Samir Haris v AAI Limited

Catchwords

[2009] NSWSC 881 Allianz Australia Insurance Ltd v Mackenzie (2014) 66 MVR 124[2014] NSWSC 67 Allianz Australia Insurance Ltd v Sprod (2011) 59 MVR 250[2011] NSWSC 1157 Allianz Australia Insurance Ltd v Ward (2010) 79 NSWLR 657[2010] NSWSC 720 Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) (2012) 223 IR 86[2012] NSWCA 208 Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 Bugat v Fox (2014) 67 MVR 150[2014] NSWSC 888 Campbelltown City Council v Vegan (2006) 67 NSWLR 372[2006] NSWCA 284 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393[2010] NSWCA 190 Coote v Kelly [2013] NSWCA 357 Craig v State of South Australia [1995] HCA 58(1995) 184 CLR 163 De Gelder v Rodger (No 2) (2014) 68 MVR 340[2014] NSWSC 1355 Kirk v Industrial Relations Commission (NSW)Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531[2010] HCA 1 Martin v Kelly [2008] NSWSC 577 McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609[2008] NSWCA 163 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123[2009] HCA 39 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Judgment (23 paragraphs)

[1]

Background

Mr Haris was born in January 1982. On 27 March 2009, he was injured in a motor vehicle accident. In that accident, he claimed that he suffered injuries to his lumbar spine, left lower limb, right lower limb and abdomen (gastrointestinal) in addition to a psychological reaction in the form of an adjustment disorder with depressed and anxious mood. Mr Haris' claim, and the administrative process in respect of it, is governed by the Motor Accidents Compensation Act 1999 (NSW) ("the Act") and the MAA Permanent Impairment Guidelines ("the Guidelines") issued by the MAA.
Under the Act, common law rights to damages for non economic loss for injuries caused by motor accidents were significantly modified from that which previously applied under the common law. Section 131 prohibits the awarding of damages for non economic loss unless the degree of whole person impairment ("WPI") of the injured person is greater than 10%. The Act also requires that any dispute about whether the WPI meets the s 131 threshold is to be resolved by an assessment.
As the parties could not agree as to whether or not Mr Haris' WPI was greater than 10%, a medical assessment pursuant to s 60 of the Act was carried out, with the following injuries to be assessed: "1. Back/Lumbar spine - L4/5 and L5/S1 disc narrowing of the L4/5 and L5/S1 intervertebral discs. L3/4 disc desiccation and broad based disc protrusion. L5/S1 disc desiccation and right central disc protrusion abutting S1 nerve root. 2. Left lower limb - nerve root impingement. 3. Right lower limb - nerve root impingement. 4. Abdominal (gastro) - constipation and nausea."
The assessment concluded that Mr Haris' lower limb and abdominal injuries resulted from the lumbar spine injury. Consequently, whether or not causation could be established for the lumbar spine injury was, as described by Senior Counsel for AAI, the "main ticket item".
On 11 November 2013, Dr Long, the Medical Assessment Service Assessor ("the MAS Assessor") determined that Mr Haris had 11% WPI caused by the motor accident. AAI applied for a review of the MAS Assessor's decision. A delegate of the Proper Officer ("the Proper Officer's Delegate") referred the matter to a Medical Review Panel ("the Review Panel"). The Review Panel determined that Mr Haris' injuries were not caused by the motor accident, and consequently assessed him as having 0% WPI.
Three decisions have been made. First, the initial WPI determination by the MAS Assessor, secondly, the referral by the Proper Officer's Delegate, and finally, the second WPI determination by the Review Panel. Mr Haris applies for a review of the decisions made by the Delegate of the Proper Officer and the Review Panel. It is necessary to refer briefly to all three decisions, as well as the statutory framework under which they were made.

[2]

The relevant statutory framework

Under clause 1.20 of the Guidelines, an assessment by a medical assessor of the degree of WPI involves three stages. They are: "(i) A review of medical and hospital records including: - all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and - diagnostic findings from all available relevant investigations. (ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and (iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced."
An assessor must also give reasons for their decision pursuant to s 61(9) of the Act: "61 Status of medical assessments … (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence."
Under s 58(1)(d) of the Act, an assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. An assessment of permanent impairment arising from an injury without a finding as to whether that injury was or was not caused by the subject motor accident has no statutory basis or function: see Motor Accidents Authority of New South Wales v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [61].
Section 58(1)(d) requires an assessor to determine causation by the application of the legal notion of causation: see Allianz Australia Insurance Ltd v Mackenzie (2014) 66 MVR 124; [2014] NSWSC 67. It is necessary to refer to the Guidelines. The Guidelines may be characterised as delegated legislation under s 44(1)(c) of the Act: see Ackling v QBE Insurance (Australia) Ltd (2009) 75 NSWLR 482; [2009] NSWSC 881 at [83].

[3]

Guidelines

Clauses 1.7, 1.8, 1.9, 1.33, 1.34, 1.35 and 1.36 of the Guidelines read: "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 judgement. 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. … Pre-existing impairment 1.33 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of pre-existing symptomatic permanent impairment, then its possible presence should be ignored. 1.34 The capacity of an assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides page 10, "For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments". Refer to 7.18 for the approach to a pre-existing psychiatric impairment. 1.35 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor vehicle accident. Subsequent injuries 1.36 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region its value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is no objective evidence of the subsequent impairment its possible presence should be ignored." (Emphasis in original)

[4]

Judicial review generally

Mr Haris relies on s 69 of the Supreme Court Act which provides that this Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari.
The supervisory jurisdiction of this Court under s 69 can be invoked with respect to the exercise of statutory powers and the conduct of statutory procedures, whether or not the person to whom any orders equivalent to the prerogative writs are to be directed is a public officer: Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [3].
In Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ set out an inclusive definition of jurisdictional error at 179: "…If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
Therefore, if the Review Panel or the Proper Officer's Delegate have asked themselves the "wrong question", they have fallen into jurisdictional error. Furthermore, while the application of the wrong test as to causation might be more properly described as an error on the face of the record, there is no necessary dichotomy between jurisdictional error and error of law on the face of the record, and the same error may satisfy both descriptions: Owen v Motor Accidents Authority at [40].
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Hayne J characterised a failure to ensure procedural fairness as a jurisdictional error, at [169]: "[169] …it is important to recognise that the duty to accord procedural fairness (no matter whether founded in the common law or in implication from statute) is a fetter upon the lawful exercise of power. The decision maker may affect the rights of the party who seeks the issue of a writ if and only if that party is accorded procedural fairness. That is, putting the matter in terms of jurisdiction, the authority to decide is an authority which may be exercised only if procedural fairness is extended."

[5]

The grounds of judicial review

The grounds of review are:
In respect of the determination of the Proper Officer's Delegate: • That she applied the incorrect test under s 63 of the Act in referring the decision to the Review Panel as there was not "reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application". In respect of the determination of the Review Panel: • That it applied the incorrect test in determining causation under s 58(1)(d) of the Act by: • Failing to take into account a relevant consideration when determining causation, namely, the oral evidence of Mr Haris, which contained an explanation as to why he delayed reporting his injury to a medical professional; • Failing to properly exercise its clinical examination function in respect of causation by failing to make an inquiry of Mr Haris as to why he delayed reporting his inquiry to a medical professional; and • That it denied Mr Haris procedural fairness by failing to inform him that his explanation was not going to be accepted.

[6]

(1) The MAS Assessor's reasons

In compliance with clause 1.20, the MAS Assessor conducted an interview and clinical examination with Mr Haris and reviewed his medical and hospital records in order to make a determination about his WPI. The MAS Assessor issued a certificate and provided written reasons. It is necessary to briefly refer to the MAS Assessor's reasons.
On 25 October 2013, the MAS Assessor conducted an interview and clinical examination, took a detailed history from Mr Haris, reviewed the medical records, drew conclusions and made a determination of Mr Haris' WPI. The MAS Assessor reported that Mr Haris had no previous history or symptoms related to his back, lower extremities or abdomen.
Mr Haris left school after completing Year 9 and undertook a TAFE course. He undertook multiple jobs, including three years at Blue and White Delivery, operating a forklift and sorting packages. Following his eye injury in 2000, he was off work for a prolonged period suffering with depression. In 2007, he commenced a contract run with ZR Express Transport Pty Limited, which he operated for about four years until he was involved in the motor accident. Since then, he has not been able to work due to his ongoing symptoms. He receives a disability pension.
The MAS Assessor then outlined the history of the motor accident, as related to him by Mr Haris: "History of the Motor Accident Occurred 27 March 2009 as he was operating his carrier work and driving a 1-tonne van. His vehicle collided with a car, facing the street, which unexpectedly drove from the driveway into his path. Following the collision he was able to park his vehicle and was 'shocked, shaken and unable to drive'."
The symptoms and treatment following Mr Haris' accident were detailed: "History of Symptoms and Treatment Following the Motor Accident An ambulance attended, but he refused their offer to take him to hospital. He drove, with the tow truck driver, to Taren Point, where he knew IIMI were stationed. He was then picked up and driven home. He lay down throughout the day, noting severe pain in the right lower back. His wife applied Deep Heat to this region. He resumed work the next day in spite of his ongoing pain, as he was concerned about his family and income. Approximately two months following the injury, the pain increased in severity, associated with radiation into the posterior aspect of his right leg. Five sessions of physiotherapy were of no benefit. He continued working and again, had more sessions of physiotherapy. By 2010 his back pain had further increased together with the radiation down the posterior right leg, extending to his foot. He was aware of numbness in the posterior thigh and occasionally on the anterior aspect of the right thigh. He saw his own doctor and further x-rays were obtained, including CT and MRIs and he was referred to Dr Ashish Diwan, Orthopaedic Surgeon, who suggested a two year trial of conservative management, including regular analgesic and spinal injections under x-ray control. The first of these injections was helpful, but the subsequent six injections were of little overall benefit and his symptoms increased in severity. He was referred to a Pain Management Specialist, Dr David Gorman, with minimal symptomatic relief. Because of his symptoms, it was necessary to cease work in January 2011." (My emphasis added).

[7]

Review of medical documents

The MAS Assessor reviewed the relevant documentation. He highlighted that between 11 April 2009 and 3 August 2009, Mr Haris had seen his general practitioner, Dr Daniel, several times about back pain but that he never mentioned the motor accident. The MAS Assessor noted: "… that the claimant saw Dr Daniel on 11 April 2009 without record being made of the motor vehicle accident on 27 March 2009. Thereafter, multiple consultations were undertaken without mention by the doctor in his records of back problems until 3 August 2009. … Samar Haris stated to me he was involved in a collision with another motor vehicle. … At the time of the initial assessment Samar was treated as a chronic low back pain as no mention of the MWA was made."
The MAS Assessor noted that on 25 August 2009, Mr Haris first presented to Core Physiotherapy with a history of right low thoracic pain and central lumbar pain.
The opinions of three different orthopaedic surgeons were then summarised: The letter from Associate Professor Papantoniou to Dr Daniel, who said that Mr Haris had experienced lower back pain, but that that pain: "does not radiate anywhere other than his back …" In his report dated 1 May 2012, Dr Bye said: "I do not believe that the disability related to the back is a consequence of the motor vehicle accident. There is a long gap since the motor vehicle accident and the onset of the backache. Normally one would anticipate any injury would develop within the first 24 hours following the motor vehicle accident." The notes of Dr Bodel, recorded that Mr Haris "gives no history of any other accident or injury… therefore there does appear to be a causal link between that abnormal appearance… the clinical findings… and the motor vehicle accident". The following comments of Dr Bodel were set out by the MAS Assessor: "This gentleman has pars intra-articularis defects at the lumbosacral junction which were apparently asymptomatic at the time of the injury. In part therefore this injury is an aggravation of that pre-existing pathology…[Mr Haris had a] DRE Lumbosacral Category III level of assessable impairment… There is evidence of radiculopathy in the right leg and this attracts a 10% Whole Person Impairment. There is no other rateable pathology."

[8]

Determination

The MAS Assessor assessed Mr Haris as having severe lumbar back pain with radiculopathy, as defined in the Guidelines. He assessed Mr Haris' WPI as being 11%, with 10% WPI arising from the lumbar spine injury, 1% from the gastrointestinal injuries and 0% from the lower limb injuries. The MAS Assessor determined that Mr Haris physical injuries were caused by the motor accident. He set out his reasoning as follows: "6 Conclusions Diagnosis and Causation … In spite of the congenital pars intra-articularis defects and the degenerative changes of his intervertebral discs and facet joints, there was no previous history of injury or symptoms related to his back prior to the motor accident of 27 March 2009. Following the motor accident, the claimant indicates he had low back pain, which was tolerable and he was able to work. As it increased in severity he sought help from a physiotherapist and there was a delay of months (3 August 2009) before he notified his general practitioner and then, at that stage, failed to mention the motor vehicle accident. He indicated that this delay and claim through MAA was because of his ignorance of the process (possibly because of similar ignorance he did not receive compensation and/or claim for compensation following the blinding of his left eye at a football match when a firework injured his left eye). However, based on the clear history, causation of his back pain and subsequent and increasing events affecting both legs is determined as fully attributable to the motor vehicle accident of 27 March 2009."
On 4 November 2013, the MAS Assessor issued a certificate certifying that Mr Haris' injuries gave rise to a WPI which was greater than 10%.

[9]

(2) The reasons and determination of the Proper Officer's Delegate

On 19 December 2013, AAI lodged an application for a review of the MAS Assessor's decision which was considered by the Proper Officer's Delegate.
Pursuant to s 63(3) of the Act the Proper Officer's Delegate was required to determine whether there was "reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application". Mr Haris did not agree that a review was warranted and addressed the issues raised by AAI. The Proper Officer's Delegate in her reasons for decision summarised those submissions as follows at [6] to [8]: "6 The applicant submits Assessor Long incorrectly determined that the claimant's back problems were caused by the subject accident. The applicant refers to the fact that the claimant failed to tell his GP about the alleged cause of his back problems until 5 months after the subject accident. 7 The applicant submits that the claimant did not seek further treatment for his back until June 2011 and notes that Dr Diwan records a major episode with his back in early July 2011 and there is also a report to Centrelink of a recent onset of back problems in August 2011. 8 The respondent submits that the applicant's submissions as to the alleged error in respect to causation are not correct. It is further submitted by the respondent that on the basis of the history obtained by Assessor Long, there was material and evidence from which it was open to the Assessor to reach his determination that the injuries were sustained in the subject accident."
The Proper Officer's Delegate noted at [9] that: "9 … the claimant's first consultation with his GP after the subject accident on 27 March 2009, was 11 April 2009 and no mention was made of a motor vehicle accident nor reports of back pain. Nor was there any mention of back pain at the consultations recorded on 16 April 2009 and 30 June 2009. The first mention of back pain in the GP's clinical notes was on 3 August 2009, which notes 'for back pain assessment'."
The Proper Officer's Delegate concluded that she was "satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect". She outlined her reasoning at [10] as: "10 … There is a long gap of just over 4 months between the subject accident and the report of back pain to his GP, and there is no further reference to the claimant's back in the multiple consultations recorded in the GP's notes, until 28 April 2011."

[10]

Did the Proper Officer's Delegate apply the incorrect test under s 63?

Senior Counsel for Mr Haris submitted that the statement of reasons issued by the MAA, constituted by the Proper Officer's Delegate, on 10 February 2014 contains both jurisdictional error and error on the face of the record. Mr Haris submitted that the Proper Officer's Delegate should not have referred the matter to the Review Panel since the matters raised by AAI in its application did not meet that statutory threshold under s 63.
AAI's response to this argument was that the statutory threshold under s 63 is one that is not difficult to satisfy, due to the fact that a delegate of the Proper Officer is not a medical specialist and only plays a "gatekeeper" role in MAA assessments. AAI's submitted that in this case, the Proper Officer's Delegate comfortably met that threshold, and referred to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [40], where the High Court cited Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2014] HCA 32 at [38] where Gummow and Hayne JJ stated: "[38] … The critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. …"
Senior Counsel for AAI submitted that the Proper Officer's Delegate was entitled to have reasonable cause to suspect that Dr Long was incorrect in his conclusion as to causation of Mr Haris' lumbar spine injury, based upon the delay by Mr Haris in consulting his general practitioner and the absence of any reference to a motor accident in any document for more than two years after the accident occurred. The crux of AAI's submission was that it was unlikely in these circumstances that Mr Haris could, as put by Senior Counsel, "even come close" to establishing that the Proper Officer's Delegate acted "irrationally" and "illogically" when making her decision to refer the matter to the Review Panel.
Given my determination in relation to the decision of the Review Panel, which I will refer to later in this judgment, it is not necessary for me to determine this issue.

[11]

(3) The reasons and decision of the Review Panel

On 2 April 2014, the Review Panel conducted a fresh WPI assessment and some of its reasons are briefly set out here.

[12]

Interview and clinical examination

As to the interview and clinical examination it was required to conduct under clause 1.20 of the Guidelines, the Review Panel said at [1] and [3]: "1 Review Details … C Documentation and Other Material Reviewed All Panel members confirmed that they had received and considered the following documentation: 1. The original assessment certificate issued by Assessor Long. … 7. The certificate, including the reasons of Assessor Anderson dated 8 November 2013. 3 Matters Considered and Decided by the Panel The Review Panel considered afresh all aspects of the assessment under review. A Evidence Considered The Panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary because the examination findings of Assessor Long were not in dispute and there was sufficient medical evidence to decide causation of injuries from the motor accident. "(My emphasis added).
No further mention of the interview and clinical examination was made by the Review Panel in its reasons.

[13]

Review of the medical documents

The majority of the remainder of the report is a "review of the contemporaneous medical documents to assess causation". The medical records are referred to in detail by the Review Panel, highlighting the temporal gap in between the date of the accident and the date that a complaint of back pain was first recorded by a general practitioner. The Review Panel pointed to that documentary evidence as being probative of a lack of contemporaneous evidence of back pain resulting from the accident.
The Review Panel noted that Mr Haris' personal injury claim form was dated 19 October 2011, more than 2½ years after the motor accident, and attached the medical certificate of Dr Daniel dated 13 October 2011, also 2½ years after the motor accident. It then reviewed the issue of causation for each injury.

[14]

(1) Lumbar spine injury

The Review Panel summarised its consideration of the medical documents relating to the spine as follows: "The clinical notes of Drs Hanan & Ramez Daniel from 2 August 2008 were reviewed. • A consultation on 11 April 2009, two weeks after the motor accident for acute bronchitis. No mention was made of the motor accident and no back pain reported. • Further consultations on 16 April 2009 and 30 June 2009 were also for non-injury related matters and no mention was made of the motor accident or back pain. • The first consultation with a mention of back pain was on 3 August 2009, some 4.5 months after the accident. The clinical notes state: 'for back pain assessment'. There is no mention of a motor accident. • A further 10 consultations from 13 November 2009 to 11 April 2011 were for general medical conditions and no mention was made of a motor accident or back pain. • The next mention of back pain was on 28 April 2011, more than 2 years after the motor accident. Again no mention is made of the motor accident. • A review of the medications prescribed by the practice revealed no analgesic medications until June 2011, more than 2 years after the motor accident. Correspondence from Michael Turner, Core Physiotherapy to Dr Daniel dated 25 August 2009 stating that he had first seen Mr Haris on 21 July 2009 with a history of right low thoracic and central lumbar pain. No mention was made of a motor accident. It was noted that physiotherapy was arranged under Medicare. The clinical notes of Core Physiotherapy dated 21 July 2009. The history taken was of back pain which commenced 2 months previously and lasted 2-3 weeks. It then recurred but was gone on the day of assessment. The panel noted again that there was no mention of the motor accident and the earliest report of pain was still 2 months after the motor accident. The medical report of Dr Diwan dated 13 July 2011 which states 'He states that he has had recurrent episodes of back pain over the years; however one major episode was about 2 weeks ago associated with right thigh and leg pain'. There is no mention of a back injury from a motor accident. Centrelink Employment Services Assessment Report dated 9 August 2011. This was a face to face assessment at Centrelink Rockdale and states: (back pain). Recent onset of back pain requiring x-ray investigation and specialist intervention."
Referring to documents above, the Review Panel concluded at page 5 that: "The panel concluded there was insufficient contemporaneous evidence to support an injury to the lumbar spine causally related to the motor accident." (My emphasis added).

[15]

(2) Left lower limb and right lower limb injuries

The Review Panel noted that there was: "No contemporaneous medical evidence of a discrete injury to either lower limb causally related to the motor accident. There was in 2011 a diagnosis of referred pain to the lower limbs from his lumbar spine but this is not a separate injury to his lower limbs and would normally be assessed as part of the lumbar spine The panel concluded that there was no evidence to support an injury to the lumbar spine causally related to the motor accident." (My emphasis added)
Again, there was no reference in that reasoning to any of Mr Haris' oral evidence about his limbs, whether it was considered and if it was rejected. No explanation was provided.
So far as the abdominal injuries were concerned, the Review Panel concluded that: "There was no evidence to support an injury to the gastrointestinal system either directly or indirectly related to the motor accident." (My emphasis added)

[16]

Determination of Review Panel

Based on its review of the contemporaneous medical documents, the Review Panel concluded that "Nil injuries related to the motor accident". Since causation was not established, the Review Panel assessed Mr Haris' WPI in relation to the accident as being 0%. Under s 63(4) of the Act it revoked the certificate issued by the MAS Assessor. A new certificate was issued on 10 April 2014 declaring that Mr Haris' WPI was not greater than 10%.
The Review Panel made an alternate determination. That is, contrary to its first determination, that if causation had been established, Mr Haris' WPI would have been 5%. It found that the MAS Assessor had erred in concluding that the symptoms Mr Haris complained of in his lower limbs amounted to radiculopathy arising from his lumbar spine injury. The Review Panel stated (at pp 6 and 7): "The second issue concerning the diagnosis of radiculopathy was examined by the panel even though it would not alter the outcome. The criteria required for a diagnosis of radiculopathy (for assessment purposes) are set out in paragraph 4.28 of the MAA Permanent Impairment Guidelines (1 October 2007). They are: To conclude that a radiculopathy is present two or more of the following signs should be found: 1. Loss or asymmetry of reflexes 2. Positive sciatic nerve root tension signs 3. Muscle atrophy and/or decreased limb circumference 4. Muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution 5. Reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution From Assessor Long's examination findings the panel noted the following: • There was no recorded loss or asymmetry of reflexes • Straight leg rising was only possible to 10 degrees bilaterally with discomfort in the posterior left and right thighs. The panel agreed that posterior thigh discomfort did not fulfil the definition of a positive nerve root tension sign. • No muscle atrophy was noted. • Muscle weakness was difficult to assess due to variable response (inconsistency). • Diminished sensation over the posterior aspect of both thighs which the panel agreed was not consistent with either an L5 or an S1 nerve root distribution. The panel concluded that even if the lumbar spine injury had been accepted that the injury would not have been assessed at greater than DRE II."
On the alternative basis, the Review Panel was of the opinion that the absence of radiculopathy put Mr Haris' lumbar spine injury, regardless of causation, in Category DRE II, assessing it at 5% WPI rather than the 10% WPI assessed by the MAS Assessor.

[17]

Judicial review of the decision of the Review Panel

Mr Haris' seeks judicial review of the Review Panel's decision on two grounds. Firstly, that the Review Panel erred in its approach to causation under s 58(1)(d) of the Act, and secondly, that the Review Panel denied Mr Haris procedural fairness by failing to make any inquiry of him as to why there was a temporal gap in between the motor accident and when he sought medical treatment for the injuries that were allegedly caused by it.

[18]

Did the Review Panel apply the incorrect test in determining causation?

Senior Counsel for Mr Haris submitted that the decision on causation appears to have been made solely on the basis of a lack of contemporaneous documentary records concerning the motor vehicle accident. Rather, Mr Haris says that the Review Panel focused too heavily on the documentary evidence without giving an explanation for rejecting the relevant oral evidence, and by so doing, erred.
In Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 at [31], [32] and [34] Hulme AJ stated, that to treat the absence of contemporaneous documentary records as determinative can be an error justifying a remedy in the nature of judicial review: "[31] One of the pivotal questions for the Panel was whether the injuries of which the Plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the Plaintiff's claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the Plaintiff's statements which the Certificate discloses were made to the Panel to the effect that at the time of the accident she suffered 'pain in her neck going out to both shoulders'. [32] While I accept that, as an administrative decision maker, the Panel's reasons should not be subjected to 'minute and detailed textual criticism in the hope of finding something on which to base an argument' - Allianz Australia Insurance Limited v Motor Accident Authority of NSW (2006) 47 MVR 46; [2006] NSWSC 1096 at [36] - in expressing themselves the way they have, the Panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record. … [34] In arriving at the conclusion I have, I do not ignore the fact that earlier the Certificate records that the Panel had considered what would seem to have amounted to all of the documents. However, that is not an answer to their error in, on the question of causation, apparently putting to one side any documents or evidence that was not contemporaneous."
Senior Counsel for Mr Haris' main argument was that the Review Panel failed to take into account a relevant consideration when determining causation. Specifically, if the absence of a history of a motor accident in the 13 week period after the accident was relevant to the determination of causation, then the Review Panel had an obligation to consider the evidence concerning Mr Haris' explanation for the lack of mention of injury in that period.

[19]

Consideration

A decision maker's reasons need to set out the actual path of reasoning by which the decision maker arrived at the opinion the [decision maker] actually formed for itself: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 88 ALJR 52; [2013] HCA 43 at [48]. In identifying that actual path of reasoning, the reasons as actually stated are to be understood as recording the steps that were in fact taken in arriving at that result: see Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 per Hayne J at [130].
The starting point is in the context that a decision maker's reasons are 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: see (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-282). While to fulfil a minimum legal standard, the reasons need not be extensive, where more than one conclusion is open, it is necessary for a decision maker to give some explanation of its preference for one conclusion over another: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]-[122].
In De Gelder v Rodger (No 2) (2014) 68 MVR 340; [2014] NSWSC 1355, Hamill J highlighted at [38]: "[38] … there are limits to the proposition that an administrative decision maker's reasons should be construed beneficially. Stone J in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] said: '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.'"

[20]

Did the Review Panel deny Mr Haris procedural fairness?

As I have already decided that the Review Panel fell into jurisdictional error. It is not necessary for me to determine whether the Review Panel denied Mr Haris procedural fairness.

[21]

Whether it is futile to grant relief

The Review Panel made an alternate decision, on the basis that it accepted that Mr Haris' lumbar spine injury was caused by the motor vehicle accident. The Review Panel stated that the MAS Assessor erred in concluding that the symptoms Mr Haris complained of in his lower limbs amounted to radiculopathy arising from his lumbar spine injury. According to the Review Panel, the absence of radiculopathy means that the injury gives rise to only 5% WPI. Senior Counsel for AAI said that even if the 1% WPI arising from the alleged abdominal injury is added, the total WPI is only 6%, which is insufficient to entitle Mr Haris to damages for non economic loss.
Consequently, AAI's submission was that any error on the part of the Review Panel regarding causation would be immaterial, because even if the matter was reassessed and causation was determined in Mr Haris' favour, since the same insufficient WPI degree would be determined, such an exercise would be futile.
In oral submissions, Senior Counsel for AAI stated that if the opinion of the Court was that the matter should be sent back for re-assessment, it would be impractical to set aside the whole of the assessment. Only the issue of causation needed to be redetermined. Upon reassessment of causation, he submitted, a fresh certificate could be issued with the correct causation conclusion, but with the previously assessed degree of WPI still present.
Mr Haris' response was that firstly, to have the same review panel for reassessment would be unusual and unlikely, and secondly, that it is not possible to say that another review panel would produce a different result in respect of the radiculopathy point. So far as the first submission is concerned, whether the same Review Panel conducts the review is a matter for the Motor Accidents Authority.
Further, in relation to AAI's proposition that the only part of the assessment affected by error, namely causation, should be re-assessed, while on the face of it, that might be seen as a practical approach, with much to commend it, I am not persuaded that this is an available course. It is appropriate to refer here to Hidden J's comments in Allianz Australia Insurance Ltd v Ward (2010) 79 NSWLR 657; [2010] NSWSC 720 from [70] to [73]: "Any remedy other than setting aside the certificate? … [70] … Section 94(4) of the MAC Act requires a claims assessor to issue a certificate as to an assessment. Separate provision is made in subs (5) for the attachment to the certificate of a brief statement of the assessor's reasons. If the conditions set out in s 95(2) are met, an insurer becomes liable to pay 'the amount of damages specified in the certificate'. Accordingly, it is the certificate which founds the insurer's obligation, and the certificate specifies the amount of damages assessed as a single, global figure. [71] If the assessment of the amount specified in the certificate is affected by jurisdictional error, the certificate must be set aside and the court cannot divide the amount specified into those parts which are valid and those which are not. As Mr Robinson put it, it is 'an organic whole and not divisible'. [72] The situation is analogous to that considered by Kirby P, with whom the other members of the court agreed, in Anderson v Judges of District Court NSW (1992) 27 NSWLR 701 at 712-3. Under review in that case was the order of a District Court judge, on appeal against a summary conviction, confirming the conviction, the penalty imposed and an order for forfeiture of a sum of money. The court held that the forfeiture order was invalid. However, after an examination of s 125 of the Justices Act 1902, dealing with the power of the District Court to dispose of such an appeal, it was held that the District Court judge's order was indivisible, that the confirmation of the forfeiture order could not be severed from it, and that the whole order must be set aside. [73] So it is in the present case. The certificate must be set aside and the matter remitted for re-assessment generally. That said, I trust that the parties would take a practical approach to the new assessment and, by agreement, limit the matters which would need to be revisited … ."

[22]

Result

For the reasons given earlier in my judgment, the decision of the Review Panel is infected with jurisdictional error. The certificate and decision of the Review Panel dated 10 April 2014 should be quashed.
Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed. The Court declares that: (1) The decision and certificate issued by the Review Panel in matter number 2013/02/2532 issued on 10 April 2014 is vitiated by jurisdictional error. The Court makes an order that: (2) An order in the nature of certiorari removing into the Court the Certificate and decision of the Review Panel dated 10 April 2014 in matter number 2013/02/2532 and quashing that decision. The Court further orders that: (3) Matter number 2013/02/2532 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law. (4) AAI is to pay the Mr Haris' costs as agreed or assessed.

[23]

Amendments 01 April 2015 - Paragraph [86] line 1 - the words "for rejection" deleted 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: 01 April 2015

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