Rahman v Insurance Australia Ltd t/as NRMA Insurance

Supreme Court of NSW|2022-08-02|Before: Basten AJ

] HCA 43 Category: Principal judgment Parties: Hafizur Rahman (Plaintiff) Insurance Australia Ltd t/as NRMA Insurance (First Defendant) Wayne Mason (medical assessor, Personal Injury Commission of New South Wales) (Second Defendant) President, Personal Injury Commission of New South Wales (Third Defendant) Representation: Counsel: JJ Ryan (Plaintiff) C Allan (First Defendant)

JUDGMENT

BASTEN AJ: The plaintiff, Hafizur Rahman, made a claim for damages for injuries arising out of a motor accident which occurred on 27 April 2016. A "medical dispute", as defined in s 57 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"), arose as to "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%". [1] The third-party insurer of the other vehicle involved in the accident (the first defendant) sought a referral for medical assessment under Pt 3.4 of the Act. The injuries were identified as "psychiatric condition - psychiatric injuries".
On 26 July 2021, an assessor, Dr Wayne Mason, concluded that none of the injuries referred to him for assessment were related to the motor accident. [2] It followed that there was no basis on which to assess a degree of permanent impairment. The consequence for the plaintiff was that no damages could be awarded for non-economic loss, the threshold of 10% permanent impairment specified in s 131 of the Act not being exceeded. The certificate of the assessor, if not set aside on review, was conclusive in that respect: the Act, s 61(2). The effect of the certificate was thus to diminish what might otherwise have been the plaintiff's legal entitlement to damages with respect to injuries suffered in the accident.
By an application for review lodged on 17 August 2021, the plaintiff sought referral of the medical assessment to a review panel, pursuant to s 63 of the Act. That application was considered by a delegate of the President of the Personal Injury Commission. On 7 October 2021, the delegate determined that she was "not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect", being the exercise of the gateway function created by s 63(2B) of the Act. [3] Accordingly, no review panel was established and the certificate of the assessor remained effective.
By a summons filed on 17 December 2021, the plaintiff commenced proceedings in this Court seeking judicial review of both the medical assessor's certificate and the decision of the delegate of the President refusing a review. On 11 February 2022, an amended summons was filed, but apart from correcting the third defendant from the Personal Injury Commission to the President thereof, the changes were cosmetic.

Issues on review

To the extent that the plaintiff challenged the decision of the medical assessor, the summons was some three months out of time. Although the extension was not opposed, for the reasons explained by Leeming JA in Insurance Australia Group Ltd t/as NRMA Insurance v Keen, [4] albeit dealing with a review sought by an insurer, it will usually be necessary for the applicant for review to give some sufficient explanation for the delay. This issue will be addressed below.
The amended summons divided the challenges into three grounds. Ground 1 was directed to the medical assessment and identified an error of law on the face of the record, that is, in the reasons of the medical assessor. The error was identified by reference to a finding of fact, expressed as follows by the assessor: [5] "On the face of it, Mr Rahman is extremely psychiatrically ill, but there is no evidence that his current psychiatric condition was caused by the subject motor accident."
The plaintiff submitted that whilst this was undeniably a finding of fact, the statement that there was "no evidence" of a connection between the plaintiff's condition and the motor accident, was "not open" to him. There was, therefore, an error of law. This was described as the primary ground on which relief was sought.
Ground 2 had three parts. Ground 2.1 alleged a failure to take into account "relevant evidence". This was particularised in three ways, of which two were pressed on the hearing of the application. The first was that, having acknowledged the possibility that the plaintiff's "depressive symptoms arose as a consequence of impairments due to his physical injuries", the assessor then failed to address the evidence which supported that possibility. The second particular arose from the failure of the assessor to refer to a report of a general practitioner, Dr Hussain, of 18 October 2020, which expressed a number of opinions as to the plaintiff's psychiatric illness and mentioned possible cultural and language issues which may have affected his ability to express those symptoms.
Ground 2.2 alleged that the assessor had taken into account "irrelevant considerations", the specific consideration being identified in the following terms: [6] "Mr Rahman was unable to explain why he did not provide a contemporaneous account of psychological symptoms to his general practitioner in the 3 weeks immediately following the accident and prior to consulting his solicitor."
For the purpose of establishing jurisdictional error, an irrelevant consideration is one which, by law, the decision-maker is precluded from taking into account. The irrelevant consideration relied upon was the reference to a consultation with the plaintiff's solicitor. The ground also asserted a failure on the part of the assessor to explain why the absence of an early report of psychological symptoms was relevant.
Ground 2.3 asserted a denial of procedural fairness. In substance, it relied upon the "no evidence" conclusion set out in ground 1, being a conclusion arrived at prior to conducting a clinical examination of the plaintiff. The statement was said to demonstrate a "closed mind" and prejudgment of the outcome of the clinical examination.
Ground 3 alleged that the President's delegate who refused the application for referral of the matter to a review panel took into account irrelevant considerations in dismissing the complaint, namely error in failing to accept there was reasonable cause to suspect that the "no evidence" statement was not open to the assessor and that it revealed prejudgment of the plaintiff's claim.
Ground 3 was not pressed, so that, as the case was run, there was no challenge to the decision of the delegate declining to refer the application to a review panel. There is an evident incongruity in accepting that the delegate did not err in finding there was no reason to suspect that the errors relied on before her had occurred, and yet invite this Court to be satisfied that the same errors have actually been established. It will be necessary to return to this issue.
As often happens, and as counsel for the plaintiff frankly acknowledged, the material annexed to the various affidavits was mostly irrelevant. The parties agreed that the appropriate course was to admit the medical assessment certificate, the decision of the delegate, and otherwise only those of the more than 500 pages in the court book which were referred to in the course of submissions. To give effect to that arrangement, a schedule of exhibits has been attached to this judgment. Other than the relevant paragraphs in the affidavits relating to the exhibits identified in the schedule, and those exhibits, the evidential material tendered at the hearing is rejected.

Relevant legal principles

The first ground of review was described in submissions as a "no evidence" ground. However, as counsel accepted, that characterisation was not entirely accurate. In administrative decision-making, a legal error may arise where a finding of fact has been made in circumstances where there is no material upon which the decision-maker was entitled to rely which is capable of supporting the finding. [7] In other words, it depends upon a distinction between the capacity of evidence or other material to support a finding (a question of law) and a conclusion as to the sufficiency of the evidence or other material to warrant the finding (a question of fact). A party bearing the onus of proof cannot rely on a no evidence ground by saying that there was no evidence upon which to reject a critical fact. That would either entail a reversal of the onus of proof or an assumption that the plaintiff's evidence has been accepted, or both. Neither course is permissible. [8] However, for reasons which will be explained below, the plaintiff's ground was not that there was no evidence of a particular fact, but rather that the assessor erred in declaring that there was.
Secondly, there is apt to be a misapprehension as to the scope of a ground of judicial review based upon a failure to take account of a relevant consideration. The term "relevant consideration" is a label referring to a particular matter which by law, usually by statute, a decision-maker is required to have regard to, as a condition of the validity of the decision. It is not correct to reformulate the ground as an obligation to have regard to "relevant evidence", in the sense of evidence which appears to be material to a particular fact in issue. [9]
There is seen to be a close relationship between the failure to take into account a relevant consideration and the ground of failure to address "a substantial, clearly articulated argument relying upon established facts", to use the language of Gummow and Callinan J in Dranichnikov v Minister for Immigration and Multicultural Affairs. [10] A critical element of that expression is the need to have established facts, that is, facts which are either conceded or which have been found by the tribunal. If that element is omitted, the expression is apt to encroach upon the exclusive jurisdiction of the administrative decision-maker to assess and make findings of fact.
One way of expressing this ground is to identify in the statutory or other source of power of the decision-maker an obligation to consider and determine an application by a claimant for some benefit or entitlement. Thus, for example, the tribunal in Dranichnikov had, on one understanding of its reasons, simply failed to address the substantial argument put forward by the claimant. In the present context, such a ground might arise were there an application for referral to a review panel and the President's delegate had simply failed to address a substantial basis of the application. The error of law in such cases arises because it is an express or implied requirement of the law conferring the function on the decision-maker that it be exercised by considering the matters presented for determination. In that sense, the substance of the application is a mandatory consideration. By similar reasoning, the application to a court or tribunal will usually constitute part of the "record" for the purpose of considering whether there is an error of law on the face of the record supporting an order in the nature of certiorari. Finally, the succinct statement in Dranichnikov, referring to a clearly articulated and substantial matter, concedes to the decision-maker the function of assessing and making sense of verbose, confused or complex matters.
In the present case, the subject matter of consideration by the medical assessor was whether the plaintiff had suffered a psychological injury as a result of the identified motor vehicle accident. The medical assessor was required to have regard to material put before him, but only in so far as it assisted him to form his own expert opinion as to the relevant issue. As explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [11] the function of the review panel "is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise". The same analysis applies to the medical assessor's function.
It will thus be a rare case in which a medical assessor will err in law in failing to address some specific formulation of the medical question adopted by a claimant or in an earlier medical opinion. [12]
Thirdly, there is a common misunderstanding as to the scope of the ground identified as "taking into account an irrelevant consideration". By parity of reasoning with respect to a relevant consideration, an "irrelevant consideration" is one which the decision-maker is prohibited from considering. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J stated: [13] "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard …."
There is a close association between this ground and the improper purpose ground, although the latter was not raised in the present case.

The no evidence statement - Grounds 1 and 2.3

There was a sense in which ground 1 was, on inspection, internally inconsistent. As the written submissions noted: [14] "The difficulty with his conclusion is that prior to reaching it the medical assessor set out the evidence which linked the psychiatric injury to the accident before then stating that there is no such evidence."
The factual statement as to prior consideration was undoubtedly correct. In the preceding pages the assessor had set out a "history of symptoms and treatment following the motor accident", followed by a "summary of relevant documentation", including reference to the reports of medical practitioners who had identified some form of psychological injury in the years after the accident. The obvious question must be, what did the assessor mean by the statement to which exception is taken? The answer is tolerably clear from a consideration of (i) the precise language used by the assessor and (ii) the issues set out in the preceding two pages of his reasons.
As to (i), what was missing was not evidence of psychiatric conditions, but evidence that "his current psychiatric condition was caused by the subject motor accident". [15] It will be convenient to return to this point after considering the context.
As to (ii), under the heading "Conclusion on the papers" the assessor stated: [16] "With regard to psychiatric injury I have not been able to ascertain a clear history of the development of his psychiatric symptoms."
The assessor then set out the basis of his difficulty, which, without repeating the whole of the detailed analysis, included the following passages: "I note the claimant attended his general practitioner quite regularly for three weeks following the motor accident; during this time only pain and 'amnesia' were noted. Specifically he did not report anxiety or fear of death in the motor accident and there was no mention of intrusion or hyperarousal symptoms. Suddenly, and without clinical explanation, a diagnosis of post-traumatic stress disorder appeared in the GP record following a case conference on [19] May 2016. In my opinion the claimant did not satisfy criterion A of DSM-5 PTSD. The symptoms appeared to prevent the claimant from driving. I also note it is not possible using DSM-5 criteria to make a diagnosis of post-traumatic stress disorder within the initial three months of an event. … Most worrying is the evidence provided by the insurer that the claimant was working both as a taxi driver and later as an Uber driver after the subject motor accident in 2016 and 2017. During this time he was attending exposure therapy with two different psychologists yet reporting to them he was unable to cooperate with exposure therapy which involved a driving a car… Video surveillance in both 2016 and 2019 revealed a well-dressed and [well- ] presented man who was able to perform many functions his purported cognitive injuries would suggest he could not manage. He was noted to return home after driving his taxi. He was able to concentrate and focus on the task of thoroughly cleaning a Toyota Kluger vehicle for over one hour. He was noted to converse amicably with another man. He was noted to accompany his wife and children to shopping centres. The images presented were in extreme contrast to his presentation in clinical interviews and his claimed disabilities. Again, the reliability of his purported symptoms is brought into question."
The assessor noted there had been "multiple behavioural disturbances", but they occurred two and a half years after the motor accident and there was "no clear mechanism related to the motor accident for the development of this particular set of symptoms".
The assessor then, in the passage immediately preceding the impugned statement, explained: "My main concern is that I do not believe a causal link between the subject motor accident and his claimed psychiatric injuries has been established. It appears psychiatric examiners have been presented with a symptom picture which has been assumed to arise from the subject motor accident. … The fact that the claimant was able to continue driving after the motor accident indicates the absence of an accident related PTSD or anxiety disorder. The fact that he has been able to function as a taxi and Uber driver and to complete the complex task of fully cleaning a motor vehicle indicates no cognitive impairment. On the face of it Mr Rahman is extremely psychiatrically ill, but there is no evidence that his current psychiatric condition was caused by the subject motor accident. Essentially, the inconsistencies in the claimant's presentation over the years make it impossible for me to arrive at a psychiatric diagnosis without clinical re-examination in which the claimant is afforded the opportunity to respond to the inconsistencies." [Emphasis added.]
Thus, read in context, the italicised sentence indicated that the lack of evidence related to the causal relationship between his current psychiatric condition and the motor accident. The assessor identified, summarised and evaluated such evidence of psychiatric conditions as was presented to him, but found an absence of evidence of a causal link. On the contrary, there was affirmative evidence which was inconsistent with such a causal connection. To say that the finding in its terms was "not open" was to disagree with the evaluation undertaken by the assessor as to what the other psychiatric opinions reflected. That exercise is not available by way of judicial review because it does not demonstrate anything approaching an error of law. If it matters, which it arguably does not (manifest unreasonableness not having been raised), read as a whole, the passage in question is persuasive in favour of the impugned conclusion reached by the assessor.
Ground 1 must be rejected.
Ground 2.3 is of a different order. Nevertheless, it is not easy to formulate with precision. It is helpful to set out the ground in full: "Ground 2.3 - denying the plaintiff procedural fairness in arriving at a conclusion adverse to him prior to conducting an examination of him and prior to interviewing his wife. 20 The medical assessor concluded at p 18 there is no evidence that the plaintiff's current psychiatric condition was caused by the accident. This conclusion was arrived at prior to the medical assessor conducting a clinical examination of the plaintiff and interviewing his wife. Having formed this conclusion, the medical assessor had closed his mind to the plaintiff's case and his only purpose in interviewing the plaintiff was to allow him the 'opportunity to respond to the inconsistencies' earlier identified by the medical examiner."
The arguments presented in support of this ground involved the following steps: 1. The "no evidence" statement was an unqualified rejection of the plaintiff's claim: it was not a tentative or preliminary conclusion. 2. The next sentence, claiming that a psychiatric diagnosis was not possible without clinical re-examination, indicated a view that a further step was necessary, but the outcome had already been determined, which amounted to an exercise in prejudgment. 3. The purported offer of procedural fairness by presenting the "inconsistencies" to the plaintiff was in fact an exercise in unfairness designed to achieve confirmation of the conclusions already reached.
The formulation of the ground suggested that the form of procedural unfairness relied on was a reasonable apprehension of bias, in the sense of prejudgment. It appears to have been on that basis that the insurer drew attention to an email of 14 July 2021 from an officer of the Personal Injury Commission to the parties. The officer noted that the matter had been referred to the assessor for a "paper-based assessment as requested by the parties". The officer further stated that the assessor had reviewed the matter and advised as follows: "I have reviewed the documents and reached some tentative conclusions. I cannot proceed further without re-examination because there are a number of issues, including consistency, which need to be put to the claimant."
The clinical examination by audio-visual link was then organised.
There may be some doubt as to whether the assessor's conclusions were correctly described as "tentative". That language is sometimes used (including in courts) to describe what is in fact a firm but preliminary opinion which may or may not remain the same depending on what steps are taken thereafter.
Such an opinion does not exhibit "prejudgment": rather, it demonstrates a judgment formed on the available material provided for the purpose of exercising a statutory function. It is not a view formed without regard to proper material. If it were to be identified as a form of reasonable apprehension of bias, it would need to be shown that a lay observer, conscious of the medical assessor's expression of views up to that time (and assuming the first part of the reasons had been written at that time), might reasonably think that the assessor's mind might be closed to any further contrary view. [17] In my view, that test could not be satisfied in circumstances where the decision-maker was drawing attention to the inadequacy of the materials provided to him and inviting the claimant to present further material in order to support his claim. (In fact, a more nuanced test may be appropriate in relation to administrative decision-makers, and particularly a medical assessor: Minister for Immigration and Multicultural Affairs v Jia Legeng. [18] )
At worst, the hypothetical observer might withhold approval until it appeared how any further step in the process was worked through. There was no basis to assume that the offer of procedural fairness was intended as an abuse of the power. Indeed, to the extent the assessor proposed to rely on the "inconsistencies" (as he was entitled to do), the proposed examination was a step required by cl 1.43 of the Motor Accident Permanent Impairment Guidelines. [19] If that analysis is correct, what followed was patently inconsistent with the suggestion of some form of lack of good faith.
Of the remaining eight pages of the written reasons prepared by the assessor, most were an account of information obtained in the course of the clinical examination, together with the inferences drawn from it. It is clear from the structure of the reasons that the assessor obtained, in order, (i) brief personal details, (ii) a history of the motor accident, (iii) a history of symptoms and treatment following the motor vehicle accident, (iv) a response to a question as to whether there had been any other injuries or conditions arising since the motor accident, (v) the plaintiff's current symptoms and (vi) his current and proposed treatment. The assessor also summarised that part of his interview conducted with the plaintiff's wife, and referred to a "mental state examination" during which he concluded that a basic cognitive test was not necessary because he had formed the view that "there was no cognitive impairment arising from physical or psychological causes". The assessor then assessed the plaintiff's "current functioning" in accordance with the categories provided by the Guidelines.
It is significant that the assessor asked the plaintiff to describe his psychological symptoms, which the plaintiff identified as "depression, nightmares, disrupted sleep, hopelessness, anger and panic attacks". What followed was a questioning by the assessor as to the onset of each of those six categories taken in order. In relation to none did the plaintiff identify a time of commencement. The plaintiff then volunteered an additional difficulty (with sexual function) but was again "uncertain of the time of onset of these symptoms".
The assessor then noted that the plaintiff "did not spontaneously indicate he suffered from various behavioural disturbances", but these were specifically raised with him by the assessor. His responses were recorded.
In a final section before setting out his determination, under the heading "consistency of presentation", the assessor set out five particular inconsistencies which he considered significant and which were revealed on the evidence (there were in fact seven matters raised but the following is a sufficient indication of how they were dealt with): "I informed Mr Rahman that surveillance video showed him thoroughly cleaning a Toyota Kluger van in August 2016. The whole process took longer than an hour and he was in no way physically or cognitively disabled as he washed, dried, polished and vacuumed the vehicle. He said the only reason he was able to do this was because he was taking strong medication. He also said his wife helped him with the process. In fact there is no vision of his wife helping him with the process and there is no indication that he was dulled or slowed by strong opioid medication. I informed Mr Rahman that Uber records indicate that he made approximately 700 trips as a driver in 2017. He said he did not know the exact number of trips but confirmed he had [bought] two cars and tried on two occasions but had to give it up and sell the cars because of his psychological symptoms in order to cut his losses. He told me quite vehemently that Uber driving and taxi driving are very different. He said a taxi driver has to stay on the job all the time while an Uber driver can do short trips. He seemed not to appreciate that this indicated a significant ability to drive."
The reasons dealt with the clinical examination in terms which demonstrated that it was methodical and comprehensive, and the information provided was carefully assessed and evaluated. It was an entirely appropriate and effective method of providing an essential opportunity for the plaintiff to respond to the problems identified in the material before the assessor. The challenge based on any form of procedural unfairness must be dismissed.
Grounds 1 and 2.3 are without substance.

Irrelevant considerations - ground 2.2

Ground 2.2 involved three particulars, namely that: 1. the assessor had observed that there was no reference to psychiatric symptoms in the notes of the plaintiff's general practitioner in the first four consultations following the accident; 2. the assessor had failed to explain why the absence of a report of psychological symptoms for three weeks was a relevant consideration, and 3. the reference to a consultation with the plaintiff's solicitor was an irrelevant consideration.
With respect to (3), the plaintiff's written submissions noted: "It is uncontroversial that the plaintiff's solicitor completed the personal injury claim form, which contains no reference to psychological injury." It was undoubtedly open to the assessor to have regard to that fact.
With respect to (1) and (2), it is clear from the extracts from the assessor's reasons already identified above, that there was material before the assessor to suggest that the plaintiff was not only capable of continuing to drive during 2016 and 2017, but that he in fact did so. Further, the material suggested that he may have presented a false picture to the medical practitioners who were treating him. Indeed, there was evidence that he had denied to a psychologist and a psychiatrist any capacity to drive a vehicle, and was receiving encouragement from them to do so, whilst he was in fact actively driving for commercial purposes.
Whether, and if so when, symptoms of psychological injury first arose would appear to be relevant to assessing those conflicting aspects of the evidence. Whether or not they were significant, was a matter for the medical assessor, and not for the court. The concept of "relevance" is not something that can be assessed abstractly in the case of expert opinion. Relevance depends upon matters on which the court would not act without expert evidence. In any event, those are pre-eminently factual matters which are beyond the function of a court exercising judicial review.
As explained in Wingfoot, the purpose of the assessor's reasons was to identify the path by which he reached his conclusions. He did not have to provide textbook references to justify the matters he took into account, nor, for example, explain how he applied the principles set out in DSM-5. The reasons were not deficient.
On the other hand, it is clear from the reference to the lack of any record of psychiatric symptoms despite regular visits to his general practitioner for three weeks following the accident, followed by the sudden and unexplained diagnosis of PTSD on 19 May 2016, that the assessor was pursuing evidence of a causal link. Indeed, the assessor may have been generous in considering that the note of the consultation on 19 May constituted a diagnosis of PTSD: it merely referred to "PTSD issues" as amongst the issues discussed at a "case conference".
The claim that the assessor took into account "irrelevant considerations" is without substance.

Failure to take into account relevant evidence - Ground 2.1

There were two particulars pressed with respect this ground of supposed jurisdictional error. Even without referring to the particulars, it should be noted that the formulation of the ground is fatally flawed. As noted above, "evidence" is not the correct term. What must be taken into account is a consideration which is mandated by law, for example under the Act. No such omitted consideration was identified.
The first particular turned on a proposition raised by the assessor himself in trying to identify a "clear history of the development of [the plaintiff's] psychiatric symptoms". In the course of the paragraph in question, the assessor dealt with pain, amnesia, anxiety, fear of death, intrusion or hyperarousal symptoms, and PTSD. His last sentence read as follows: [20] "It is possible the depressive symptoms arose as a consequence of impairments due to his physical injuries."
The particular assumed, without further development in submissions, that, having raised a possibility, the assessor would fail to exercise his proper function according to law by failing to explore the possibility. It is by no means clear that the assumption was capable of being made good. However, taking it at face value, a number of points should be made.
First, the possibility which was raised was not directed immediately to a psychiatric injury, but only to "depressive symptoms". Secondly, the hypothetical raised by the assessor did not indicate what kind of physical injuries might give rise to such symptoms. Thirdly, putting all of that to one side, the submissions needed to address what might have constituted an examination of the possible psychological symptoms arising from physical injuries. One answer may be to consider whether the psychiatrists and psychologists who were aware of the physical injuries and saw the plaintiff at a time closer to the accident made any such observations. A further source for consideration might have been the development of cognitive impairments as a result of head injuries. In fact, these were the next two matters addressed by the assessor, and no submission was made as to why they did not constitute a following through of the possibility which the assessor had himself identified. They read as follows: "Reports by other psychiatrists have not clarified the issue of the development of his psychiatric symptoms. Assessor Jager indicated the claimant was 'frightened' in the motor accident and went on to develop panic attacks, but does not state the panic attacks occurred two years later…. In 2017 Dr Christopher Canaris described only the development of physical symptoms immediately following the accident. He reported the claimant had returned to the hospital the following day with inability to move his hands and neck and diplopia but said he was sent away 'because it was workers compensation'. There is no record of this in the Westmead Hospital file. A further report by Dr Canaris in 2019 did not clarify the matter. The clinical record of treating psychiatrist Dr Ahmed also does not clarify the matter. He stated the claimant expresses his psychological symptoms largely by pain in his elbow and head. He described his physical symptoms as a culturally appropriate manner of expressing PTSD symptoms. I am not convinced by Dr Ahmed's hypothesis that his physical symptoms are a culturally mediated form of PTSD. I find the claimant's description of his cognitive symptoms of amnesia and impaired cognitive function inconsistent with the injuries sustained in the motor accident. There was a mild superficial head injury which did not warrant sutures. In October 2016 neurologist Dr Kahn raised the possibility of a post-concussion syndrome 'if there had been a mild head/neck injury'. This appears to have been interpreted by the general practitioner and the claimant that he in fact does suffer from post-concussion syndrome…. On subsequent multiple occasions when examined the claimant has exhibited extreme and bizarre symptoms of cognitive impairment. This appeared to reach its zenith when he was examined by Assessor Fitzsimons. She determined there was no traumatic brain injury. Reports by a number of other neurologists supported this finding…. Video surveillance … reveals no cognitive impairment. It is also clear that a person with any form of amnesia would be unable to drive a taxi or an Uber."
I read those passages as a search for plausible evidence of psychological symptoms following physical injury. For these various independent and sufficient reasons, the first particular is without substance.
Particular 2 was abandoned.
Particular 3 relied on the failure of the assessor to make any reference to a report of Dr Hussain dated 18 October 2020 "in which he expressed a number of opinions directly relevant to the plaintiff's psychiatric illness". [21] It was submitted that "Dr Hussain has treated the plaintiff for more than five years".
The last statement was potentially misleading. It was probably intended to be understood as five years from the date of the issue of the summons, which would take one back to mid-December 2016; that is from a time some seven months after the accident.
It is not in dispute that the plaintiff's general practitioner at the time of the accident was Dr Awais, not Dr Hussain, although they worked in the same practice. When the plaintiff attended the practice on 5 May 2016, apparently in the absence of Dr Awais, he did not see Dr Hussain. Nor did he do so on several visits thereafter. The practice records in evidence up to 2 June 2016 did not show a consultation with Dr Hussain. The report itself stated that Dr Hussain first saw the plaintiff on 10 July 2016. It attached an itemised list of all consultations, the second being on 12 October 2019 (that is more than three and a half years after the accident).
There was nothing in the medical history recorded by Dr Hussain which gave any indication as to a causal link between the plaintiff's psychological conditions and the accident, other than the statement that he had had no mental health issues prior to the accident. It was therefore unlikely that the assessor would have placed weight on the views of a general practitioner who did not treat the plaintiff until several months after the accident. Further, as the plaintiff was then obtaining advice and treatment from psychologists and psychiatrists, the later views of a general practitioner would have been unlikely to carry weight. There was no obligation as a matter of law on the assessor to refer to all the evidence before him.
The provenance of the report also reduced its significance for the purposes of the assessor's reasoning. Counsel for the insurer stated that the report of 18 October 2020 was presented to support an invitation to the insurer (made by the plaintiff's solicitor on 6 November 2020) to abandon its opposition to the application by conceding a whole person impairment greater than 10%. The reason, supported by Dr Hussain's report annexed to that letter, was the potential for harm to the plaintiff of a further medical assessment. Counsel submitted that there was nothing new in the report and therefore nothing which required attention from the assessor.
The Court of Appeal has, on more than one occasion, remarked on the volume of material which is routinely provided to medical assessors under the Act and under workers' compensation legislation. (Providing it to the court is also commonplace, though misconceived. [22] ) Not only is there no general law principle requiring an assessor to refer in reasons accompanying a certificate to all the documentation to which he or she has had access, but rather, the function of the assessor is inconsistent with any such obligation. A judicial officer is not required to refer to each piece of evidence in a judgment determining the resolution of a dispute to which expert opinion is critical. [23] As noted above, the function of the medical assessor is quite different. The assessor is not resolving a dispute between experts, but forming his or her expert opinion. The application of expertise permits (and indeed requires) the assessor to be discriminating as to that material which he or she considers significant and that which may be disregarded or given little weight. There is no requirement to identify material falling into the latter category, nor to justify its exclusion from consideration.
In the present case, the list accompanying the plaintiff's response to the application for referral to a medical assessor identified 113 documents covering a little over 600 pages. Of six documents prepared by Dr Hussain, the assessor referred to two. One was a report dated 19 January 2020 which noted the medications which had been prescribed for the plaintiff at that date (there were 16), and a medical certificate dated 15 July 2021 in which Dr Hussain "stated the claimant suffers from major depression, PTSD and an anxiety disorder with severe anxiety at times leading to a panic attack". The assessor further noted that Dr Hussain had recommended that the plaintiff's wife be present with him during the video examination, drawing an implication that "the claimant would have a severe panic attack leading to hospitalisation following detailed questions and answers if his wife was not present to assist". [24] That recommendation echoed statements which were made in the earlier report prepared for a similar purpose, namely as a basis for resisting the need for the plaintiff to undergo a further clinical examination. The suggestion that there was legal error on the part of the assessor in failing to refer to the earlier report is manifestly unsound. Ground 2.3 is rejected.

The potential for an incongruous outcome

Because each of the grounds relied upon by the plaintiff has been rejected, the application for judicial review must be dismissed. It is therefore not necessary to resolve the anomaly (or incongruity), had error been established on the part of the medical assessor, but not on the part of the President's delegate in rejecting the application for review of the medical assessment. However, because such problems are likely to recur, and the issue was raised as a potential problem in the present case, it is appropriate to record the nature of the issue.
As counsel for the plaintiff acknowledged, all the grounds of judicial review had been raised before the delegate and rejected. In his submission, the appropriate course, if the medical assessment were set aside, would have been to grant relief with respect to the decision of the delegate, namely to set the decision aside, although there had been no challenge to it. Without considering the basis for the outcome, that step was taken in the recent decision of Lederer. [25]
The first point to note is the function of this Court. As explained in Wingfoot, unless constrained by statute, a court exercising supervisory jurisdiction has the power to review for jurisdictional error and error of law on the face of the record an administrative decision which has a legal effect. [26] Unless replaced by a subsequent certificate, a certificate issued by a medical assessor can preclude a person obtaining damages for non-economic loss as a result of an injury sustained in a motor vehicle accident by the fault of another person. The certificate of the assessor is therefore a document having legal consequences and is susceptible to judicial review.
There is no privative clause of a kind which may, under state law, preclude review for error of law on the face of the record. In some circumstances, the unavailability of such review may be inferred from the statutory scheme, despite the absence of an express statement in the statute to that effect. Such a constraint was raised by implication from the scheme of the Building and Construction Industry Security of Payment Act 1999 (NSW) with respect to the review of decisions of adjudicators. [27] The anomaly which is the subject of present concern may suggest a similar construction should be given to the Act. However, an important difference between the Act and the legislation considered in Probuild is that the latter preserved the parties' contractual entitlements, providing an interim regime for recovery of progress payments and leaving the contractual entitlements for enforcement after completion of the construction work, in a court. [28] No party in the present proceeding argued that the medical assessor's certificate was immune from review except by the internal process of appeal to a review panel on this basis.
The second important consideration is the nature of the function conferred on the medical assessor. Being essentially an exercise by which the assessor determines a question as to the nature of an injury (and its causes) in accordance with the highly regulated scheme for assessment of whole person impairment, it is an exercise in forming an expert opinion, and thus fact-finding. On the other hand, there is undoubtedly room for legal error in the application of the technical standards to be applied in forming the opinion. There is also room, as explained in Wingfoot, for a failure to comply with a statutory obligation to give reasons, which may result in reviewable error of law on the face of the record. Nevertheless, as stated in Wingfoot, under analogous legislation: [29] "A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else."
Thirdly, there is the function of the delegate of the President in forming a view as to whether a medical assessment made by a medical assessor should be referred to a review panel, pursuant to s 63(1) of the Act. The basis for review must be that the assessment "was incorrect in a material respect": s 63(2). The Act then confers on the delegate of the President an obligation to refer the dispute to a panel of at least three medical assessors, "but only if the [delegate] 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": s 63(2B).
There is no dispute that an exercise of power by the delegate is also open to judicial review.
The Court of Appeal held in Rodger v De Gelder [30] that the availability of review by a review panel and the exercise of the gateway function by a delegate (under an earlier statutory regime referred to as the "proper officer") did not preclude review of the medical assessment. Further, as held by the Court of Appeal in Keen, where there was no decision of a review panel, the decision of the delegate did not supersede the decision of the medical assessor, although the fresh assessment by a review panel might do so, thus removing the utility of, and therefore the availability of, review by way of certiorari in relation to the initial medical assessor's decision. [31]
With these principles in mind, it is convenient to turn to the nature of the incongruity or anomaly which can arise. That may be considered by reference to three different circumstances, namely, where the aggrieved party to the medical assessment (i) has not sought to apply for internal review, (ii) has applied for internal review, but the grounds do not extend to some matter which could form the basis of judicial review, or (iii) has sought internal review on grounds which are identical with those raised for judicial review.
Points (ii) and (iii) raise an issue as to whether it is open to an aggrieved party to seek review by a review panel on the basis of, say, procedural unfairness or inadequacy of reasons. In the present case, procedural unfairness was raised as a ground of internal review and was dealt with by the delegate. It was accepted by counsel for the plaintiff that all of the matters raised by way of judicial review were in fact raised in the application for referral to a review panel. It is therefore sufficient to focus upon the last category. However, it may be noted that, as a matter of discretion, it would be highly likely that a court exercising a judicial review function would refuse relief in the first set of circumstances (no application for internal review) except perhaps on a ground which was accepted as unavailable for that purpose. [32]
The anomaly or incongruity which arises in the present case can be identified in these terms. If all of the grounds raised before the delegate are rejected, it must be because the delegate was not satisfied, even to the level of a reasonable cause to suspect, that the medical assessment was incorrect in a material respect. Thus, the delegate found no reason to suspect that the "no evidence" statement involved a prejudgment by the assessor of the final outcome of the assessment. Had this Court found prejudgment, that finding on the probabilities must have encompassed a suspicion of prejudgment. Yet the plaintiff did not challenge the conclusion of the delegate. It may be that the Court's satisfaction that there was prejudgment could be a basis for submitting that the delegate's conclusion that there was not even a reasonable basis for suspecting prejudgment was not open to her and was thus manifestly unreasonable in the sense involving legal error. However, that was not the way the plaintiff put his case in this Court. Rather, he relied on the proposition that, as had been done in Lederer, the Court should be satisfied that prejudgment rendered the first medical assessment a nullity, thus removing a precondition to the exercise of review, which rendered the delegate's decision a nullity and required it to be set aside.
On one view, this approach does not so much remove the anomalous result as sidestep it by creating a temporal chain of nullity by declaring that the assessment not only was now, but had always been, a nullity so that the power to seek a review had not arisen. That requires the theory of "nullity" to do a lot of work. First, it requires that an error of law on the face of the record may create a nullity. Secondly, it requires that the functions of the delegate (and indeed of a review panel) are not engaged where the error would give rise to a "nullity". Otherwise, it involves setting aside a decision which, in its terms, is accepted to be lawful.
Another conclusion is that, by applying for an internal review, the party to the medical assessment has elected to treat the assessment as valid and effective, subject to the proposed review. The aggrieved party may say there was no practical choice, but merely a dilemma: if internal review were not pursued, judicial review of the assessment would likely be refused on discretionary grounds; [33] if internal review were pursued, the right to judicial review of the assessment would be lost, and if pursued later an extension of time could be denied. There remains the third possibility of pursuing both concurrently, but that might give rise to the need to elect whether to treat the assessment as valid but wrong, or as a nullity.
The resolution of these difficulties must await a case in which they arise directly. In Rodger v De Gelder (2011) the Court of Appeal rejected the relevance of election where the claimant (having a favourable assessment) had not challenged the decision of the proper officer (on an application for review by the insurer) to refer the matter for further assessment under s 62 of the Act (based on new evidence) but had participated in the subsequent assessment (and lost, the earlier assessment being set aside). [34] However, the circumstances in Rodger were distinguishable from the present case, and it may be that the reasoning was obiter, the dispositive conclusion appearing at [52].

Conclusion

Given, (i) the potential uncertainties facing a claimant in seeking both internal review and judicial review, (ii) an assumption that judicial review of an initial medical assessment is appropriate, (iii) the absence of prejudice to the insurer, and (iv) the absence of objection from the insurer, the claimant should have an extension of time to seek judicial review of the medical assessment certificate.
However, as none of the grounds pursued by the plaintiff have been made good the summons must be dismissed. The Court makes the following orders: 1. Extend time for the filing of the summons seeking judicial review of the medical assessment certificate dated 26 July 2021 to 17 December 2021. 2. Dismiss the amended summons. 3. Order that the plaintiff pay the costs of the first defendant in this Court.

Schedule of Exhibits Exhibit Document Document Date Document Author 1 Further medical assessment certificate 26/07/21 Assessor Wayne Mason 2 Determination of an application for review of a medical assessment 07/10/21 President's Delegate Sophie Jones 3 Medical assessment certificate 16/10/18 Assessor Robin Fitzsimons 4 Application for a referral to MAS by a claims assessor or court 16/07/20 Insurance Australia Ltd 5 Reply to an application for a referral to MAS by a claims assessor or court 15/01/21 Paul Curtis 6 Complete GP clinical records 02/06/16 iFamily Medical Centre Rooty Hill 7 Statement in the matter of Hafizur Rahman 08/06/16 Plaintiff 8 Medical report 25/04/17 Dr Christopher Canaris 9 Medical report 18/10/20 Dr Syed Hussain 10 Letter from Paul A Curtis & Co to Moray & Agnew 06/11/20 Paul Curtis 11 Letter from Moray & Agnew to Paul A Curtis & Co 11/11/20 Mark Malley 12 Personal Injury Commission online portal messages 31/05/21 Christine Nguyen, Mark Malley, Paul Curtis 13 Email from the Personal Injury Commission 14/07/21 Christine Nguyen 14 Claimant's submissions in support of application for review 17/07/21 John Ryan

Endnotes

The Act, s 58(1)(d).
Further medical assessment certificate, 26 July 2021 (Ex 1).
Determination of an application for review of a medical assessment, 7 October 2021 (Ex 2).
[2021] NSWCA 287 at [65]-[66] ("Keen").
Ex 1, p 18.2.
Ex 1, p 24.9.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (Mason CJ); [1990] HCA 33; L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15 at [33]-[34].
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156 (Glass JA).
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J); [1986] HCA 40; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [15].
(2003) 77 ALJR 1088; [2003] HCA 26 at [24]; see also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81] (Gaudron J).
(2013) 252 CLR 480; [2013] HCA 43 at [47].
Cf Lederer v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 322 ("Lederer") at [48].
Peko-Wallsend at 40.
Plaintiff's written submissions, filed 27 May 2022, par 19.
Ex 1 at p 18.2.
Ex 1 at p 1.
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11].
(2001) 205 CLR 507; [2001] HCA 17 at [99] (Gleeson CJ and Gummow J), [181]-[185] (Hayne J).
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] (Leeming JA, Beazley P and I agreeing); Rodger v De Gelder [2015] NSWCA 211 at [20] (Gleeson JA, Macfarlan and Leeming JJA agreeing). In the current Guidelines, see cll 1.40 and 1.41.
Ex 1 p 16.6.
Amended summons, 11 February 2022, par 17.
Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [61]-[70] (Leeming and Simpson JJA, with my agreement at [58]).
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259D (Kirby P), 271C-D, 273-274 (Mahoney JA); Mifsud v Campbell (1991) 21 NSWLR 725 at 728D (Samuels JA; Clarke JA and Hope AJA agreeing); (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 (Meagher JA).
Ex 1, p 16.1.
See fn 12 above.
Wingfoot at [30].
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4.
Probuild at [38].
Wingfoot at [56].
(2011) 80 NSWLR 594; [2011] NSWCA 97 at [91].
Keen at [60]-[62].
Rodger v De Gelder (2011) at [84]-[86].
Roger v De Gelder (2011) at [91].
Roger v De Gelder (2011) at [92]. 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: 12 August 2022

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