Tongi v Insurance Australia Limited t/as NRMA Insurance

Judicial Review

1. Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) governs judicial review proceedings in this court. The various requirements of Pt 59 have been complied with, including the filing of the summons within three months of the decision under review (r 59.10).
2. The High Court said the following about judicial review in Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [23]-[25]: "23. It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff's challenge to the validity of the Delegate's decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate's decision. In particular, judicial review is concerned with whether the Delegate's decision was one which he was authorised to make; it is not: 'an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.' 24. First, the burden is upon the plaintiff to demonstrate that the Delegate's decision was affected by jurisdictional error. The plaintiff must show that the approach adopted by the Delegate 'manifest[ed] a legally erroneous view as to what it was about which [he] needed to be satisfied', so that the Delegate lacked legal authority to make the decision that was made. 25. It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, 'jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power'; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is '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'."
3. As noted above, the request for a review of the medical assessment was made pursuant to s 7.26. Subsection (5) states: "The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application."
4. The predecessor to the Motor Accident Injuries Act 2017 was the Motor Accidents Compensation Act 1999 (the MACA). Section 63 of the MACA was in similar terms to s 7.26. In Meeuwissen v Boden [2010] NSWCA 253, Basten JA said the following about s 63, from [18]: "18 The phrase "in a material respect" is imprecise. It undoubtedly can mean that "the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different": Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 353 (Mason CJ). On the other hand, it can refer to the process by which the outcome was achieved. The latter approach may be more likely, if the body determining the nature of the error is not itself required or permitted to vary the outcome. There are various considerations in s 63 which suggest that the latter view is to be preferred. 19 First, what must be incorrect in a material respect is "the medical assessment" and not the certificate which results from the assessment. The subject matter of a medical assessment is a "medical dispute": s 63(1). A "medical dispute" is defined to mean "a disagreement or issue to which this Part applies": s 57. The Part applies to a disagreement about one of the matters (referred to as "medical assessment matters") set out in s 58(1). These include whether the degree of permanent impairment is greater than 10%: s 58(1)(d). The end result of a medical assessment is a certificate as to a medical assessment matter: s 61(1). In this context, to describe a medical assessment as incorrect in a material respect does not necessarily require that the certificate would, or might, have been different, absent the error. 20 Secondly, and consistently with the first reason, the phrase "in a material respect" is less precise than "capable of having a material effect on the outcome of the previous assessment", being the language of s 62(1A). While it is true that this subsection was added with effect from 1 October 2008, it is significant that the legislature declined to adopt the same language as existed in s 63(3). Further, although the same amending Act varied s 63, it did not vary s 63(3): see Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 (NSW). 21 Thirdly, the power conferred on the proper authority is not discretionary, once the requisite state of satisfaction is achieved. Thus, once satisfied as to the relevant matter, the proper officer "is to" arrange for the application to be referred: s 63(3). 22 Fourthly, the matter as to which the proper officer is to be satisfied, is not that the medical assessment was incorrect in a material respect, but only that "there is reasonable cause to suspect" that it was. This language is inconsistent with the proper officer being expected (let alone required) to carry out an assessment or calculation, as opposed to identifying possible error. 23 Fifthly, and following from the last point, where there is doubt as to the extent of the power of an administrative officer, the nature of the power itself must be taken into account. The power under s 63 is that of a gatekeeper, not a decision-maker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted. Where a construction is available which would allow a full and proper assessment to occur, in place of a flawed assessment, that construction should be preferred. 24 Finally, the role of the review panel is not limited to a review of "that aspect of the assessment" affected by possible error. Rather, the panel is to reconsider all of the matters in dispute: s 63(3A). This approach no doubt reflects the difficulty in some cases of dividing an assessment of permanent impairment into aliquot parts. More importantly, it may be seen to reflect an intention that a flawed process is to be cured, so that a proper assessment has been made of the whole of the matters in dispute."

The plaintiff's case

1. The plaintiff submitted: "The root cause of the errors committed by the Presidents Delegate arise from his failure to address errors made by the Medical Assessor in the first instance."
2. The plaintiff submitted that the errors that had been committed by the Medical Assessor concerned the manner in which the plaintiff's asserted lower back injury was assessed. The plaintiff submitted that instead of considering causation "from the perspective of whether it was a consequential injury/condition" the assessor only dealt with the injury on the basis that it was not directly caused by the accident. The Medical Assessor stated: "If she had an injury to her lower back at the accident she would have complained about the lower back to her GP, the doctors in Mount Druitt or Nepean Hospital in the first week or two. This was not the case as there was no mention that she had any complaints of low back pain in the clinical records of Plumpton Medical Centre in the six months after the accident. As evident from the above contemporaneous medical evidence, Ms Tongi had no complaint in her lower back [Lumbar spine] after the subject accident. Her low back pain appeared in March/April 2023. Based on the above contemporaneous medical evidence I concluded that she did not sustain any injury to her lower back causally related to the subject accident."
3. The plaintiff submitted that there was evidence before the Medical Assessor from a Dr Poplawski which supported a causal link between the accident and the plaintiff's lower back pain. The Medical Assessor did refer to the report of this doctor dated 23 March 2022 and observed: "Dr Poplawski consider (sic) her low back pain being aggravated by the gait she had to adopt due to the right ankle fracture."
4. Dr Poplawski's report is actually dated 23 February 2022 and in respect of the plaintiff's lower back states: "She required several surgeries to reconstruct her foot and, judging from her description, a subtalar arthrodesis. This has resulted in consequential problems of standing and walking, with her abnormal gait resulting in aggravation of pre-existing, but previously well settled, problems in the lower back as outlined in the body of my report."
5. The Medical Assessor thus seems to have taken an approach that required a direct injury to the lower back in the motor vehicle accident and excluded the possibility of the plaintiff's ongoing lower back complaints as being referable, or caused by, the accident in consequence of the direct injury to her foot. The Medical Assessor does not seem to have considered any aggravation to the plaintiff's lower back condition; rather he has taken the simplistic approach of 'she didn't hurt her back in the accident therefore any complaints of low back pain were not caused by the accident.'
6. In Rodger v De Gelder [2015] NSWCA 211, Gleeson JA said of the assessment in that case, at [109]: "Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. 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 under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. 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, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ)."
7. In my view the Medical Assessor, adopting the words used in De Gelder, failed to respond to a substantial argument based on evidence relied upon by the plaintiff as to the causation of her lumbar spine injury by the motor accident.
8. I agree with the plaintiff's submission that the Medical Assessor's treatment of causation was wrong.
9. This error was put to the Delegate who noted that: "8. Essentially, the claimant's submission is that the Assessor failed to consider the evidence that supported a consequential injury to the claimant's lumbar spine following the issues with respect to the claimants right foot and ankle as a result of the motor accident. 9. In support of this submission, the claimant refers to the report of Dr Poplawski dated 23 February 2022 which was before the Assessor and marked A1. 10. It is asserted that the Assessor either failed to properly consider the opinion of Dr Poplawski (with respect to the consequential injury to the lumbar spine), or unduly focused on the proximity of the injury and thereby erred in applying the common law test for causation."
10. The Delegate then goes on to say that "nowhere in the claimant's review application submissions is it asserted that the argument of consequential lumbar spine injury (or the Nguyen principal) was ever put before Assessor Chan."
11. The submissions however specifically note that the Medical Assessor was aware of and noted Dr Poplawski's report which has the specific reference to the consequential injury. I find it somewhat disingenuous for the Delegate to have made the above comment in the light of the Medical Assessor's specific reference to Dr Poplawski's report.
12. While I would not go so far as to agree with the plaintiff's submission that the Delegate "acted as a protagonist" there is some weight in the submission of an unwarranted justification of the Medical Assessor's error concerning causation.
13. I think it follows that the Delegate committed jurisdictional error in his treatment of the Medical Assessor's findings.
14. The plaintiff's written submissions consider a number of other asserted grounds for judicial review. I do not think I need to consider them, not just because the matter has been determined by my findings above, but also because the other grounds seemed to me to be extensions or variations of the initial error that the Delegate did not recognise, and therefore did not deal with. The obvious error that had been made by the Medical Assessor is his treatment of causation of the low back injury.
15. Once that error was identified, as it should have been, then consistent with Meeuwissen, the matter should have been referred to a Review Panel. I will therefore return the matter to the second defendant.

Orders 1. The decision of the second defendant's Delegate dated 31 October 2023 declining to refer the application for review to a review panel, is set aside. 2. The matter is remitted to the Personal Injury Commission of New South Wales for reconsideration of the decision required by s 7.26 of the Motor Injuries Act 2017 (NSW) in accordance with the law. 3. No order is made as to the costs of the proceedings.

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