determination".
The only apparent differences between the first review panel decision and the replacement review panel decision are:
1. The date on the first page;
2. The word "replacement" on the first page;
3. Replacement of paragraphs from [71] onwards. Notwithstanding the maintenance of an earlier conclusion at [58] that "the right foot shows greater than 10º of ankle dorsiflexion measured along the lateral border of the foot", at new paragraph [71], the review panel concluded, that the "[r]ight ankle dorsiflexion was restricted to a neutral position (0º)." Table 42 provides a 3% WPI based on mild restriction of dorsiflexion (10º-0º). In paragraphs [76]-[77] the review panel addressed the question of the lumber spine injury which had been omitted in the first review panel decision. In summary the review panel found by reference to WPI as follows: limitation in MPT extension (2%); limitation in lesser toes (2%); limitation in right ankle dorsiflexion (3%) (in combination 7% WPI); and lumbar Spine DRE II (5%). The result was that the combined WPI was 12%. The finding as to the limitation in the right ankle dorsiflexion of 3% was significant because, if that assessment was wrong, the overall WPI was less than 10%.
It may be observed that the conclusion reached by the replacement review panel in the replacement review panel decision (on p 12 of that decision) and in the Replacement Review Panel Certificate, is the same as the conclusion set out in the review panel decision.
On 10 May 2023, the insurer filed the Amended Summons so as to include the replacement review panel decision in the proceedings.
The review panel purported to assess ankle impairment in accordance with Table 42. This was the correct Table to use, but the review panel erred in its application.
With respect to the range of motion method of assessment of the ankle, the panel stated, on p 10, at [71]:
Assessment can be considered based on range of motion. Table 42 provides a 3% whole person impairment based on mild restriction of ankle dorsiflexion (11-20°).
Table 42 of the AMA4 provides as follows:
"Dorsiflexion" and "extension" are interchangeable terms for the same plane of motion.
At [58] - [59], the review panel stated:
58. The right foot shows greater than 10° of ankle dorsiflexion measured along the lateral border of the foot.
59. The left foot also shows a restricted dorsiflexion. Plantar flexion for both ankles is 40° in both feet measured along the lateral border of the foot.
The range of motion for plantar flexion is expressly stated to be 40° for both ankles, which is greater than the range of motion for any WPI to be assessed in accordance with Table 42. Accordingly, the only basis upon which WPI could potentially be assessed is for restriction of extension/dorsiflexion.
In relation to dorsiflexion, the actual range of motion for left ankle dorsiflexion is not stated. However, it seems that this is not material to the outcome, as the panel assessed impairment in the right ankle, not the left.
With respect to the assessment of the right ankle, the review panel erred in the following respects:
1. The panel stated at [71] that Table 42 provides that 11-20°of dorsiflexion gives 3% WPI.
2. In fact, it is 11-20°of plantar flexion that gives 3% WPI.
3. It is necessary to have less than 10°of dorsiflexion to have 3% WPI using Table 42.
4. Furthermore, 40°of plantar flexion does not give rise to any WPI.
Accordingly, the panel's findings on examination of greater than 10% of dorsiflexion in the right ankle would give rise to no WPI.
The assessment of 3% WPI for the ankle (if indeed paragraph [71] is intended to constitute an actual assessment) is, therefore, incorrect and results from a misunderstanding and misapplication of the relevant guidelines.
In failing to apply Table 42 according to its terms and failing to conduct the assessment as required by s 133 of the Act, the review panel has constructively failed to exercise its statutory power and committed jurisdictional error.
Ground 2
As I have predicated this decision upon jurisdictional error it is strictly unnecessary to consider the further reasons ground advanced by the insurer. However, given that the submissions were made in that respect were sound I shall briefly turn to them.
Section 61(9) of the Act relevantly provides:
(9) 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.
In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot"), the High Court emphasised the need for a written statement of reasons given by a Medical Panel, under the Accident Compensation Act 1985 (Vic), to explain "the actual path of reasoning in sufficient detail to enable the court to see whether the opinion does or does not involve error of law" (at [55]).
Wingfoot was applied to the NSW CTP medical assessment scheme in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39.
The review panel erred in failing to give sufficient and lawful reasons for its decision in that it failed to expose its actual path of reasoning.
In this regard, the insurer referred to the comments made by Member Cowley set out above at [24], which identified a number of serious defects in the reasoning of the review panel (such that it was referred back for correction of an obvious error).
In particular, the review panel failed to provide sufficient reasons in the following respects:
1. The review panel failed to record its specific findings on examination as to the degree of dorsiflexion in the ankles (particularly the right ankle, which was material to the assessment). This was a critical integer of the assessment of range of motion impairment assessment in the ankles, and the plane of motion apparently used by the review panel to assess WPI in that region.
2. The review panel failed to provide reasons for its ultimate conclusion that the claimant's WPI totalled 12%.
I agree with the submissions of the insurer that there was an error of law on the face of the record.
It is unnecessary to make any observations about apprehended bias, but otherwise the submissions made by the insurer in this respect are of real substance. The appearance of the review panel replacement decision has the earmarks of a panel intent on confirming its existing flawed assessment, with little or no attempt to justify that position. That comes at great expense to the insurer who was required to bring these proceedings in order to rectify obvious errors. An order in the nature of mandamus, as sort by the insurer, should, in all the circumstances, be made.