Rodger v De Gelder

Background

1. The injuries which Mr De Gelder claimed he suffered as a result of the motor accident included soft tissue injuries to his cervical spine, thoracic spine, lumbar spine and multiple fractured vertebrae. Since 2007 various medical assessors and review panels have assessed Mr De Gelder's whole person impairment including, whether the thoracic spine compression fractures observed in the region of T5 and T6 were caused by the collision. Other possible causes were a work injury accident sustained by Mr De Gelder in late November 2005 and that he was suffering significant osteoporosis.
2. The history of those assessments and earlier litigation by way of judicial review, is recounted by the primary judge at [6] - [19] of his reasons. It is only necessary to note that various assessors and review panels have reached different conclusions as to whether Mr De Gelder's thoracic spine injury was caused by the collision in August 2005.
3. In October 2011 Mr De Gelder commenced proceedings in the District Court against Mr Rodger. The insurer of Mr Rodger's vehicle was Insurance Australia Ltd trading as NRMA Insurance. Mr Rodger, by his insurer, admitted breach of duty of care but put in issue causation of the thoracic spine fractures and other claimed injuries. A hearing before Levy DCJ commenced on 21 May 2012 and the proceedings continued until 17 August 2012.
4. On 15 October 2012 Judge Levy made interim findings, including findings as to causation of the fractures to Mr De Gelder's thoracic spine which were consistent with the earlier medical assessments (that the injury was caused by the motor accident) but inconsistent with the medical assessment current at the time. His Honour referred the medical dispute back to the Motor Accidents Medical Assessment Service (MAS) for further assessment: s 62(1)(b).
5. On 18 December 2012 a medical assessor (Dr Harrington) certified Mr De Gelder's impairment at 20% as a result of cervical spine and thoracic spine injuries caused by the motor accident. On 7 December 2012 Mr Rodger applied to the proper officer of the Authority for a review. That application was granted.
6. On 21 May 2013 a review panel certified Mr De Gelder's impairment at 25%. Mr Rodger sought judicial review of that decision in the Supreme Court. Subsequently on 4 October 2013, Mr De Gelder consented to the orders sought. As a consequence the certificate issued by the review panel was quashed and the matter remitted to the MAS to be determined according to law.
7. On 4 February 2014 the Panel, being a differently constituted review panel, certified Mr De Gelder's impairment as a result of injury caused by the motor accident as 0%.
8. On 30 June 2014, Rothman J ordered that the proceedings in the District Court be stayed pending further order or determination of the judicial review proceedings before Hamill J: De Gelder v Rodger [2014] NSWSC 872.

The Panel's reasons

1. The Panel consisting of three medical assessors issued a certificate with accompanying reasons on 4 February 2014. The Panel's reasons (page 2) record that it had been provided with and considered documents including all the documents supporting the application for review and the reply to that application, as well as the original assessment certificate issued by Assessor Harrington, the letters of referral from the MAS to Assessor Harrington, all the documents which were provided to Assessor Harrington, the proper officer's statement of reasons for accepting the application and certain additional information from the solicitors for the parties.
2. The reasons also record that the "Panel considered all of the available evidence and decided that a re-examination of [Mr De Gelder] was necessary in order to reach a decision because the issue of causation of the thoracic spine compression fractures was to be decided and a more detailed history was required from Mr De Gelder" (page 4).
3. An examination by the three assessors of Mr De Gelder occurred on 4 February 2014. The Panel's reasons record the history obtained from Mr De Gelder, including: HISTORY … He stated that immediately after the accident he was in shock. He exchanged details with the other driver and then drove to his sister's house, 20 - 25 minutes away. Whilst at his sister's house he was reaching forward when he felt spasms in the muscles of his back. He believed that at that time he had pain in his neck, mid back, low back, right shoulder and right wrist. The following morning he drove to a site meeting at UTS in Ultimo before driving back to Newcastle. He did not seek any medical attention as he believed the injuries were muscular and would resolve. Instead the symptoms gradually worsened. In late November 2005 he was on site when an air-conditioning unit was lifted by fork lift into the back of a utility. The unit was too far back so he bent forward to push it forward. He stated that even before he touched the unit he had onset of severe pain in his low back. There was no lifting or other strain. By that night the pain had become more generalized and involved his entire spine. He stated that the following day he was unable to bend to tie his shoelaces. Again he did not seek medical attention. He reported that in December 2005 his boss noted his discomfort and referred him to a chiropractor, Mr Angelo Angelopoulos. Following the initial assessment he stated that the chiropractor gave him a letter to take to Dr Goodman, GP who also examined him. He stated that the worst pain was in his low back but that he also had pain between the shoulder blades and was adamant that he had reported this to both the chiropractor and Dr Goodman. He believed that no investigations had been arranged at that time. He continued to attend the chiropractor for regular treatment until late 2006. During this period his pain did not resolve. The chiropractic treatment had never caused acute pain in the thoracic region. He stated that the pain was worse in the low back but also between his shoulder blades. In September 2006 he consulted Dr Mehta, GP who arranged for x-rays. These x-rays revealed some anterior wedging of the T5 and T6 vertebral bodies as well as significant osteoporosis. Subsequently Mr De Gelder reported seeing a number of doctors including Dr Epstein, Endocrinologist for his osteoporosis and Dr Russo, Pain Management specialist for his spinal pain. Dr Epstein arranged for Zometa infusions for his osteoporosis and Dr Russo arranged for injections in his cervical spine plus medial branch blocks in the cervical spine. The mainstay of his ongoing treatment was analgesic medication and anti-inflammatory medication.

The grounds of the application for judicial review before the primary judge

1. Mr De Gelder brought proceedings by way of judicial review of the Panel's decision in the Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). Six grounds were relied on, asserting jurisdictional errors and/or errors of law on the face of the record.
2. The first ground was that the Panel treated the absence of recorded contemporaneous complaints of injury in medical records as being decisive on the issue of causation of Mr De Gelder's thoracic spine injuries and other injuries. This was said to have involved jurisdictional error because the Panel identified the wrong issue and asked itself the wrong question, and was also said to involve error of law on the face of the record. Reference was made to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82]; Craig v The State of South Australia [1995] HCA 58; 184 CLR 163.
3. The second ground asserted that the Panel misdirected itself as to the law governing the issue of causation because it took into account Mr De Gelder's inability to explain why neither Dr Goodman nor Mr Angelopoulos had reported his complaints of thoracic spine pain. It was said that the Panel's misdirection appeared on the face of the record.
4. The third ground was related to the second. It asserted that the Panel relied on an irrelevant consideration, namely the inability of Mr De Gelder to explain why neither Dr Goodman nor Mr Angelopoulos had recorded his complaints of thoracic spine pain in their respective clinical notes. It was said that in this way the Panel had committed a jurisdictional error.
5. The fourth ground asserted that the Panel had failed to take into account material which was relevant in determining the connection between Mr De Gelder's thoracic spine injuries and the motor vehicle accident. This material was identified as five pieces of evidence and also the reasons of Judge Levy on the issue of causation. The five items of evidence comprised: 1. The contemporaneous account given by Mr De Gelder in an accident report completed the day after the accident, in which he referred to his vehicle having been struck from behind whilst stationary in traffic at a speed of approximately 90 km/hr, resulting in him experiencing pains in his neck, shoulder and the middle and lower back. 2. The letter dated 23 May 2012 from the chiropractor, Mr Angelopoulos, recording Mr De Gelder's presenting problem as being gradually worsening thoracic, lower back and left-side leg pain that immediately followed a 90 km/hr high speed motor vehicle accident on 24 August 2005. 3. Mr De Gelder's evidence before Judge Levy of experiencing severe and agonising pain in his thoracic spine, and other places, from the time of the accident onwards, unlike anything he had experienced beforehand; and his evidence that he felt pain in his thoracic spine when he arrived at his sister's residence shortly after the accident. (4) and (5) The evidence of Mr De Gelder's sister (Ms Young) and brother-in-law (Mr Young) before Judge Levy which was said to have corroborated Mr De Gelder's complaint of experiencing pain shortly after the accident.

The primary judge's reasons

1. After outlining the background, the statutory scheme, the principles of law governing judicial review and the standard of reasons required of administrative decision-makers, the primary judge turned to the issue of causation before the Panel.
2. His Honour observed that the controversy over causation arose because Mr De Gelder did not immediately consult a doctor about the motor accident, and that it was several months later, after Mr De Gelder had been lifting (or more precisely attempting to push) an air-conditioning unit at work, that he consulted a doctor and a chiropractor: at [41].
3. His Honour identified the causation issue as being whether the injury to the thoracic spine arose as a result of the car accident or was independent of it and, in particular, whether it was occasioned during the later incident at work: at [42].
4. At [43], his Honour set out cls 1.7 - 1.9 of the Permanent Impairment Guidelines, the terms of which have been set out above at [16]. His Honour noted that Mr Rodger did not concede that the Panel was called upon in the present case to make assessments as to both medical questions and legal questions. His Honour found this position difficult to understand or accept given the distinction drawn in cl 1.8 between a (a) medical determination and (b) a non-medical determination and the reference to a "non-medical informed judgment": at [44]. (It is to be noted that the Panel itself specifically adverted to this distinction and gave separate answers to these questions when addressing the thoracic spine injury: see the Panel's reasons set out at [35] above.)
5. Earlier (at [31]) his Honour had noted the function of a review panel carrying out a medical assessment identified by the High Court (in relation to an analogous scheme under Victorian legislation) in Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480; 88 ALJR 52 at [47]: The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness … . The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical 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.

Irrelevant consideration

1. As to ground 3, the primary judge found that Mr De Gelder's inability to explain the notes of Dr Goodman and Mr Angelopoulos was not a relevant consideration: at [60]. At [64] - [65], reference was made to authorities which emphasise that apparent inconsistencies between an injured person's oral testimony and accounts given to various health professionals may and often should be approached with caution: Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA); Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245 at [52] (Campbell J).
2. Notwithstanding this error by the Panel, the primary judge concluded (at [67]) that it would not be appropriate to quash the Panel's decision on this ground alone, since the Panel's certificate contained a single reference to this matter.

Relevant considerations

1. As to ground 4, the primary judge observed (at [69]) that the Panel's certificate showed that it had placed significant emphasis on the fact that it was unable to find contemporaneous records supporting the proposition that Mr De Gelder had complained of acute pain in the area of the fractures to his thoracic spine. His Honour accepted Mr De Gelder's submission that the absence of such evidence was a relevant consideration although, consistent with Mason v Demasi, it had to be treated with some circumspection.
2. The primary judge then addressed each of the five items of evidence relied upon by Mr De Gelder.
3. As to the first item (the accident investigation report), his Honour described this as the most contemporaneous document available to the Panel (at [71]), and considered that the fact that a complaint of pain to the middle back was made the day after the collision was a relevant consideration: at [74].
4. As to the second item (the letter from the chiropractor, Mr Angelopoulos dated 23 March 2012), his Honour noted with reference to the car accident on 24 August 2005, that Mr Angelopoulos recorded the following history given by Mr De Gelder (at [75]): As well as the lower back pain, he was experiencing pain in his lower thoracic spine between T8 and T12. The pain in both areas of his spine had started immediately after his car accident and was gradually getting worse.
5. As to the third item, his Honour set out (at [80]) various passages of the evidence of Mr De Gelder given before Judge Levy in the District Court proceedings, that he felt pain in his thoracic spine following the car accident. The evidence of Mr De Gelder included that he: 1. had complained immediately after the collision, when arriving at his sister's house (Ms Young), that he "was in severe pain" and "it radiated from my right arm down through my neck all the way down my body all the way down to my left leg" and "down through my thoracic and then it - it come [sic] from my lower back across to my left hip and then all the way down into my leg"; 2. had never had pain like that before in any of those parts of his body, and that when he sat down "it all went into spasm and I could almost feel all the ladders climbing up my back"; 3. could not sleep the night of the car accident and on the following morning he was feeling very sore. The worst pain which he was experiencing was in his thoracic and lower back, where it was "constant", and that he was in "agony" no matter what he did: at [80].

Inadequate reasons

1. Although strictly unnecessary to decide, his Honour expressed the view that the Panel's reasons were inadequate. His Honour considered that it was impossible from the reasons to understand the pathway of reasoning which led the Panel to its conclusion: at [98].

Issues on appeal

1. In his notice of appeal, Mr Rodger contends that the primary judge erred in two respects.
2. First it is said that his Honour erred in concluding that the Panel had failed: (a) to take into account a number of relevant considerations, being the body of evidence referred to above (relevant to the question of whether Mr De Gelder did in fact make a relevant and contemporaneous complaint following the collision); and (b) to engage with the reasoning of Judge Levy on causation, and in this regard had erred in distinguishing the present case from the circumstances in Wingfoot Australia Pty Ltd v Kocak.
3. Secondly, it is said that his Honour erred in concluding that the Panel had failed to provide adequate reasons.

Grounds of judicial review

1. Section 69 of the Supreme Court Act permits review by the Court, in its supervisory jurisdiction, in respect of the grant of relief in the nature of the writ of certiorari. Although the writs no longer issue, relief may be granted setting aside a decision either on the ground of jurisdictional error, or on the ground of error of law appearing on the face of the record: s 69(3).
2. The phrase "the face of the record" is defined to include "the reasons expressed by the Court or tribunal for its ultimate determination": s 69(4) of the Supreme Court Act. Here the "record" included the reasons of the Panel since s 61(9) of the MAC Act, which is made applicable to the Panel by s 63(6) of the MAC Act, required the Panel to set out the reasons for any finding by the Panel as to any matter certified in the certificate.
3. Counsel for Mr Rodger submitted that the term "tribunal" in s 69(4) included administrative decision-makers, such as a review panel, exercising power under the MAC Act, s 63. Counsel for Mr De Gelder did not put any argument to the contrary. In Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [14], Basten JA (Beazley JA and Sackville AJA agreeing) accepted, in the absence of argument to the contrary, that the proper officer of the Authority, exercising power under the MAC Act, s 63, was relevantly a "tribunal" for the purposes of s 69 of the Supreme Court Act. A review panel is in a position relatively analogous to that of the proper officer of the Authority, exercising power under the same provision. It is appropriate here, in the absence of argument to the contrary, to proceed upon the basis that the Panel is a "tribunal" for the purposes of s 69 of the Supreme Court Act.

First asserted error

1. It is convenient first to address Mr Rodger's challenge to the primary judge's acceptance of the fourth ground of judicial review based on the asserted obligation of the Panel to consider the five items of evidence. As the primary judge noted, the asserted obligation of the Panel to consider the reasoning of Judge Levy raises different considerations.

Mr Rodger's Submissions

1. The contentions of Mr Rodger may be summarised as follows. First it is said that the material the subject of the five items of evidence was before the Panel and was read and considered by the Panel. Reliance was placed upon the express statement in the Panel's reasons that all Panel members had confirmed that they had received and considered particular identified documentation. It is common ground that this documentation included the five items of evidence (and the reasoning of Judge Levy).
2. It was said that the weighing and balancing of the evidence was a matter for the Panel alone in the exercise of its statutory duty to form and to give its own opinion on the medical question referred to it: Wingfoot Australia Pty Ltd v Kocak at [47].
3. Mr Rodger placed greatest emphasis on the passage in the Panel's reasons that if Mr De Gelder suffered thoracic fractures as a result of the motor vehicle accident, he would have experienced significant localised pain which then resolved over 6 - 12 weeks. It was said that the transcript of the proceedings before Judge Levy established that he experienced some pain and discomfort following the accident, and that the first complaints of sharp severe pain occurred only some 3 months after the accident immediately following an incident at work while Mr De Gelder was moving an air-conditioning unit.
4. Accordingly, it was said that the Panel was not required to have regard to general evidence of pain in Mr De Gelder's mid back which did not rise to the standard which the Panel had identified as typically caused by vertebral fractures (tcpt CA at 21, lines 25 - 35).
5. Mr Rodger's argument, in effect, was that the Panel did consider the relevant evidence, and in doing so considered the relevant considerations to an assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

Mr De Gelder Submissions

1. Mr De Gelder sought to uphold the primary judge's finding that the Panel had failed to take into account the body of evidence which was directly relevant to the question of whether he had made a relevant and contemporaneous complaint of pain in his mid thoracic spine.
2. In oral submissions, counsel for Mr De Gelder contended that the Panel operated on a misunderstanding of the evidence. It was said that the Panel incorrectly described the evidentiary position from which it might be inferred that it had overlooked the evidence relied upon by Mr De Gelder in support of causation of his injury (tcpt CA at 42, lines 11 - 16).
3. In addition to the Panel's asserted failure to consider the five items of evidence, counsel for Mr De Gelder contended that the Panel's reasons disclose a misreading of the report of Dr Goodman. It was argued that, contrary to the Panel's reasons, Dr Goodman's report does mention a complaint by Mr De Gelder of back pain (as opposed to lower back or neck) and shoulder pain immediately following the car accident (tcpt CA at 31, lines 23 - 33).

Did the Panel fail to take into account a relevant consideration?

1. 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).
2. 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 on to consider: Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [195] (Gummow and Hayne JJ).
3. It seems that this did not occur before the primary judge. This remained the position in this Court. Although Mr Rodger contended that the Permanent Impairment Guidelines were delegated legislation and Mr De Gelder did not submit to the contrary, neither party identified any mandatory considerations the Panel was bound to take into account. Both parties proceeded on appeal on the same basis as they did before the primary judge - that relevant material was the same as a relevant consideration in the sense described in Peko-Wallsend. This approach, which his Honour adopted, was erroneous. The error, as Basten JA said in Cervantes at [15], is that "to describe evidence as 'relevant' to the case of one party is not to identify a 'relevant consideration' for judicial review purposes".
4. As will be seen below, if the matter is approached on this basis, which although erroneous was common ground before the primary judge and in this Court, then in my view no error has been demonstrated in the primary judge's findings that the five items of evidence were not taken into account by the Panel. My reasons for this conclusion appear below when addressing the related question of whether the Panel failed to respond to a substantial argument advanced by Mr De Gelder based on those items of evidence: see below at [101], [105] and [106] - [107].

Obligation to respond to a substantial argument

1. The contention relied upon by Mr De Gelder in oral argument, was that the Panel incorrectly described the evidentiary position and thereby impliedly overlooked the evidence relied upon by Mr De Gelder in support of causation of his injury. No complaint was made by counsel for Mr Rodger that it was not open to Mr De Gelder to raise this point on appeal either because it had not been raised below, or had not been raised in a notice of contention. It is appropriate for this Court to deal with the real issues which the parties were content to debate on appeal. This reflected the substance of Mr De Gelder's complaint before the primary judge, albeit not its legal characterisation.
2. In Cervantes at [19] - [22], Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account. The context in that case was the obligation of a claims assessor exercising power under the MAC Act, s 94. His Honour said: [19] Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Dranichnikov), Gummow and Callinan JJ stated: [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. [20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Miah) where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued: [81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of "refugee". [21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the [MAC] Act requires that a claims assessor "is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages": s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function. [22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2001) 243 CLR 164; 273 ALR 122; 119 ALD 446; [2010] HCA 48 at [35] (SZJSS).

Did the Panel fail to respond to a substantial argument?

1. The Panel's reasons with respect to causation of the thoracic spine injury are set out above at [35]. As to the medical determination referred to in cl 1.8(a) of the Permanent Impairment Guidelines, the Panel accepted that the rear end collision could have caused compression fractures in the thoracic spine, especially for an individual with pre-existing osteoporosis, even though any such injury was considered extremely rare.
2. As to the non-medical determination referred to in cl 1.8(b) of the Permanent Impairment Guidelines, the Panel considered that the only evidence supporting a thoracic spine injury at the time of the motor accident was the "history" given by Mr De Gelder. This may be taken to be a reference to the history which he gave to the Panel on 4 February 2014. Counsel for Mr Rodger did not suggest otherwise (tcpt CA at 14, lines 30 - 40).
3. In finding that the history given by Mr De Gelder was not supported by the clinical notes of either his treating chiropractor or Dr Goodman, the Panel reasoned that acute spinal compression fractures typically caused significant localised pain which then resolved over 6 to 12 weeks, and that this would have been reported to his treating practitioners and evident in their examination findings. The Panel considered that this history was not obtained from Mr De Gelder at the time of the Panel's re-examination, and there was no written documentation of acute pain relating to T5 and T6 in the clinical notes of Dr Goodman and Mr Angelopoulos.
4. There are two main difficulties with the Panel's reasoning. The first is that when considering the history given by Mr De Gelder, the Panel limited itself to the history given at the re-examination on 4 February 2014. No reference is made to the accident report immediately following the collision, the report of pain in the area of the thoracic spine in Dr Goodman's and the chiropractor's reports, or Mr De Gelder's evidence before the District Court. A related difficulty is that the absence of any reference to the evidence of Ms Young or Mr Young before the District Court. The second difficulty is that the Panel's reasons disclose a misreading of the report of Dr Goodman.
5. As to the accident report, counsel for Mr Rodger submitted that it was of little significance in the Panel's deliberations because it did not contain a report of significant localised pain in the thoracic region. The error in this submission is that the significance of individual items of evidence is not to be viewed in isolation from the other evidence, in particular, evidence of a contemporaneous complaint of pain in the thoracic region. The accident report itself described "sore neck, shoulder and sore middle and lower back". Having regard to the purpose of this report, a more detailed description of the injury would not be expected. This report needed to be considered together with the evidence of what Mr De Gelder subsequently reported to Dr Goodman and Mr Angelopoulos, and the evidence given by him and Ms Young and Mr Young in the District Court proceedings.

Reasons of Judge Levy

1. The primary judge correctly recognised that the asserted failure by the Panel to consider the reasons of Judge Levy raised somewhat different considerations to the body of evidence referred to above.
2. Counsel for Mr Rodger contended that although perhaps relevant, there was no "duty" (that is, obligation) on the Panel to consider Judge Levy's reasons because it was not a mandatory consideration (tcpt CA at 28, lines 1 - 7). Having regard to the course of oral argument, this aspect of the matter may be dealt with briefly.
3. First, as previously mentioned, medical assessments are procedurally subject to the Medical Assessment Guidelines made under s 44(1)(d). Clause 11.1 of the Medical Assessment Guidelines provides that review panels are not bound by the rules of evidence and may inquire into any such issue in such a manner as they think fit.
4. Secondly, the reasons of Judge Levy provide the context in which the matter had been referred again for assessment. The context was that a significant body of evidence had been identified by Judge Levy concerning a contemporaneous complaint of pain in the thoracic region at the time of and continuing after the motor accident. It may be expected that a medical assessor (or a review panel) could and would take note of such reasons where the power to refer again under s 62(1) has been exercised by the Court: Motor Accidents Authority v Mills at [80].
5. Thirdly, this does not mean that a referring court's reasons are a mandatory consideration. Counsel for Mr De Gelder ultimately did not press such a submission. Counsel accepted that beyond alerting the Panel to the primary material, the reasons of Judge Levy probably did not take the matter any further than the body of evidence already considered above (tcpt CA at 37, lines 45 - 50). That concession was properly made. The Panel was not required to respond to somebody else's opinion as to the cause of his injury. The Panel was required, relevantly, to make an informed judgment on a non-medical question in carrying out its statutory function under s 58(1)(d). This is not to say that the reasons of Judge Levy were not material relevantly placed before the Panel, as a referring court under s 62(1).

Second asserted error

1. Having regard to the conclusion in relation to ground 1, it is unnecessary to address ground 2 of the appeal which challenged his Honour's alternative reason for setting aside the Panel's certificate on the grounds of inadequate reasons.

Conclusion

1. For the above reasons, the appeal should be dismissed with costs.
2. LEEMING JA: I agree with Gleeson JA.

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