Sadsad v NRMA Insurance Ltd

Judgment 1On 16 August 2012 the plaintiff was riding his bicycle in a roundabout when he was struck by a car. As a result of the collision he suffered a number of injuries. He seeks compensation from the first defendant which is the third party personal injury insurer of the driver of the vehicle. 2The claim is before the second defendant and there has arisen a "medical dispute" for the purposes of s 57 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). 3The third defendant is a medical assessor who provided a medical assessment dated 15 November 2013, in which he found that the plaintiff had suffered a 10% permanent impairment as a result of his injuries. The subject matter of the current litigation is the manner by which the third defendant came to conclude that the plaintiff's impairment was 10%. 4By further amended summons filed on 25 June 2014 the plaintiff seeks judicial review of the decision of the third defendant and, in particular, seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the whole of the certificate and statement of reasons issued by the second defendant is "void and of no effect". 5The fourth defendant is a "proper officer" employed by the second defendant. The fourth defendant made a decision on 20 January 2014 whereby an application under s 63 for a review of the medical assessment was refused. 6The plaintiff's summons also seeks a review of the decision of the fourth defendant. However, the parties agree that the substance of the case concerns the medical assessment and that it would follow from a quashing of the decision of the third defendant (or a declaration that it is void) that the decision of the fourth defendant would also be subject to similar orders. As it is, the plaintiff has addressed no substantive arguments in respect of the decision of the fourth defendant apart from that which flows from the assertion that the decision of the third defendant was fatally flawed. 7The second, third and fourth defendants have filed submitting appearances. 8The compensation scheme established under the Act has been subject to consideration in a number of cases and it is not necessary to set out the nature of that scheme in any detail. That task has been undertaken in other cases: see, for example, the analyses by Johnson J in Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 at [8]-[20] and by Hoeben J (as he then was) in Allianz Australia Insurance Ltd v Sprod [2011] NSWSC 1157 at [10]-[13]. 9However, to place the nature of the current dispute into context it is necessary to recall some of the features of the scheme. 10It is important to bear in mind the status of the medical assessment under the Act. Under s 61(2) a certificate of the kind currently under consideration is "conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor". A court may only reject such a certificate on the grounds of denial of procedural fairness and substantial injustice: s 61(4) - (6). Apart from the circumstances detailed in s 61(6) "a court may not substitute its own determination as to any medical assessment matter": s 61(7). This case has not reached, and may never reach, that stage. Rather the plaintiff seeks judicial review of the medical assessment by reference to a variety of forms of jurisdictional error by which it seeks the declaration in the summons. 11As I have said, the plaintiff unsuccessfully sought a review of the decision under s 63. 12Section 131 provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment is greater than 10%. In this case, the assessor found that the impairment is exactly 10% (and thus not greater than 10%). This demonstrates the significance of the medical assessment to the plaintiff's legal rights. He cannot obtain an award for non-economic loss. 13Because the decision and assessment affects the plaintiff's legal rights, it has been held in a number of cases that such an assessment, and similar decisions made by medical assessors, claims assessors and proper officers under the Act are amenable to judicial review: see, for example, Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [70]-[71], QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [5]-[6]. However, the nature of the judicial review is constrained and must not become a "merits review". The responsibility to undertake the medical assessment is cast upon the medical assessor, not upon this Court: see Rodger v De Gelder at [98]-[99] (Beazley JA) and [113] (Macfarlan JA), QBE Insurance (Australia) Ltd v Miller at [17] and [34]-[36] (Basten JA, Ward JA and Young AJA agreeing), Miles v Motor Accident Authority of NSW [2013] NSWSC 927; (2013) 84 NSWLR 632 at [38] (Hoeben CJ at CL), El-Kazzi v Allianz Australia [2014] NSWSC 927 at [8]-[11]. 14As I said in El-Kazzi v Allianz at [15], the significance of the decision and its importance to the plaintiff's legal rights does not affect the fact that the assessment is to be performed by the medical assessor and not by this Court. Nor can the Court enter into a subjective fact-finding exercise, an evaluation of the plaintiff's injuries, the merits of his claim or the factual correctness of the proper officer's decision. 15This was emphasised by counsel for the defendant and has been stressed in many cases of judicial review which have come before single judges of this Court and the Court of Appeal. 16It is also important to bear firmly in mind that it is not appropriate to parse the language of the medical assessor in the way that an appellate court might review the judgment of a single Judge. Nor is it appropriate to examine the reasons of the medical assessor with a critical eye attuned to error. See, for example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287. 17Other relevant provisions in the Act include s 61(9) which requires the certificate to set out the reasons for any finding made by the medical assessor as to any matter certified in the certificate. That provision can be read with clause 13.2 of the Medical Assessment Guidelines requiring the certificate to include written reasons for the determination in a form approved by the authority. 18The final legislative matter to note is that the Medical Assessment Guidelines and the Permanent Impairment Guidelines (MAA Guidelines) have the status of delegated legislation pursuant to s 44 of the Act. Where the guidelines are silent on an issue, the Guides to the Evaluation of Permanent Impairment (4th Edition) published by the American Medical Association (AMA 4 Guides) are to be followed: cl 1.2 MAA Guidelines. 19With that legislative scheme as the relevant legal backdrop, I turn to the decision made by the medical assessor and the reasons given for that decision. The dispute as presented to this Court is one within a very small compass. The plaintiff's case was referred to the third defendant by a referral letter dated 22 October 2013. The referral letter asked the assessor to consider a number of "injuries" as follows: (1)Right shoulder - soft tissue injury (2)Left shoulder - soft tissue injury (3)Right knee - soft tissue injury (4)Right ankle - soft tissue injury (5)Lumbar spine - soft tissue injury (6)Right hand - soft tissue injury (7)Left hand - soft tissue injury (8)Head - soft tissue injury (9)Cervical spine - soft tissue injury. 20The use of the term "injury" is somewhat misleading because the assessor, while finding various disabilities or physical ailments, was provided with no history of injury. In any event, none of those listed "injuries" are relevant to the present dispute except for the soft tissue injury occasioned to the plaintiff's right shoulder and, for reasons I will come to, the "soft tissue injury" to the plaintiff's left shoulder. The third defendant determined that the injuries to the left shoulder, right hand, left hand, head and cervical spine "WERE NOT caused by the motor accident". 21He also determined that the injuries to the right knee, right ankle and lumbosacral spine did not result in any whole person impairment ("WPI"). 22In relation to the right shoulder the third defendant determined that there was a "current 11% WPI". From the 11% he deducted 1% as a result of his examination and conclusions with respect to the left shoulder. That deduction resulted in a whole person in impairment of 10% which was entirely referable to the injury to the right shoulder. 23It is the method or manner by which he made the deduction and his application of the relevant medical assessment and permanent impairment guidelines which the plaintiff says demonstrates either jurisdictional error, error of law on the face of the record or both. 24The critical passage in the medical assessor's report and reasons is as follows: "Apportionment On the history given to me today - he does not suffer from any injury to the left shoulder. I did find some restriction in range of movement of the left shoulder which I must attribute to age-related changes. Hence, the right shoulder presentation should be apportioned such that 1% of it is attributable to age-related changes giving rise to 10% whole person attributable to the right shoulder. Pre-existing/subsequent impairment This is discussed in the paragraph immediately above full. Effects of treatment Treatment given to him is not in any way altering his whole person impairment. A Current % permanent impairment 11% B Pre-existing/subsequent % permanent impairment 1% C Adjustments % for effects of treatment 0% Final % permanent impairment 10%" 25The plaintiff complained that this passage contains both jurisdictional error and error of law on the face of the record. He says that the medical assessor misdirected himself as to the law and that the assessment did not comply with the relevant guidelines which, as I have said and as is agreed by the parties, have the status of delegated legislation. 26The relevant guideline is to be found in cl 2.5 of the permanent impairment guidelines published 1 October 2007. Clause 2.5 reads as follows: "2.5 If the contralateral uninjured joint has a less than average mobility, the impairment value(s) corresponding with the injured joint can serve as a baseline and are subtracted from the calculated impairment for the injured joint only if there is a reasonable expectation of the injured joint would have had similar findings to the uninjured joint before injury. The rationale for this decision should be explained in the impairment evaluation report." (Emphasis, bold font, in the original) 27That clause falls under chapter 2 of the permanent impairment guidelines which speaks of "upper extremity impairment". Clause 2.5 is in bold font. The significance of this is that cl 1.3 provides that "if the text is in bold, it is a directive as to how the assessment should be performed". 28At the hearing of the summons the plaintiff sought to place particular emphasis on the use of the word "apportionment". 29By reference to the use of the word "apportionment" and the other matters to which I will immediately turn, the plaintiff sought to assert that the third defendant had not applied cl 2.5 at all. I do not accept this submission. Nor do I accept that his use of the term "apportionment" suggests that the third defendant did not attempt to apply the provisions of cl 2.5. Whether he applied them correctly and in accordance with the law is a more difficult question. 30The plaintiff says that there are two components or ingredients to cl 2.5. The first is a determination of whether the contralateral uninjured joint (in this case the left shoulder) has "less than average mobility". It is only if that determination is made, that the "impairment value" of that joint can be used as a "baseline". The second component is whether there was a "reasonable expectation" that the injured joint (in this case, the right shoulder) "would have had a similar finding to the uninjured joint before the injury". The plaintiff submits that neither of these elements, or a consideration of them, is contained in the reasons of the medical assessor. The outcome of this case turns largely on whether that submission is accepted or rejected. 31The defendant contends that the reasons of the third defendant clearly engage cl 2.5 and properly apply that provision. It submits that the reasons are clear and that the attack undertaken by the plaintiff is, or involves, an unduly technical and overzealous critique of the reasons given by the medical assessor. It is submitted by the defendant that those reasons are clear and show the pathway of the third defendant's reasoning. The defendant says that what the assessor did is precisely what cl 2.5 required him to do. In so far as there are any steps missing in the pathway of reasoning the defendant says that the findings made are implicit in the reasons. It is submitted that the medical assessor was under no obligation to set out each and every step of reasoning provided the reasons were sufficiently clear for those affected by the decision, and those reviewing it, to understand the reasoning process involved. 32The missing steps which are (according to the defendant) implicit in the reasoning are (i) that the left shoulder had less than average mobility and (ii) that there was a reasonable expectation that the injured joint would have had similar findings as the uninjured joint before the injury. For reasons I will explain, another step implicit in the reasoning is that there were no possible causes for the impairment to the left shoulder other than either injury or age-related changes. 33A significant question in the case concerns the content of the requirement that a medical assessor must provide reasons. I have already identified the statutory requirements in s 61(9) and cl 13.2 of the MAA guidelines. Clause 2.5 imposes a further directive, which is that "the rationale for this decision [to deduct the impairment value of the contract lateral uninjured joint] should be explained in the impairment valuation report". 34These requirements for a medical assessor to give reasons can be contrasted with the requirement for a Proper Officer to give reasons in respects of decisions that he or she might make under the Act. For example, a Proper Officer is merely required to provide the parties with "brief written reasons" for a decision in relation to whether to order a further medical assessment: cl 14.8 MAA Guidelines. They can also be compared to the obligation to give reasons imposed on a claims assessor under cl 18.4 of the Claims Assessment Guidelines. A claims assessor must provide a certificate which sets out a number of specified matters but this can be done "as briefly as the circumstances of the assessment permits". 35Counsel for the defendant relied the decision of Hoeben J relating to cl 18.4 in Allianz v Sprod (supra) and in particular the passage at [24]: "The appropriate test when examining the reasons of an assessor is that of clarity. It has to be clear how the assessor reached his or her decision and what process of reasoning was involved. It is not however that each step in that reasoning process be enunciated if it is otherwise clear how the assessor arrived at his or her conclusion." 36Counsel for the defendant relied on this decision to contend for a test of "clarity". Senior Counsel for the plaintiff referred me to the fact that Allianz v Sprod was subject to a successful appeal. In Allianz Australia Insurance Limited v Sprod [2012] NSWCA 281 Barrett JA (with whom Campbell JA and Sackville AJA agreed) said: "22. The primary judge held that it was "implicit and obvious" from the assessor's reasons that he proceeded on the basis that Mr Sprod, if uninjured, would have continued to earn at the rate of $1,000 net per week and that there was a finding of a "real chance" that he might lose his job. The judge then said that the assessor had, by way of "evaluative decision", decided that a loss of $250 net per week represented the value of that chance. 23. Allianz challenges the primary judge's decision on the basis of erroneous approach to the s 126 obligations of an assessor. It is said that the judge erred in holding that the test of the lawfulness of an assessor's reasons is one of clarity, with no need to enunciate steps in reasoning if the process is otherwise clear and no need for specific and detailed findings; also that it was an error to treat the assessor's approach as if it were a "buffer" determination when not so expressed and to approach the compliance question as if the case were like or akin to a "buffer" case. 24. Allianz maintains that the case under review was not in truth one of "buffer" award. Having regard to [42] of the assessor's decision set out at [4] above, it is said that it was in truth a case of articulated calculation and that, once the process of calculation had been undertaken, it was incumbent upon the assessor to state, in a manner apposite to the calculation, the assumptions regarding future earning capacity on which the award was based." 37In terms of the factual circumstances there under consideration, Barrett JA concluded: "31. In the present case, the assessor made and articulated a calculation. He referred to the following matters under the "Future economic loss" heading: 1.Mr Sprod was concerned about losing his job because he is the only light duties worker in his section and is worried that a pallet system may be introduced, leaving very little for him to do and increasing his chances of losing his job. 2.As a forklift driver, Mr Sprod will be expected to do physical work during times when he is not operating a forklift. His impaired capacity for lifting may therefore be taken to emphasise the precariousness of the employment. 3.Mr Sprod will, for these reasons, be at a disadvantage in the labour market, particularly in light of the fact that he has only ever done manual work. 4.Bearing in mind the "present high earnings", it was "appropriate" to allow $250 net per week for future economic loss. 32. The calculation was then set out at [42] of the assessor's reasons. It showed clearly enough that the assessor had adopted an expected residue of working life of 18.3 years and a discount for vicissitudes of 15% (hence the 0.85 multiplier). 33. There is no explicit explanation of why a residual working life of 18.3 years was chosen or, more precisely, what assumption was made in that respect (this is an aspect of Allianz's complaint that there was no articulated assumption as to when Mr Sprod was likely to lose his job or as to the degree of likelihood). Nor is there any reference to the assumption that gave rise to the allowance of 15% for vicissitudes. These are matters that may not call for particular elaboration or explanation. A brief statement of what might seem to be reasonably obvious may well suffice. 34. More significantly, there was no statement by the assessor of the assumption or assumptions underlying the figure of $250 net per week as lost earnings for the balance of the working life. All that was said on that is that the $250 figure had been struck "bearing in mind the Claimant's present high earnings". This was apparently a reference back to the amount of approximately $1,000 net per week referred to at [36] of the assessor's reasons." 38His Honour concluded at [37] that there was "a failure of the assessor to engage with and perform the tasks prescribed by section 126". However, his Honour made it clear at [42] that there was no requirement for assessors to "prepare elaborate statements of reasons and explanation of assumptions". 39Counsel for the defendant also placed heavy reliance on the well known statement in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang (supra) at 271-272: "When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic. In that case, a full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints of judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin: 'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'" [References and citations omitted] See also Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84 at 94-95 (Sackville J), Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] (Handley AJA), and Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [121]-[122] (Basten JA). 40Senior counsel for the plaintiff relied on the fact that the expression "less than average mobility" was not an expression deployed elsewhere in the Act or Guidelines. It was submitted that the third defendant merely transposed the finding that he made with respect to the restriction of movement in the left shoulder which presented as a 1% WPI in circumstances where the two expressions (less than average mobility and whole person impairment) are not necessarily the same. The plaintiff says that the approach was flawed and that the reasoning was not exposed. At the risk of oversimplifying the process, the basis of the assessment of 1% WPI can be seen by following the clinical finding of a 30% loss of extension in the left arm (Court Book, 26) which converts to a WPI of 1% by reference to Figure 38 and Table 3 of the AMA 4 Guidelines (page 20ff). 41The plaintiff also submitted that there was no explanation as to the basis of the conclusion that the changes to the left shoulder could only be age-related and that it was "reasonably to be expected" that both shoulders would have a similar, naturally occurring or age related, lack of mobility. 42The question is whether the reasons disclosed the pathway of reasoning by which the third defendant applied cl 2.5. The High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 described the standard required of a written statement of reasons given by a medical panel under analogous legislation in Victoria. It said at [55]: "The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion." 43In Frost v Kourouche [2014] NSWCA 39 Basten JA (at [2]) and Leeming JA (at [40]) considered the statutory scheme under consideration in Wingfoot v Kocak to be substantially similar to the legislation under which the plaintiff's case is to be determined. 44In the course of argument I asked counsel for the defendant whether there were only two possible causes (injury or age related) for the kind of loss of mobility or impairment present in the left shoulder of the plaintiff. Counsel indicated that he did not know because he was not a doctor. However, he conceded that there may be other possible causes. For example it was said the person may be "inherently unusually inflexible". 45It is important to know whether there are more than two possible causes. If the only possible causes are age-related and injury related the assessment report and its meaning is clear. The defendant says that it is implicit in the report that the only possible explanation for the loss of movement in the left shoulder, in the absence of injury, was the result of age-related changes. 46I am not satisfied that it is necessarily implicit in the reasoning of the third defendant that there are only two such possible causes. If one assumes the correct application of cl 2.5 and works backwards, it is perhaps necessarily implied. However, in my opinion the pathway of reasoning is not clear. As an objective reader of the report, I do not know the rationale behind the third defendant's determination that he "must" attribute the loss of movement in the left shoulder as age-related changes. I simply do not know how the third defendant came to the conclusion (assuming that he did) that there was a reasonable expectation that both joints would have had similar findings before the injury. 47It is one thing to give a "beneficial construction" to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law (in this case cl 2.5). This accords with the approach taken by Stone J in SZCBT v Minister for Immigration and Multicultrual Affairs [2007] FCA 9 at [26]: "The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked." 48Further, while to "fulfil a minimum legal standard, the reasons need not be extensive", "where more than one conclusion is open, it will be necessary for the [decision maker] to give some explanation of its preference for one conclusion over another": Campbelltown City Counsel v Vegan (supra) at [121]-[122] (Basten JA). 49Counsel for the defendant referred to the fact that the evidence showed that the plaintiff was right-handed but what can be concluded from that - in terms of a loss of flexion or extension in the shoulder joint - is a matter of pure speculation for those not medically trained. Nothing in the medical assessment sheds any light on the relevance of the plaintiff's right-handedness. It may be that the plaintiff's right-handedness is relevant in some way but this is not disclosed in the assessor's certificate or reasons. 50I am also satisfied that the plaintiff has established that if the third defendant was acting on the assumption that WPI of 1% is the same thing as a 1% less than average mobility, that assumption and its basis should have been contained in the explanation of the rationale of the decision. 51I accept that not every step of the reasoning process needs to be explained explicitly, but in this case I am left not knowing from the report precisely what steps the third defendant took in arriving at his conclusion, what assumptions were made and the basis of any such assumptions. 52I am fortified in this view by the fact that the requirement to give reasons in the Act and Guidelines is supplemented by the "directive" in cl 2.5 itself which requires that the "rationale for the decision should be explained". 53It may be that the plaintiff's success here is a Pyrrhic one. It may be that all that needs to be done is for the third defendant or another assessor to explain the rationale behind the conclusion expressed in the report and to expose his pathway of reasoning. However, until that is done, neither the plaintiff nor others reading the report can be sure that the directive in cl 2.5 of the permanent assessment guidelines has been complied with in accordance with the law. 54The defendant did not suggest that declaratory relief was inappropriate if jurisdictional error and/or error of law on the face of the record was established. Accordingly, I am of the opinion that the relief sought in the summons should be granted. 55I make the following orders: (1)A declaration that the whole of the Certificate and Statement of Reasons issued by the Second Defendant, and constituted by the Third Defendant, on 15 November 2013 is void and of no effect. (2)A declaration that the whole of the Statement of Reasons issued by the Fourth Defendant on 20 January 2014 is void and of no effect. (3)The first defendant is to pay the plaintiffs costs.