Rodger v De Gelder - [2015] NSWCA 211 - NSWCA 2015 case summary — Zoe

NSWNSWCA

Rodger v De Gelder

[2015] NSWCA 211

Court of Appeal (NSW)|2015-05-04|Before: Macfarlan JA, Gleeson JA, Leeming JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2015-05-04

Before

Macfarlan JA, Gleeson JA, Leeming JA

Catchwords

197 CLR 510 Ackling v QBE Insurance (Australia) Ltd [2009] NSWCA 881
75 NSWLR 482 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244
61 MVR 443 Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577
63 MVR 1 Campbelltown City Council v Vegan [2006] NSWCA 284

Source

Original judgment source is linked above.

Catchwords

197 CLR 510 Ackling v QBE Insurance (Australia) Ltd [2009] NSWCA 88175 NSWLR 482 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 24461 MVR 443 Allianz Australia Insurance Limited v Francica [2012] NSWSC 157763 MVR 1 Campbelltown City Council v Vegan [2006] NSWCA 28467 NSWLR 372 Craig v The State of South Australia [1995] HCA 58184 CLR 163 D'Amore v Independent Commission Against Corruption [2013] NSWCA 18777 ALJR 1088 Ex parte Hebburn LtdRe Kearsley Shire Council (1947) 47 SR (NSW) 416 Frost v Kourouche [2014] NSWCA 3986 NSWLR 214 Kirk v Industrial Court of New South Wales [2010] HCA 1239 CLR 531 Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340141 FCR 346 Mason v Demasi [2009] NSWCA 227 McKee v Allianz Australia Insurance Ltd [2008] NSWCA 16371 NSWLR 609 Meeuwissen v Boden [2010] NSWCA 25378 NSWLR 143 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30206 CLR 323 Motor Accidents Authority of NSW v Mills [2010] NSWCA 82

Judgment (19 paragraphs)

[1]

Background

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.
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.
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.
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).
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.
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.
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%.
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.

[2]

The Panel's reasons

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.
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).
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.

[3]

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

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.
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.
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.
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.
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.

[4]

The primary judge's reasons

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.
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].
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].
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.)
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.

[5]

Irrelevant consideration

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).
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.

[6]

Relevant considerations

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.
The primary judge then addressed each of the five items of evidence relied upon by Mr De Gelder.
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].
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.
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].

[7]

Inadequate reasons

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].

[8]

Issues on appeal

In his notice of appeal, Mr Rodger contends that the primary judge erred in two respects.
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.
Secondly, it is said that his Honour erred in concluding that the Panel had failed to provide adequate reasons.

[9]

Grounds of judicial review

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).
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.
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.

[10]

First asserted error

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.

[11]

Mr Rodger's Submissions

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).
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].
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.
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).
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.

[12]

Mr De Gelder Submissions

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.
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).
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).

[13]

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

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).
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).
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".
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].

[14]

Obligation to respond to a substantial argument

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.
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).

[15]

Did the Panel fail to respond to a substantial argument?

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.
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).
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.
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.
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.

[16]

Reasons of Judge Levy

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.
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.
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.
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].
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).

[17]

Second asserted error

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.

[18]

Conclusion

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

[19]

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: 23 July 2015

Parties

Applicant/Plaintiff:

Rodger

Respondent/Defendant:

De Gelder

Legislation Cited (3)

Motor Accidents Compensation Act 1999(NSW)ss 44, 57, 58, 60, 61, 62, 63, 65, 131, 132, 133

Interpretation Act 1987(NSW)ss 40, 41

Supreme Court Act 1970(NSW)s 69

Cases Cited (31)

Solicitors: Curwoods Lawyers (Appellant) CMC Lawyers (First Respondent) Acting Crown Solicitor for NSW (Second and Third Respondents) File Number(s): 2014/321789 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: De Gelder v Rodger (No 2) [2014] NSWSC 1355 Date of Decision: 3 October 2014 Before: Hamill J File Number(s): 2014/130575

HEADNOTE [This headnote is not to be read as part of the judgment] Mr De Gelder was injured in a motor vehicle accident on 24 August 2005 when a vehicle driven by Mr Rodger collided with the rear of Mr De Gelder's stationary vehicle. Mr De Gelder claimed that he suffered various injuries, including to his thoracic spine. Under s 131 of the Motor Accidents Compensation Act 1999 (NSW) Mr De Gelder was required to establish a degree of permanent impairment exceeding 10% before damages could be awarded for non-economic loss. A dispute as to the degree of permanent impairment must be assessed by a medical assessor, and in certain circumstances a review panel. In October 2011, Mr De Gelder commenced proceedings against Mr Rodger in the District Court. In October 2012, Levy DCJ referred the medical dispute back to the Motor Accidents Medical Assessment Service (MAS) for further assessment, exercising the Court's power under s 62. Ultimately, the medical dispute came before a review panel (the Panel). On 4 February 2014, the Panel revoked the certificate of a single medical assessor that certified the degree of Mr De Gelder's permanent impairment as 20% and instead certified a degree of permanent impairment as 0%. Mr De Gelder sought judicial review of the Panel's decision in the Supreme Court. Hamill J found that the Panel failed to take into account a relevant consideration, being a body of evidence directly relevant to the question of whether Mr De Gelder did make a relevant and contemporaneous complaint of pain in his thoracic region after the motor vehicle accident. Hamill J also found that the Panel's failure to engage with the reasoning of the referring judge, who had concluded that causation was established, amounted to a failure to take into account a relevant consideration. Mr Rodger appealed and submitted that the Panel did consider the relevant evidence and in doing so did not fail to take into account relevant considerations. Held per Gleeson JA (Macfarlan and Leeming JJA agreeing): (1) Neither party identified before the primary judge or on appeal any mandatory factor that the Panel was required by law to consider. To describe evidence as relevant to the case of one party is not to identify a relevant consideration for judicial review purposes: [84]-[87]. Applied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443; Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510. (2) Where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice. Natural justice applies to review panels exercising powers under s 63, and a failure to accord natural justice is a jurisdictional error: [89]-[94]. Applied: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. (3) The Panel's reasons disclose that it did not engage with the evidence of complaint by Mr De Gelder of the onset of thoracic pain at the time of and continuing after the motor vehicle accident. The Panel also misread a doctor's report that did record a history of pain in the thoracic region at the time of the motor vehicle accident. The Panel failed to respond to a substantial argument based on evidence relied on by Mr De Gelder as to the causation of his injury by the motor accident. This amounted to a jurisdictional error: [97]-[110]. Considered: Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480; 88 ALJR 52. (4) It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function in s 58(1)(d), because it misunderstood a significant body of evidence relevant to its determination. Jurisdictional error includes a constructive failure to exercise jurisdiction. The Panel's decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised: [95], [109]. Applied: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416. (5) A referring court's reasons are not a mandatory consideration for the purposes of the Panel's decision, though it may be expected that a medical assessor or review panel could and would take into account those reasons: [112]-[116]. Applied: Motor Accidents Authority of NSW v Mills [2010] NSWCA 82; 78 NSWLR 125. Appeal dismissed with costs.

The MAC Act

The MAC Act provides for a scheme of compulsory third party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. A description of the operation of the MAC Act is to be found in Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [7] - [15] (Beazley JA as her Honour then was).
Relevant to the present case is Pt 3.4 of the MAC Act which deals with the resolution of medical disputes, which include disputes about "medical assessment matters". Such disputes may be referred to the Authority for assessment: ss 57, 58 and 60. One type of medical assessment matter is a disagreement between a claimant and an insurer about 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%: s 58(1)(d). The assessor to whom a referral is made is required to give a certificate as to the matters referred: s 61(1).
With respect to the role of review panels, it is only necessary to note three matters.
First, the MAC Act provides for a review of a medical assessment by a single medical assessor on application of a party to a medical dispute, such application to be made to the proper officer of the Authority: s 63(1). The ground of the application must be that the assessment was "incorrect in a material respect": s 63(2). The officer is to refer the application to a panel of at least three medical assessors, but only if satisfied that there is "reasonable cause to suspect that the medical assessment was incorrect in a material respect": s 63(3).
Secondly, the review panel is to undertake a new assessment of all matters with which the medical assessment is concerned: s 63(3A). The review panel is not limited to the alleged incorrect aspect of the original assessment. The review panel may confirm the certificate of assessment of the medical assessor, or revoke that certificate and issue a new certificate as to the matters referred for assessment: s 63(4).
Thirdly, s 63(6) provides that s 61 "applies" to any "new certificate" issued by the review panel under s 63. One of the aspects of s 61 that is rendered applicable is s 61(2), which provides that a certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. Another applicable aspect of s 61 is s 61(9), which together with s 63(6), requires that the certificate set out the reasons for any finding by the review panel as to any matters certified.

The Guidelines

The Authority may issue medical guidelines with respect to the assessment of the degree of permanent impairment of an injured person: s 44(1)(c). Relevantly, on 1 October 2007 guidelines under this provision were issued: the "Guidelines for the Assessment of Permanent Impairment of a Person Injured as a Result of a Motor Vehicle Accident" (the Permanent Impairment Guidelines). Clause 1.2 states that the Permanent Impairment Guidelines are based on the American Medical Association publication "Guides to the Evaluation of Permanent Impairment" (4th ed 1995) (AMA 4 Guides), however the guidelines contain some very significant departures from that document. The Permanent Impairment Guidelines state that they are definitive with regard to the matters they address, but where they are silent on an issue, the AMA 4 Guides should be followed. The Permanent Impairment Guidelines are rendered applicable to the assessment of the degree of permanent impairment: s 133(2).
Under the heading "Causation of injury", the Permanent Impairment Guidelines state: Causation of injury 1.7 An assessment of permanent impairment is as prescribed under section 58(1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: "Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following. (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination". This therefore involves a medical decision and a non-medical informed judgment. 1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes. [Emphasis in original.]

[2009] NSWCA 881

(2001) 206 CLR 57

(2001) 243 CLR 164

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Under the heading "Panel Deliberations", the Panel stated: Cervical Spine: • The panel considered the contemporaneous medical documents within the substantial file supplied (the panel noted though that much of the documentation in the file was not contemporaneous but many years after the accident). ○ The personal injury claim form dated 1 March 2006 which lists the injuries as including; "dislocate two lower discs, L5/S1 disc joint, muscle pain / spasms". ○ The medical report of Dr Steven Goodman dated 11 April 2006 (for consultation on 8 December 2005) was primarily dealing with the exacerbation of his low back pain when bending forward on 30 November 2005. Dr Goodman does mention the previous car accident and states ["]He told me that three months earlier he had been in an MVA - he had been hit from behind. He had had back, neck and shoulder pain for three weeks but still had pain and stiffness after sleeping for more than 5 hours" and "I think he had muscle / ligament injury to his back, neck, shoulder in MVA". ○ The hand written clinical notes of Mr Angelo Angelopoulos, Chiropractor whom Mr De Gelder consulted in early December 2005, just over 3 months after the accident. Mr Angelopoulos initially listed the pain at L5 (lower lumbar spine). On 10 subsequent consultations between December 2005 and March 2006 he listed symptoms as being at L5 or T12. In April 2006 he first mentions symptoms at T8 as well as L5. Over 14 subsequent consultations he noted symptoms at variously T8, L4 or L5. The first mention of T5 (or T6) symptoms was in October 2006, more than 12 months after the accident and one month after his thoracic spine x-rays. No mention is made by the chiropractor concerning the cervical spine (neck). The panel considered the nature of the accident, a rear end collision, the history of immediate neck pain after the accident and the subsequent report of neck pain to Dr Goodman and concluded that there was sufficient evidence to confirm a soft tissue injury to the cervical spine causally related to the motor accident. • The panel concluded that the symptoms of the neck injury are ongoing and can now be considered as permanent for impairment assessment. • The panel noted at re-examination that there was residual tenderness and stiffness in the cervical spine. The panel found no evidence of muscle spasm or muscle guarding in the cervical spine. The range of movement in the cervical spine was decreased in all 3 planes but remained symmetrical. Thus there was no evidence of non-uniform loss of range of motion. Additionally there was no evidence of non-verifiable radicular complaint. • The panel noted that Assessor Harrington in his report had found DRE II without supporting reasons. Assessor Harrington had found "movements in his neck are restricted in all directions. There is no tenderness on deep palpation." The Assessor has not commented on the criteria for DRE II (muscle guarding, non-uniform loss of range of motion or non-verifiable radicular complaint), the panel therefore cannot see how Assessor Harrington came to the decision of DRE II for the cervical spine. • The panel concluded that the correct assessment of the cervical spine from Table 73 of the 4th Edition of the AMA Guides was DRE I or 0% WPI. Thoracic Spine • The panel carefully considered the medical evidence to support an injury to the thoracic spine causally related to the motor accident. • The panel noted that the earliest medical documentation was that of Mr Angelopoulos, the chiropractor from December 2005. In his initial examination findings and chiropractor treatment plan he makes no mention of thoracic spine symptoms or signs. By the end of December 2005 there is mention of T12 but no mention of T5 or T6, the area of the compression fractures. The panel noted that Mr Angelopoulos first mentioned T5, T6 14 months after the accident. • The panel noted that Dr Goodman reports seeing Mr De Gelder in December 2005 for low back pain but makes no mention of either mid back or thoracic spine symptoms or signs. • The panel also notes that the personal injury claim form dated 1 March 2006 also makes no mention of mid back injury. The only injury is 2 lower discs & L5/S1. Mr De Gelder did not list an injury to his mid back or thoracic spine. • The panel considered the history obtained at re-examination from Mr De Gelder when he was adamant that he had mentioned pain between the shoulder blades to both Dr Goodman and Mr Angelopoulos. He was unable to explain why neither practitioner had reported his complaint of pain. A particular difficulty that the Panel had when considering causation was that an acute traumatic fracture of cortical bone (such as vertebral fractures caused by the motor accident) typically causes significant localized pain which then resolves over 6-12 weeks. This history was not obtained from Mr De Gelder nor was there any written documentation of acute pain relating to T5 & T6. • Considering the length of time since the motor accident to the date of re-examination (8.5yrs) the panel considered that more weight should be placed on the notes of Dr Goodman and Mr Angelopoulos than the memory of Mr De Gelder. • The panel finally considered the section dealing with causation in the MAA Permanent Impairment Guidelines, 1 October 2007 which under paragraph 1.8 states; ○ Causation is defined in the Glossary on page 316 of the AMA4 Guides as follows; "Causation means that a physical, chemical or biological factor contributed to the recurrence of a medical condition." To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following. a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. b) The alleged factor did cause or contribute to worsening of the impairment, which is a non medical determination." • In answering part (a) the panel agreed that the rear end collision could have caused compression fractures in the thoracic spine, especially an individual with pre-existing osteoporosis, even though any such injury must be extremely rare, given the lack of such cases in published medical literature. In this the panel is in agreement with the report of Dr Epstein (7 March 2007), his treating Endocrinologist. • When considering part (b) the panel notes that the only evidence supporting a thoracic spine injury at the time of the motor accident is the history given by Mr De Gelder. His memory though is not supported by the clinical notes of either his treating chiropractor or Dr Goodman, the GP he initially consulted. The panel considers that two acute spinal compression fractures would firstly have caused significant localized pain and secondly that this would have been reported to his treating practitioners and evident in their examination findings. • The panel notes that compression fractures from osteoporosis can occur slowly over time without reports of pain or discomfort whereas acute traumatic compression fractures are associated with significant pain. • The panel also reviewed the radiological opinion of Dr Korber who noted both the compression fractures at T5 and T6 as well as the demineralization of the bone consistent with osteoporosis. Dr Korber also stated that it was not possible to tell the age of the fractures. • The panel concluded that there was no evidence to support either a soft tissue injury or acute compression fractures in the thoracic spine being causally related to the motor accident. Lumbar Spine • The panel noted that there was evidence of a soft tissue injury to the lumbar spine causally related to the motor accident. Both Dr Goodman and Mr Angelopoulos note reports of back pain and an exacerbation of back pain when bending forward on 30 November 2005. • The panel noted that Mr De Gelder's soft tissue injury to the lumbar spine has mostly resolved (noting his report that his lumbar spine feels pretty good at the current time) and his re-examination findings were essentially normal. Other Areas • The panel noted that there was no evidence to support injuries to the right upper limb, left upper limb, right shoulder, right wrist, right elbow, left elbow, left wrist, right lower limb, right leg, right knee, left lower limb, left leg or left knee causally related to the motor accident. • Additionally there were no reported ongoing symptoms in these areas nor any abnormality on physical examination. [Emphasis in original.]