NSWNSWSC

Raina v CIC Allianz Insurance Limited

[2021] NSWSC 13

Supreme Court of NSW|2020-07-16|Before: Campbell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-07-16

Before

Campbell J

Catchwords

5D(1)(a)
5E, 3B(2)(a)
63(3) Motor Accidents Compensation Act 1999 (NSW) s 63
Supreme Court Act 1970 (NSW) s 69 Evidence Act 1995 NSW s 66A Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348

Source

Original judgment source is linked above.

Catchwords

5D(1)(a)5E, 3B(2)(a)63(3) Motor Accidents Compensation Act 1999 (NSW) s 63Supreme Court Act 1970 (NSW) s 69 Evidence Act 1995 NSW s 66A Cases Cited: AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348[2016] NSWCA 229 Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356[2018] NSWCA 22Bugat v Fox (2014) 67 MVR 150[2014] NSWSC 888Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088[2003] HCA 26Frost v Kourouche (2014) 86 NSWLR 214(2014) NSWCA 39Hossain v Minister for Immigration (2018) 264 CLR 123[2018] HCA 34Kioa v West (1985) 159 CLR 550[1985] HCA 81McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609[2008] NSWCA 163 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Judgment (24 paragraphs)

[1]

Background

Mr Raina was injured in a motor vehicle accident on 20 September 2017. His stationary vehicle was struck from behind by another vehicle. Mr Raina claimed that he suffered an injury to his cervical spine consisting of a disc prolapse at the C5/C6 level with right-sided C6 radiculopathy. The insurer contended that any injury to the cervical spine was a soft tissue "whiplash" injury only. Mr Raina's treating neurosurgeon, Dr Andrew Kam, recommended that Mr Raina undergo either a cervical discectomy with artificial disc replacement or a posterior cervical foraminotomy at the C5/C6 level. Dr Peter Bentivoglio, a neurosurgeon qualified to give evidence in the case, recommend that Mr Raina undergo a C5-6 anterior cervical discectomy and fusion. The insurer contended that the surgical procedures proposed by both Dr Kam and Dr Bentivoglio did not relate to any injury caused by the accident and were not reasonable or necessary in the circumstances.
On 12 April 2018, Mr Raina referred this medical dispute about his degree of permanent impairment to SIRA under s 60 of the Act for resolution by medical assessment. SIRA arranged for the dispute to be assessed by a medical assessor, Professor Alan Home, an occupational physician. SIRA rescheduled several assessments with Professor Home at Mr Raina's request. On 6 September 2018 the insurer referred the medical dispute about the necessity for spinal surgery and its connection with the motor accident to SIRA for resolution by medical assessment also.
On 24 September 2018 Mr Raina challenged whether Professor Home was qualified to assess neurosurgical issues and requested a neurosurgeon be appointed to assess his claim. I infer that his application was acceded to, at least in part, because on 16 January 2019 Mr Raina was assessed on behalf of SIRA by a different medical assessor, Dr Drew Dixon, an orthopaedic surgeon. Dr Dixon issued a medical assessment certificate under s 61 of the Act on 24 January 2019 certifying that: 1. Mr Raina sustained an injury to the cervical spine in the form of a C5/C6 disc herniation involving C6 nerve root compression, a C3/4 disc protrusion, a C6/7 disc bulge, foraminal stenosis at the C5/6 level and soft tissue injury as a result of the motor accident; 2. Mr Raina suffered whole person impairment of greater than 10%, namely 15%; and 3. The surgeries proposed by Dr Kam and Dr Bentivoglio related to the injuries caused by the motor accident and were reasonable and necessary.
On 19 February 2019 pursuant to s 63 of the Act the insurer applied for a review of Dr Dixon's assessment on the ground that Dr Dixon's findings did not equate with the medical history of Mr Raina's injury, including his complaints as recorded by his GP, Dr Wong, after the accident. On 18 June 2019, in accordance with s 63(3) of the Act and cl 16.17 SIRA Medical Assessment Guidelines the Proper Officer referred the matter for review by the Review Panel. The Review Panel was constituted by Dr Ian Cameron, rehabilitation specialist, Dr Geoffrey Stubbs, orthopaedic surgeon and Dr Clive Kenna, a general practitioner with expertise in musculoskeletal medicine and pain management.
On 17 July 2019 Mr Raina wrote a letter to the Team Leader, Dispute Services Division of SIRA in which he challenged the constitution of the review panel. It is necessary to set out some of that letter: … I note the Assessors are as follows: Assessor Ian Cameron - rehabilitation medicine Assessor Geoffrey Stubbs - orthopaedic surgeon Assessor Clive Kenna - musculoskeletal medicine general practitioner Given the specialities of Assessors Ian Cameron and Clive Kenna in particular, I consider that I would not be afforded procedural fairness with the Review Panel in its current state. Neither Assessors Cameron nor Kenna have the appropriate qualifications to properly consider whether I require neurosurgery, or whether such neurosurgical treatment would be reasonable and appropriate. This goes beyond undergoing a training course with SIRA to learn to measure Whole Person Impairment, as this goes to the heart of their training and clinical expertise. Assessor Dixon, in his MAS Certificate, has made medical findings that go far beyond the expertise of a rehabilitation specialist and/or general practitioner. Neither a rehabilitation specialist nor a general practitioner is properly qualified to comment on the reasonableness/necessity of a neurosurgical procedure that neither of those medical practitioners has ever, or will ever, perform. It is therefore procedurally unfair for those Assessors to review my MAS Certificate and to comment on surgery that they are unqualified to perform. Please note that these are not fresh concerns. I have previously raised similar concerns regarding suitably qualified experts in prior correspondence to SIRA (copy attached). On 24 September 2018, I expressed identical concerns with the appointment of an occupational physician for my MAS Assessment, and sought a suitably qualified Assessor. SIRA not only noted these concerns, but acted on them, and re-appointed a more suitably qualified Assessor to replace that occupational physician. . …
On 18 July 2019 ("the 18 July decision") the Proper Officer confirmed the constitution of the Review Panel. Her letter is as follows: … All parties were advised of the construction of the panel on 18 June 2019. The Panel met on 27 June 2019 and determined an examination was required and scheduled for 24 July 2019. I note your concerns about the construction of the panel.

[2]

I note the examination will be conducted by Assessor Stubbs and Kenna. Like Assessor Dixon, who conducted the initial assessment, Assessor Stubbs is an experienced Orthopaedic Surgeon. Contrary to your letter, Assessor Kenna is Musculoskeletal Physician. We do not have any neurosurgeon who are review panel assessors. I am satisfied the panel have the necessary experience and qualifications to conduct this assessment. … By way of reply, on the same day Mr Raina again objected to the constitution of the Review Panel on the basis that Dr Cameron and Dr Kenna were not suitably qualified to conduct the assessment and sought for a neurosurgeon to be included on the panel.

On 19 July 2019 the Proper Officer wrote to the parties and refused to constitute a different review panel for the purposes of the assessment ("19 July decision").
The Review Panel contacted Mr Raina to request an examination of him. The appointment was made for 24 July 2019. On 18 July 2019 Mr Raina wrote to the Proper Officer refusing to attend the appointment on the basis that the Review Panel was improperly constituted. Mr Raina confirmed this in writing to the Proper Officer on 20 July 2019.
On 23 July 2019 the Proper Officer sent the following to Mr Raina: The Panel wish to advise you that, although they have not made any preliminary findings, it is possible that the review might result in findings which may adversely affect your claim. The Panel note that in deciding not to attend the examination, you forego the opportunity to present your case.
On 6 December 2019 pursuant to s 63 of the Act the Review Panel issued a certificate which provided that: 1. Mr Raina suffered only a soft tissue injury to the cervical spine causing left sided symptoms as a result of the accident; 2. Mr Raina suffered from 5% whole person impairment; and 3. The treatments recommended by Dr Kam and Dr Bentivoglio were not reasonable and necessary as they were not causally related to the injuries sustained by Mr Raina from his motor vehicle accident.

[3]

Extension of time

Mr M A Robinson SC, who appeared with Ms J Gumbert for Mr Raina sought an extension of time to challenge the 18 and 19 July decisions of the Proper Officer pursuant to r 59.10 Uniform Civil Procedure Rules 2005 (NSW). Mr Robinson argued that in considering whether an extension of time should be granted I should have regard to the relevant factors that govern such an application. He drew my attention to El-Hanania v Vella [2019] NSWCA 167 and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369. In El-Hanania McCallum JA (Gleeson and Payne JJA agreeing) said at [41]: In addition to the factors to be considered pursuant to that rule, it is also relevant to have regard to the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA, Barrett and Gleeson JJA agreeing at [83] and [84] citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55].
Mr Robinson argued that the reason for the delay is because Mr Raina was exhausting his remedies within SIRA and that there would have been no basis for seeking judicial review if the Review Panel had determined that Dr Dixon's assessment was correct: Roger v De Gelder (2011) 80 NSWLR 594 ("De Gelder") at [91]-[92]. He submitted that the length of the delay is negligible having regard to the fact that the judicial review application was brought within 3 months of the Review Panel's decision. Mr Robinson argued that there is no prejudice suffered by the first defendant. Finally, he argued that Mr Raina has a reasonably arguable case.
Mr Rewell, who appeared for the first defendant opposed an extension of time being granted. Mr Rewell argued that Mr Robinson has failed to explain why the proceedings against the Proper Officer were brought out of time. In any event, Mr Rewell submitted that an extension of time would be futile as any challenge of the Proper Officer's decision is bound to fail. Mr Rewell sought to distinguish the present dispute between those where the plaintiff seeks to exhaust the administrative process before applying for judicial review. Mr Rewell argued that in this case Mr Raina frustrated the administrative process by consistently asserting that the Review Panel was incorrectly constituted and refusing to attend medical examinations.
Relevantly, r 59.10 provides: (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.

[4]

Submissions of the parties

Mr Robinson argued that the decisions of the Proper Officer and the Review Panel occasioned jurisdictional error, error of law on the face of the record or alternatively that the Proper Officer and the Review Panel constructively failed to exercise their statutory power in making the decision.
Mr Robinson submitted that the Proper Officer erred by unreasonably exercising her discretion and by failing to have regard to matters that were important and relevant. Mr Robinson submitted that it was unreasonable in the context of this dispute to include two medical assessors on the panel who were not surgeons and had no expertise in neurosurgery. He further submitted that the Proper Officer failed to have regard to cl 16.17 Medical Assessment Guidelines which required the officer to have regard to the nature of the injury in convening the review panel and that this amounted to a constructive failure to exercise her statutory role. He argued that in deciding not to re-constitute the review panel the Proper Officer failed to respond to a substantial and clearly articulated argument.
Mr Robinson argued that the Review Panel denied Mr Raina procedural fairness. He submitted that the Review Panel considered 22 studies, of which only 2 had been referred to in the evidence placed before them. Mr Robinson argued that the failure to put Mr Raina on notice of their intention to utilise the studies in informing their decision amount ted to a denial of procedural fairness. Further, Mr Robinson submitted that the Review Panel did not give Mr Raina notice of the questions it had for him and so denied him the opportunity to respond. Mr Robinson submitted that by operation of cl 16.16, 16.19.6 and 16.21 the panel has the power to request further information and the Review Panel failed to avail itself of this opportunity. Mr Robinson further submitted that it was a requirement of cl 1.41 of the Guidelines that where there were inconsistencies between the medical assessor's clinical findings and any medical records that the injured person must be given the opportunity to respond to the inconsistencies.
Mr Robinson argued that the Review Panel failed to respond or acknowledge to the substantial and clearly articulated argument put forward by Mr Raina regarding contemporaneous evidence of right sided symptomology consistent with the injuries claimed. Mr Robinson argued that this resulted in a constructive failure to exercise jurisdiction.

[5]

Relevant provisions

Section 44(1) is in the following terms: The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following: (a) the appropriate treatment of injured persons, (b) the appropriate procedures with respect to the provision of rehabilitation services or attendant care services for injured persons (including the circumstances in which rehabilitation services or attendant care services are required to be provided), (c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, (d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.
Section 59 of the Act provides for the appointment of medical practitioners and other suitably qualified persons as medical assessors.
By s 63 a party may apply to the proper officer for the review of a medical assessment by a review panel on the basis that the assessment was incorrect. Section 63(3) provides that the proper officer is to convene a review panel of at least three medical assessors if they are satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect.
Section 65 provides that medical assessments are subject to the relevant provisions of the Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes and or the review and procedures for assessment.
Clauses 5.1 and 5.2 of the SIRA Medical Assessment Guidelines ("Guidelines") provides that the Registrar or Proper Officer may abridge or extend any time limit fixed by the Guidelines.
Clause 9.15 is in the following terms: A party may, within 10 days of the date of sending of notification of the name of the Assessor, apply to the Proper Officer to have the dispute reallocated to a different Assessor. Such an application must be made in writing and be accompanied by a detailed statement of facts and/or reasons as to why the Assessor might no longer be an appropriate Assessor to assess the matter, and a copy must first be provided to all other parties to the matter.
The Guidelines don't appear to provide for any specific right of objection to the constitution of a review panel. However, given the right to object to the medical assessor on a primary application I am prepared to imply that the same right exists to object to the constitution of the review panel. This seems to confirm the procedure adopted in this case to the objections made by Mr Raina.

[6]

18 July decision

As I have said above at [6] on 18 June 2019 the Case Management Officer, Dispute Resolution Services Division, SIRA wrote to the parties advising them of the constitution of the Review Panel, the time and date the Review Panel would convene (being 27 June 2019 at 5:00pm), the documents the Review Panel had received and when they could expect the Review Panel certificate. At [7]-[10], I set out Mr Raina's objection to the constitution of the panel and the Proper Officers decision of 18 July 2019 overruling Mr Raina's objection.

[7]

19 July decision

The Proper Officer sent an email to the parties on 19 July 2019 at 3:18pm rejecting Mr Raina's request for a differently constituted Review Panel. Her email in full is as follows: Dear Mr Raina I have considered your response and the submissions from McInnes Wilson Lawyers. MAS advise that both Assessor Kenna and Assessor Cameron are medical assessors appointed under the Act. This requires, among others, that they have current APHRA Registration and recognised specialist accreditation. Ms Toshack has also provided further information about these Assessors which there is no need for me to repeat. In addition, Assessor Stubbs is an Orthopaedic Surgeon. Spinal surgery is usually conducted by either an Orthopaedic surgeon and/or a neurosurgeon. You will be examined by an Orthopaedic Surgeon. I am satisfied the review panel has the necessary expertise to conduct the assessment. Clause 9.15 of the Medical Assessment Guidelines provides as follows: A party may, within 10 days of the date of sending of notification of the name of the Assessor, apply to the Proper Officer to have the dispute reallocated to a different Assessor. Such an application must be made in writing and be accompanied by a detailed statement of facts and/or reasons as to why the Assessor might no longer be an appropriate Assessor to assess the matter, and a copy must first be provided to all other parties to the matter. You were advised of the construction of the panel on 18 June 2019. The Panel met on 27 June 2019 and determined an examination was required and scheduled for 24 July 2019. You have not complained about the construction of the panel until the week before the medical assessment. Not only has the panel already considered the matter, they have met by teleconference and arranged an examination. Referral to another panel, or substitution of a panel member, while could be allowed if there were a conflict, would unnecessarily delay resolution of the dispute, given I am satisfied the panel has the requisite expertise. I draw your attention to Clause 11.11.2 of the Medical Assessment Guidelines which states that when notification of a late cancellation is less than 72 hours, the claimant will be required to pay a cancellation fee, equal to the amount that MAS is required to pay the Medical Assessor. Please advise by return email if you will attend the examination.

[8]

Review Panel's reasons

In their decision of 6 December 2019 (CB 78 - 97) the Review Panel determined that either spinal surgery proposed by Drs Kam and Bentivoglio did not relate to the injuries caused by the motor accident and therefore were not reasonable and necessary in the circumstances. They assessed a 5% whole person impairment due to a left-sided, soft tissue injury of Mr Raina's neck. The panel's reasons may be summarised by reference to the following material: (CB 86) … Medical Assessment The Panel considered all of the available evidence and decided that a re-examination of the claimant was necessary in order to reach a decision, because of the variability in the reported physical findings and the interpretations of the MRI spine. The Panel noted there were be a number of questions to put to Mr. Raina, particularly the circumstances as to why the treating doctor's (sic) had certified that he had left sided neck and arm pain until the end of January and then the pain suddenly was on the right side. Accordingly, arrangements were made for the claimant to be examined by Assessor Kenna and Assessor Stubbs on 24 July 2019. It was decided that all injuries would be examined at that time. The Panel agreed to reconvene on the same day to discuss the matter further. However, Mr. Raina did not respond to the initial approaches concerning the date and eventually declined to attend. The examination and the teleconferences were cancelled. Mr Raina was unwilling to undergo physical examination but he did provide the MRI of the cervical spine performed in September 2017 which was circulated amongst the Panel members. It was decided at the 2nd teleconference to proceed based on the available material. B. Additional Evidence The Panel's interpretation Mr. Raina's MRI of 28 September 2017 … The para-sagittal view at the mid-point of the C5/6 disc bulge showed that the protrusion is a little less in the anterior to posterior tensions than in vertical height. The C6 nerve root is not compressed. Weak fluid signal from the nucleus is linear C5/6 rather than lenticular in shape which it is at C3/4 and C6/7. There is the question of bright signal indicating the possibility of fresh nuclear material within the disc bulge. The coronal view is not helpful. The Panel used the enhancement tools package on the CD-ROM to vary contrast and enhance T2 signal and found no soft nuclear material in the bulge. In simple terms this is a "hard disc" and is longstanding. The Panel did not find any evidence of acute injury in the soft tissues or evidence of occult fracture, instability or displacement or vertebral artery injury. The presence of a suspicious signal in the right lobe thyroid gland was noted. (Original italics.) (I interpolate, Mr Raina had extensive treatment for an intercurrent medical condition involving the thyroid in late 2017.) The final teleconference was held on 29 November 2019 to consider Mr. Raina's particular circumstances as given in the material provided (above) in light of the best evidence literature review included under the panel deliberations (below). (Original italics.) C. Panel Deliberations Background The Panel believes there are 4 issues: . What injury did Mr. Raina suffer that took him to the Parramatta Medical Centre after his motor vehicle accident? . Whether Mr. Raina has a cervical radiculopathy from a prolapsed intervertebral disc . Whether this was caused by the low-speed rear impact MVA . If both these criteria are met, what is the most appropriate treatment for the ongoing condition? To do this the Panel needed to assess the pertinent literature on: . The epidemiology, aetiology, natural history and response to treatment of cervical radiculopathy. . The medical aspects of whiplash syndrome as distinct from the mechanical concerning how and what injuries might be expected. . The reliability of MRI in the diagnosis of cervical radiculopathy generally and, in particular, those changes seen in low-speed motor vehicle accidents. . The Panel's interpretation of the September 2017 MRI in light of Mr. Raina's history. . How this evidence related to Mr. Raina's circumstances, in particular the apparent shift of arm symptoms from the left to the right side approximately 17 weeks after the motor vehicle accident. . The possible further treatment options, in particular the expected results of surgery.

[9]

The references in the Review Panel's conclusions to Castro, Cormier, Krafft and Jumor are to authors of some of the 22 papers considered in its literature review. As I have said of these papers specifically mentioned only the second paper of Krafft was referred to in medical evidence exchanged prior to the proceedings before the Review Panel

[10]

Relevant legal principles

In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J said (at 39 - 41) that a relevant consideration is one the decision-maker is bound to take the matter into account in making its decision. Mason J also said that whether the decision-maker is bound to take the matter into account is a matter of statutory construction. He further remarked that not every instance of a decision-maker failing to take into account a relevant consideration will justify the court setting aside the impugned decision. Where a factor is insignificant so as not to materially alter the decision there will be no justification for setting aside the decision.
In De Gelder Gleeson JA said the following: [84] It is well established that reference to a "relevant consideration" in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Peko-Wallsend at 39; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 (Cervantes) at [15] (Basten JA; McColl and Macfarlan JJA agreeing). [85] As Basten JA explained in Cervantes at [15], this ground required the respondent, Mr De Gelder, to identify the legal obligation on which he relied to identify what were mandatory factors to be taken into account for the purposes of the Panel's decision. The identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called to consider: Abeebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [195] (Gummow and Hayne JJ).
In Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 ("Boyce") Basten JA held at [19] - [22] that a failure to comply with guidelines may constitute a constructive failure to perform a statutory duty.

[11]

Legal unreasonableness

In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Hayne, Kiefel and Bell JJ said at [76]: Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Crennan and Bell JJ said at [131]: … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

[12]

Failure to respond to a substantial and clearly articulated argument

In Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Gummow and Callinan JJ said at [24]: 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. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal. The governing statute expressly excluded denial of natural justice as a ground of review. However, their Honours were of the view, the statutory exclusion notwithstanding, that the denial of procedural fairness remained a constructive failure to exercise jurisdiction for the purpose of Constitutional writs lying against an officer of the Commonwealth under s 75(v).

[13]

Denial of procedural fairness

In Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Mason J said at 587: …recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. That case was concerned with administrative, immigration decisions. In that context Mason J said: However, this is not to say that fairness will necessarily, or even generally, require that an applicant for a further entry permit be given an opportunity to be heard even where deportation may follow from its refusal. … The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.
In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 French CJ and Kiefel J said the following at [9]: … Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. …
In Frost v Kourouche (2014) 86 NSWLR 214; (2014) NSWCA 39, a case concerned with the exercise of the powers of a MAS Review Panel, Leeming JA (with whom Beazley P and Basten JA agreed) said: [31] … The "common law" usually will imply, as a matter of statutory interpretation, a condition that a power conferred by statute upon the executive branch be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power: Plaintiff S 10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97] … [32] It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550 at 587 ("the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it"). It is reflected in cl 1.43 of the "Guidelines for the assessment of the degree of permanent impairment" dated 1 October 2007, which (like the Medical Assessment Guidelines) bound the members of the panel by reason of s 65(1) of the Act. … [41] Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the Act, in McKee at [8], Allsop P said that "procedural fairness would require any and all necessary steps to ensure a fair hearing." The reference to McKee is a reference to McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163, also concerned with the exercise of medical assessment powers.

[14]

Review Panel's failure to ask Mr Raina questions

In Boyce Basten JA said at [15] that clause 16.21.2 of the Guidelines did not require a re-examination, but rather required the review panel to make an evaluative judgment as to whether one was required. Referring to Practice Note 3/2005 [4(a)(i)] his Honour noted that the general rule was that the review panel should conduct a re-examination except in cases where there was no dispute as to the clinical findings: at [28]. His Honour said that lack of compliance with the Practice Note may give rise to a question of procedural unfairness: at [26].
His Honour said at [94] - [95]: [94] The present case was not one in which a claimant was dissuaded from making submissions because she was misled by the decision-maker; rather it was a case in which the decision-maker failed to provide an opportunity either for an interview and clinical examination, or for further submissions, because it was itself misled as to the appellant's wishes, through no fault of hers. The result, however, was the same: the appellant was deprived of an opportunity to put her case fully before the Review Panel, either as to why she "objected" to the Panel proceeding "on the papers", or as to what she might do if her objection were rejected. That constitutes procedural unfairness; she did not have to tell the reviewing court what she would have said if she had been accorded the opportunity by the Panel, not least because the court could not (and should not) assess how the Panel might have responded. [95] Further, given the criteria and the statutory scheme outlined above, including by reference to the Permanent Impairment Guidelines, this is a case where impressions created by a personal interview and clinical examination may well have been of such potential significance that a reasonable review panel could not properly have denied her the opportunity for such a process had it been aware that she sought it. That alone may be sufficient to justify a finding of procedural unfairness. It cannot be demonstrated that the absence of such opportunities "did not deprive [the appellant] of the possibility of a successful outcome", and hence relief should not be refused. See also Sackville AJA at [122] - [124].

[15]

Review Panel's use of medical literature

Mr Robinson referred me to the decision of Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 ("Briggs"). In that decision Harrison AsJ considered whether the plaintiff had been denied procedural fairness because the review panel did not give the plaintiff notice of its intention to rely on a scholarly article. Harrison AsJ held that the use of the article denied the plaintiff procedural fairness as it was relied on to draw an important adverse conclusion about the plaintiff's case in circumstances where the plaintiff had no opportunity to respond. Mr Robinson also referred me to Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467 where Harrison AsJ held that a review panel should have afforded the claimant an opportunity to consider the document they were relying on to make their decision and a failure to do so amounted to procedural unfairness.
In Briggs, a review panel reproduced portions of a journal article, without attribution and relied on those passages to conclude that the claimant suffered a minor injury. Harrison AsJ found that the language used in the article sought to categorise the injury as either a "violent" or "less than violent" injury and therefore introduced a new standard to be applied in assessing the injury. In my view, the reliance on the article in that case led to the review panel asking itself the wrong question and thereby misconstruing its statutory function.
Justice Wright's decision in Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558 is a third decision in this same line of territory. His Honour found the failure of a Review Panel to disclose reliance upon an epidemiological survey he referred to as the Minnesota 1976 - 1990 study, and to provide the claimant with an opportunity to address any concerns arising from it, amounted to a denial of procedural fairness. His Honour analysed the study in quite some detail demonstrating its applicability to local New South Wales populations was not self-evident. His Honour said at [93]: I have already explained why the Minnesota 1976-1990 Study was not "unassailable". Nor can the conclusions of the study relied on by the review panel be said to be common knowledge. The fact that the study did not determine the outcome in the present case but was part of a multi-factorial analysis, if that be the case, does not, however, establish that the aspects of the study identified by the review panel were not a more than minimal factor in the review panel's conclusions, such as to attract the obligation to disclose the study to Mr Robson and allow him the opportunity to respond it.

[16]

Correct test of causation

In Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 at [31] RS Hulme AJ held (at [31]) that the lack of contemporaneous clinical record of complaint of a specific injurious consequence of a motor accident is not determinative of the question of whether that consequence was caused by the accident.
In AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 the Court of Appeal held that the review panel failed to exercise its statutory function by deciding causation solely on the existence or otherwise of contemporaneous evidence of complaint of the injury claimed. The Court said (at [64]-[65]): The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen's lumbar thoracic spinal injury was causally related to the "gait derangement", itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident? In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason the decision recorded in the panel's certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.
One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.

[17]

Materiality

Errors in the exercise of an administrative decision-making power are not taken to be "jurisdictional" unless they are shown to have affected the outcome. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Keiffel CJ, Gaegler and Keane JJ said (at [29] - [30]): That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made. (Footnotes omitted) Their Honours concluded (at [31]) that, at least ordinarily, the breach of a condition of the exercise of a statutory power "cannot be material unless compliance with the condition could have resulted in the making of a different decision".

[18]

18 and 19 July decisions of the proper officer

One may accept that the Guidelines allow a party to a medical dispute the procedural right to object to the "appropriateness" of the assessor or assessors, as the case may be, allocated for assessment of the dispute: clause 19.15 of the Guidelines. As I have already said (at [34] above), that "objection" must be made within 10 days of the date of the Proper Officer's notification of the name of the assessor(s) to whom the matter has been allocated. It should be borne in mind that Clauses 5.1 and 5.2 of the Guidelines empower the Registrar or the Proper Officer to abridge or extend time limits fixed by the Guidelines.
It's also quite clear in accordance with the terms of Clause 16.17.1 of the Guidelines that in constituting a Review Panel the Proper Officer is to have regard to the nature of the injury and any continuing disabilities, the nature of the dispute, practical matters such as geographical considerations "and any other relevant information".
I also accept that the general law principles of procedural fairness require that the assessors chosen for the task have appropriate medical qualifications and experience to make that assessment. To give an extreme example, procedural fairness would not have been afforded Mr Raina had a psychiatrist, an urologist, and a plastic surgeon been appointed to conduct this review.
The substance of Mr Raina's complaint was that only a neurosurgeon or orthopaedic surgeon with experience in spinal surgery was qualified to assess the dispute, particularly having regard to the matters about the appropriateness of the proposed treatment. Specifically, he submitted that neither Assessor Cameron nor Assessor Kenna had appropriate qualifications.
In her 18 July decision, made before she had received the submissions of the insurer, the Proper Officer pointed out that Assessor Stubbs was an experienced orthopaedic surgeon and asserted that Professor Kenna is a musculoskeletal physician, contrary to Mr Raina's assertion. She also stated that no neurosurgeon accredited as a medical assessor had qualified as a review panel assessor. She was satisfied that the appointed panel had the necessary experience and qualifications for the assessments required.
Mr Raina's second letter of 18 July 2019 made the same case with more emphasis pointing out that neither Assessor Cameron nor Assessor Kenna had surgical experience. He asserted the absence of a neurosurgeon on the roster of Review Assessors was "procedurally unfair".

[19]

Decision - the Review Panel Certificates

It is perhaps useful to commence by summarising how the Review Panel resolved the "4 issues" it identified as set out above at [41], under the heading C. Panel Deliberations. It needs to be borne in mind that its approach was informed by the succeeding 6 bullet points, not all of which, were referable to "the pertinent literature", contrary to the Review Panel's suggestion. The last two of those bullet points were separate factual enquiries: the Panel's own interpretation of the September 2017 MRI "in the light of Mr Raina's history"; and what the Panel described as "the apparent shift of arm symptoms" 17 in January 2018.
I would also observe, while acknowledging that it is not a ground of review, that there is a possible degree of pre-judgment in the formulation of these matters for determination. In particular the reference to "whiplash syndrome" in the second bullet point, and "the apparent shift of arm symptoms" in the sixth bullet point. If one assumes the nature of the injury is "whiplash" and that there has been a shift of symptoms from left to right about 5 months after the accident, one may be hardly likely to conclude that the right sided symptoms were an aspect of the injury apparently caused by the motor accident, but I digress.
Bearing in mind the refusal of Mr Raina to submit to a medical examination by the Review Panel, which opportunity was clearly extended to him, the Review Panel concluded on the basis of the complaints recorded in the clinical records made available to them, which did provide direct evidence of his complaints at that time (although not strictly applicable, see for example s 66A Evidence Act 1995 NSW), that the injury caused by the motor accident was a left-sided soft tissue injury of the cervical spine. There is no record of any right sided complaints in 2017. Indeed, when Mr Raina was referred by his GP for the MRI scan his complaints, as recorded by the GP, remained left sided. And this is so notwithstanding that Mr Raina subsequently gave a history to other medical assessors in 2018, such as Dr Kam and Dr Bentivoglio, that he experienced an onset of right sided symptoms within 24 hours of the accident. Had he attended for examination Mr Raina would have had the opportunity of explaining that to the medical assessor conducting the examination. It would have then been a matter for the Review Panel to decide, as a question of fact, whether it accepted Mr Raina's account in preference to the contemporaneous record. Having decided that the contemporaneous clinical records provided reliable evidence of Mr Raina's then complaints, it was open to the Review Panel to decide there is a clear lack of correlation between his symptoms and the radiological evidence provided by the MRI scan.

[20]

The use of the medical literature

The relevant principles are set out above. Kioa v West and The Minister v SZGUR established the relevant principle that a decision-maker must advise the person affected "of any adverse conclusion which would not obviously be open on the known material". It is clear that the conclusions adverse to Mr Raina, drawn from its review of the medical literature, was not drawn to his attention by the Review Panel. He was not asked to comment or allowed the opportunity to make further submissions.
While I find Mr Rewell's argument that the contents of peer reviewed medical literature forms part and parcel of an expert's special knowledge which could be brought to bear in an expert assessment without express mention attractive, the process adopted here was somewhat different. The Review Panel did not draw upon their accumulated medical knowledge including information derived from their ongoing professional development involving the reading of learned literature, just as a lawyer may enhance her or his knowledge by reading law reports. Rather, the members found it necessary to embark upon a specific, targeted review to resolve the issues they identified. Notwithstanding the other important adverse findings made, as I have said, it cannot be gainsaid that that review was influential in their decision-making process. It may have informed other important findings of fact. The conclusions derived from their specific review should have been drawn to Mr Raina's attention for his comment and submissions. I should say that even a court of ordinary jurisdiction may be under a similar obligation in regard to legal precedents not put before the court by the parties, but rather, representing the product of the judge's own research. In his judgment, in International Finance Trust Company Limited v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Heydon J (at [146]) said: If, in determining whether the law should be developed in a particular direction, the court has recourse to learned works, it ought to give the parties an opportunity to deal with all matters which the court regards as material. This ground is made out.

[21]

The failure to draw perceived inconsistencies to Mr Raina's attention and seek his responses to them.

Clause 1.4.1 of the Guidelines and, more fundamentally, the requirements of the common law of procedural fairness referred to by Leeming JA in Frost v Kourouche (see [53] above) generally require a person affected be afforded the opportunity of explaining apparent inconsistencies before they are used against her or him. In ordinary adversarial litigation this is achieved by cross-examination. It is clear from the highlighted portion of their reasons under the heading "Treatment - Reasonable and Necessary" extracted in the long passage at [43] above that the Review Panel felt at a disadvantage in resolving the contested questions of primary fact by the lack of an opportunity of discussing the matters with Mr Raina. I interpolate that Mr Raina submits that questions could have been put to him in writing, which matter could have been accommodated by Clause 1.41 (see [37] above).
I am not satisfied that this ground is made out. What procedural fairness requires is the provision of a fair opportunity for a person "to propound his or her case for a favourable exercise of the power": see SZSSJ (at [55]). Here a reasonable opportunity was provided to Mr Raina to attend for "a personal interview and clinical examination" (see, Boyce at [57]), during which he would have had full opportunity to present his case and in particular explain inconsistencies drawn to his attention by the examining assessor. The procedures adopted by the Review Panel did not deprive him of this opportunity. His own decision to refuse to attend for examination achieved that outcome. The letter of 23 July 2019 ([12] above) "warned" him his decision may result in adverse findings being made in the absence of explanations from him. He was not dissuaded from his refusal to attend. In those circumstances, the Review Panel had no real option but to make its decision on a review of the clinical material provided by the parties. It was not incumbent upon the Review Panel, having provided the opportunity for a personal discussion and clinical examination, to provide a series of written questions for Mr Raina's consideration. Practical justice had been offered. This ground is not made out.

[22]

Failure to respond to a substantial and clearly articulated argument

The argument the subject of this ground, as Mr Raina put to the Review Panel in writing, that within 24 hours of the accident he had developed excruciating pain, radiating down into his right arm. And that this had been drawn to the attention of not only Assessor Dixon but also Dr Kam and Dr Bentivoglio.
There are two reasons why this ground should be rejected. The first is factual and the second is legal. First, the Review Panel were well aware that Drs Kam, Bentivoglio, and Dixon received a history that Mr Raina's symptoms were always on the right-hand side. They referred to this in the same passage I have already referred to under the heading "Treating - Reasonable and Necessary" extrapolated at paragraph [43] above. And they evaluated that argument in the light of other materials provided to them for their review. The Review Panel rejected the argument on factual grounds.
The legal point is that in their formulation of this ground of denial of procedural fairness in Dranichnikov (see [50] above), Gummow and Callinan JJ premised the ground in terms of a "clearly articulated argument relying upon established facts" (my emphasis). The point is that the facts here were in dispute. An important part of the Review Panel's statutory function was to determine what the facts were about the receipt of injury and the resulting pattern of symptoms.
I reject this ground.

[23]

Failure to apply correct test of causation

The gravamen of this ground is that the Review Panel treated the contemporaneous clinical records as determinative of the question of legal causation. I have set out the relevant legal principles at [63] - [65].
It may be said that in formulating the issues for its determination (at [41] above), the Review Panel asked itself a wrong question by formulating it in the following terms: What injury did Mr Raina suffer that took him to the Parramatta Medical Centre after his motor vehicle accident? This formulation suggests that the Review Panel was applying a test of legal causation which required a direct and immediate temporal connection between the motor accident and the onset of the relevant symptoms.
However, if one reads their reasons fairly as a whole, it is apparent that the members of the Review Panel did not take this narrow legally incorrect approach. As I have already stated, given Mr Raina's refusal to undergo further examination by a member of the Review Panel, it was not unreasonable for the Review Panel to rely upon the clinical material. Although different decision-makers may have taken a more benign approach to the contents of this material than the Review Panel, it is apparent from their reasons that the members of the Review Panel would have been prepared to allow what I would regard as a degree of tolerance between the occurrence of the accident and the onset of relevant symptoms. It needs to be borne in mind that the case presented by Mr Raina, unlike the case of McGiffen (see [64] above), was one of immediate onset, or at least within 24 hours, of the relevant symptoms. On the evidence available to them, the members of the Panel were not satisfied that Mr Raina's case in that regard had been made out. The earliest reference the Panel were able to find to right side symptomatology, as I have said, was the revised certificate of Dr Wong of 31 January 2018, which they calculated to be 14 weeks after the motor accident. The Review Panel seem to have been conscious of the consideration that treatment for the effects of the motor accident may have been interrupted by the need for the applicant to have surgical and oncological treatment for his thyroid malignancy in the meantime. However, their findings may be repeated in the following terms: [The certificate of 31 January 2018] is 14 weeks after the motor vehicle accident and quite contrary to the initial descriptions provided by all three general practitioners between September and November 2017. … It is not medically plausible that the effects of the motor vehicle accident would be delayed by this length of time, rather radiculopathy occurs within days.

[24]

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 January 2021

Raina v CIC Allianz Insurance Limited

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