Transport Accident Commission (Vic) v Kaddour

Supreme Court of NSW|2019-12-05|Before: Basten J, Mr J

Solicitors: Carroll & O'Dea (Plaintiff) JP Law Solicitors (First Defendant) Crown Solicitor for New South Wales (Second, Third, Fourth and Fifth Defendants) File Number(s): 2019/163290

Judgment

BASTEN J: The plaintiff in these proceedings, the Transport Accident Commission of Victoria ("the Commission"), is the insurer of a vehicle which collided with a vehicle driven by Rania Kaddour ("the claimant"). The accident occurred on 3 September 2016. The claimant lodged a claim for damages with respect to injuries suffered in the collision, including psychological consequences.
In these proceedings the Commission seeks judicial review of a certificate issued by a Review Panel of the Medical Assessment Service dated 26 February 2019. The issue to be determined by the Review Panel was whether the degree of permanent impairment of the claimant resulting from the injury caused by the motor accident was greater than 10%. The Panel certified that it was. The Commission seeks to have that certification set aside.

Procedural context

Pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW) ("the Compensation Act"), no damages can be awarded for non-economic loss unless the injuries sustained resulted in a degree of permanent impairment greater than 10%. The Compensation Act further provides that, in the event of a dispute as to that fact, the court may not award such damages unless the degree of permanent impairment has been the subject of medical assessment. [1] It appears to have been accepted that the claimant's physical injuries did not result in permanent impairment. There was a dispute as to the extent of any psychological injuries suffered as a result of the accident. The question whether the degree of permanent impairment was greater than 10% constituted a "medical dispute", which was referred for assessment by an appropriate medical assessor. [2]
On 6 July 2018 an assessor certified that the psychiatric injury gave rise to a permanent impairment which was not greater than 10%. In particular, his assessment of the impairment was 4%, having reduced the overall assessment of 8% by half, to allow for the consequences of a fall down some steps, which occurred on 20 September 2016, 17 days after the motor vehicle accident, and was not causally related to the accident.
The Compensation Act provides a right of review of a medical assessment: s 63. The claimant sought a review. Her application was referred by a "proper officer" of the State Insurance Regulatory Authority ("the Authority") to a Review Panel.
On 26 February 2019 the Review Panel issued a certificate with respect to an injury identified as "major depressive disorder with anxious distress", concluding that the whole person impairment due to that injury was greater than 10%. The part of the certificate headed "Reasons" identified the level of impairment assessed by the Panel as 15%.
The Commission sought judicial review of that certificate. The only legal effect of the certificate was to open the gateway for a claim for non-economic loss; a court considering such a claim was not bound to award any amount, nor, if it did award damages, was it bound to calculate damages for non-economic loss in accordance with that assessment. [3] Thus the grant of the certificate did not finally determine any legal right or interest for the claimant; however, it may be said to have removed the Commission's immunity from suit for such a claim. No issue was raised in this case as to the power to quash a certificate which removed a bar to a particular aspect of a claim. [4]

Grounds of review

The summons commencing the proceedings was issued on 24 May 2019. The original summons contained one ground (identified in five paragraphs). The ground was that, the Review Panel having sought copies of clinical records of the claimant's psychiatric history which were not provided, the assessment undertaken by the Review Panel in the absence of those records "constituted administrative error on the part of the Review Panel."
There may be different ways of formulating the standard grounds of review, but, however expressed, they must identify either (i) errors of law on the face of the record of the decision-maker, or (ii) jurisdictional error on the part of the decision-maker. It is not possible to fit "administrative error" within either of those categories. The summons was susceptible to summary dismissal, but no such application was made.
The amended summons, filed on 3 July 2019 and thus out of time, [5] contained grounds identified in nine paragraphs, of which par 9 had 14 sub-paragraphs. The form of the grounds was discursive and did not comply with the requirement that the grounds be identified "with specificity". [6] Failure to do so is apt to lead to confusion, the raising of unwarranted submissions and the admission of irrelevant evidence. The Court of Appeal has commented upon this issue in the past. [7]
Paragraphs 1-6 of the grounds set out the procedural history of the matter. Ground 7 alleged that there were "a number of jurisdictional errors and/or errors of law on the face of the record" which were set out below. Paragraph 8 alleged that the Panel "constructively failed to exercise its statutory power in making the assessment decision". The specific errors were set out in paragraph 9, but most of the 14 subparagraphs did not allege a relevant error.
A written summary of argument filed on behalf of the Commission focused on three errors, broadly identified. In oral argument, senior counsel abandoned all grounds by one, being procedural unfairness. However, that ground was articulated in two ways, reflected in the following sub-paragraphs of par 9 in the amended summons: "vii. Further the Medical Review Panel erred in law in proceeding to carry out its assessment of the First Defendant's whole person impairment when they did not have the First Defendant's medical records sought by them in their letter of 7 November 2018. … xi. Further in the circumstances the Medical Review Panel did not afford the Plaintiff procedural fairness in that it did not give the Plaintiff the opportunity to consider their submissions to the Medical Review Panel once it decided to review the First Defendant and issue a certificate as to her level of whole person impairment without having before it the records it sought of the First Defendant's pre and post motor accident psychiatric history."

Duty to obtain required documentation

It is difficult to identify with clarity the error of law said to arise because the Panel, having sought medical records from the parties which were not provided, proceeded to undertake its review without the documents. The first step in addressing the claim is to set out the background said to create the duty.

(a) factual background

On 30 October 2018 the proper officer of the Authority advised the Commission (and presumably the claimant) that the matter had been referred to a Review Panel, giving the constitution of the Panel. The letter noted that there would be an initial telephone conference between the members on 7 November 2018. The letter continued: "At this teleconference the Panel may: • reach a decision, • decide that an examination of the claimant is required in order to make a decision, • decide that additional information is required in order to make a decision and/or • decide that a further conference of the Panel is required in order to make a decision."
On 7 November 2018 the proper officer sent a further letter to the Commission advising that the Panel had determined that an examination of the claimant was required and would be held on 5 February 2019. The letter continued: "The Panel requires the following information to assist it in making a decision: • clinical records from Mr Medhat Metry from 2012 to current date, • updated GP records from 15 September 2017 to current date, • updated treating psychiatry records from March 2018 to current date, • TAFE records, including the modules completed and attendance records." The letter required that the information be provided by 30 January 2019.
Thereafter, there was correspondence between the Commission, the solicitors for the claimant and the Authority. The Commission wished to know why it, and not the claimant, was required to provide the claimant's medical records. (The Authority said it had written to both parties seeking the records.) The claimant's solicitors said, in effect, that they were happy for the Commission to obtain the records and enclosed authorities from the claimant to allow that to happen. They also sent letters themselves to Mr Metry, a psychologist whom the claimant had consulted some years before the motor vehicle accident.
In the event, the records of the claimant's general practitioner were obtained and provided to the Review Panel; no other records were obtained. On 27 December 2018 the Commission enclosed the updated medical records from the general practitioner; neither then nor later did the Commission write to the Authority suggesting that the examination should not go ahead on 5 February 2019 as planned by the Review Panel, nor that the Panel should not determine the review application until it had obtained the outstanding records.

(b) legal basis of duty

Against that factual background, it is necessary to identify error of law on the part of the Review Panel in proceeding with its examination of the claimant and its further assessment of her level of permanent impairment without that material.
As senior counsel for the claimant contended, the Commission had to identify some statutory basis for asserting that in proceeding without the additional documentation, the Panel contravened some legal obligation. No provision was identified which would support such a contention.
Rather, the duty was said to flow from cl 1.18 of the Permanent Impairment Guidelines issued by the Authority under s 44(1)(c) of the Compensation Act. The Commission asserted that the Guidelines "have the status of delegated legislation". Reference was made to the decision of the Court of Appeal in Trazivuk v Motor Accidents Authority (NSW). [8] It is true that Trazivuk referred to earlier decisions where the medical guidelines had been "characterised as delegated legislation", [9] however, Giles JA further stated that the status of the relevant clause in the Guidelines "need not be decided." [10] It is clear that Trazivuk is not authority for that proposition. Of the cases referred to by Giles JA, only one, Ryan v Watkins [11] would be binding on this Court. Neither from the passage identified, nor generally, does it appear that any real consideration was given to this question, although for reasons which are not explained, the Guidelines were described as "Australian law" for the purposes of the Evidence Act 1995 (NSW).
By contrast, as explained by Leeming JA in Ali v AAI Ltd, careful attention must be given to the statutory authority for guidelines promulgated by the Authority under ss 44 and 69 of the Compensation Act. [12] Leeming JA rejected the view that the Guidelines were to be equated with "delegated legislation"; they are better characterised as "soft law". [13] That is not to say that they are irrelevant in judicial review proceedings, but it makes them an implausible source of legal duties.
In any event the Guidelines, in their terms, provide no basis for the supposed duty: under the heading "Evaluation of impairment" they state: "1.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment: … 1.18 An assessment of the degree of permanent impairment involves three stages: 1.18.1 a review and evaluation of all the available evidence including: • medical evidence (doctors' hospitals' and other health practitioners' notes, records and reports) • medico-legal reports • diagnostic findings • other relevant evidence. …" The references in each paragraph to "the available evidence" is inadequate to impose an obligation on an assessor or the Panel to search for, or require others to search for, evidence which has not been provided by the parties and is not in the possession of the parties.
When it was put to counsel that, if the argument were correct, the assessor's certificate must also be invalid, the assessor's position was distinguished on the basis that the assessor had not required the parties to produce any documentation.
That submission cannot be accepted. The Review Panel clearly wished to have before it all the available evidence, including evidence falling within the categories which were directly identified from the submissions made by the parties and particularly by the Commission. The act of making the request (and at least in legal terms it was no more than that) did not impose a duty on the Panel not to proceed further until the documentation had been produced.
Accepting for present purposes that the Medical Assessment Guidelines promulgated under s 44 are not legally binding, it is nevertheless significant that the Guidelines address the temporal elements of a review in the following passages: "Review Panel Assessment 16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the Panel was convened …. … 16.24 Within 20 days of the final meeting of the Panel, and in any case within 60 days of the initial meeting, the Panel shall issue its determination …. … 16.26 The Review Panel is to act as expeditiously as practicable in the circumstances."
The Review Panel may have thought it desirable to have the documentation it sought: indeed, it said that it "requires" the documentation. Nevertheless, it had no mechanism for obtaining the documentation compulsorily, nor did the claimant, nor the Commission. Further, the temporal guidelines indicated a degree of expedition required of the Review Panel which would be inconsistent with the Review Panel delaying while, for example - not this case - the parties squabbled over what documents should or should not be produced. The Panel did not in fact comply with the temporal guideline to produce its determination within 60 days of 7 November: it took almost twice that period. Nevertheless, it could not be suggested that the determination was invalid for that reason. What can be suggested, however, is that there is nothing in the statute which requires the Review Panel to delay if there is documentation which it seeks but which it does not have before it.
The nature of a medical assessment and the function of medical assessors (addressed in some little detail by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [14] in discussing the scope of the reasons required to be given by a medical panel [15] ) are inconsistent with the proposition that there is some implied constraint upon the conduct of a medical assessment in the absence of all the records which might be thought helpful in undertaking an examination of a person or an assessment of their level of impairment. Neither the assessor, nor the consultant psychiatrists who provided the parties with expert reports, insisted on having other documentation before completing their medical assessments.
There was imprecision in the terms of the proposed duty. Did it extend to all extant documents fitting the descriptions in the request? If so, how would the Panel know what documents existed? Was it limited to documents in the possession of the parties? If so, there was no evidence to suggest any such document was withheld. Did it extend to documents which could be obtained by reasonable steps taken by the parties? If so, was there also a duty to inquire as to what steps had been taken? In any event there was no basis for the Panel (or the Court) to conclude that all reasonably available documents had not been obtained and provided to the Panel.
The Commission conceded the absence of compulsive powers available to the parties to obtain information for the purpose of proceedings before a medical assessor or a review panel. Nor was it suggested that a medical assessor or a review panel had such powers. It was, however, noted that a claims assessor had power to give a direction to a third party requiring that person to produce specified documents in the possession of that person, being documents that the assessor considers relevant to the assessment of the claim concerned. [16] It is an offence not to comply with such a direction. [17]
This possibility was not raised at any stage of the proceedings prior to the hearing in this Court. There is no evidence that the Commission proposed such an exercise to the proper officer or the Review Panel. In any event, it is implausible that the power conferred on a different officer under s 100 could carry with it an implication that the medical assessment process is an inquisitorial proceeding involving a statutory obligation on an assessor or a Review Panel to obtain documents (or possibly other information) considered "necessary" in order to complete the assessment process.
Two further points may be noted, which tend to militate against any relevant inference being drawn in relation to a medical assessment. First, as counsel accepted, to invoke the power it would be necessary to have the claim referred to a claims assessor for assessment. Yet nowhere in the statute is there any hint that such a course is either possible or required. Secondly, the claims assessor has no responsibility for the determination of medical disputes; rather, that officer's function is identified in s 94 in the following terms: 94 Assessment of claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award). (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages.
Although it is not necessary to reach a concluded view on this matter, it is arguable that the powers conferred on a claims assessor under s 100 can only properly be invoked in aid of the function of a claims assessment under Pt 4.4, Div 2 (which contains s 94). On that approach, it would be a misuse of the powers in s 100 to apply them with respect to a medical assessment.
Furthermore, it is tolerably clear that the powers conferred on a claims assessor by s 100 do not carry with them, generally, a duty to exercise the powers. So much appears from s 94(2) which requires that an assessment be made having regard to "such information as is conveniently available to a claims assessor". That language is inconsistent with a power carrying an implication of a duty to seek out possible information not supplied by the parties. [18] In s 100, "may" does not mean "must". [19]
At its highest, any implied statutory duty would be limited to considering whether there were steps which should be taken in order to obtain relevant information, so far as that was reasonably practicable. For several reasons, a duty in those terms was not shown to have been breached.
First, the Review Panel did consider the issue; it arranged for a letter to be sent to the parties requesting them to obtain identified categories of documentation. Secondly, while it took that step in ignorance of whether any such documentation was available, it was not shown that any further steps had to be considered when documentation was not forthcoming. Thirdly, the Commission did not invite the Panel to take any further steps. Fourthly, it was not demonstrated that there was any documentation to be obtained. The last point can be expanded upon.
Notice of the assessment of 6 July 2018 was sent under cover of a letter of 12 July. Within the prescribed 30 day period, a review application was filed by the claimant, on 7 August 2018. Attached to the review application was the certificate of the assessor and written submissions in support of the review. The Commission filed a response. The period between the date of the first assessment and the first meeting of the Review Panel was therefore four months. The records of the general practitioner were obtained and provided to the Review Panel, the records claiming to be complete as at 10 December 2018. Since September, there had been consultations on four occasions for pain in the back, in the lower ribcage and in the upper quadrant of the abdomen. There was no documentary evidence of any psychological or psychiatric treatment or assessment since the review by the assessor.
The other category of documentation sought but not obtained comprised records of the psychologist, Mr Metry, who had seen the claimant and treated her prior to the accident. That material was not before the assessor, or it would have been before the Review Panel. The inevitable inference from the evidence before this Court is that either there was no documentation kept by Mr Metry, or he was not willing to provide it voluntarily. There were three pieces of evidence which demonstrated that fact. First, the Commission had itself sought the documentation prior to the first assessment, by letter dated 3 April 2018. [20] No response was received. The Commission wrote again on 12 November 2018, again without success. [21] The solicitor for the claimant also wrote to Mr Metry on 17 April 2018 and on 5 February 2019 seeking clinical records. [22] He received no reply.
It may thus be seen that any attempt to identify a duty of the kind proposed by the Commission must fail, both at the points of formulation and breach.

Procedural unfairness

The claim of procedural unfairness, as expanded in the Commission's submissions, related to the procedural step taken by the Review Panel in proceeding to make its assessment without the additional documents.
Again, it is difficult to articulate the legal basis of the complaint. Relevantly for present purposes, the Commission had to establish that some step had been taken based on material adverse to its interests which it had not had an opportunity to counter. Alternatively, it contended that the Authority it held an "expectation" that the Panel would not proceed until the documentation was provided or it had a further opportunity to take some step, which opportunity was not accorded.
As to the first approach (that it was denied an opportunity to take steps to counter adverse material), the only issue is whether it wished to present material to the Authority, but did not do so. Nowhere in the correspondence did the Commission assert that it sought such an opportunity; nor did it ever suggest that the Panel could not or should not proceed to determine the review until it had been able to put relevant material before the Panel. On the contrary, the thrust of the Commission's claim in this Court is that it was the Panel which wanted the documents, which the Commission did not have, and was not able to obtain.
The Commission's letter to the Authority forwarding the updated records of the claimant's general practitioner said nothing about any other records, nor the timeframe within which the determination of the review might occur. The Commission was given precise information as to the timing of the review (being longer than that which might have been suggested by the Guidelines - no doubt to accommodate the holiday period), a period which was not at any stage diminished. The gravamen of procedural unfairness is the denial of an opportunity to answer adverse material. There was no such denial in the present case.
Although the Commission asserted it had suffered "practical injustice ", that phrase, as used by Gleeson CJ in Lam, [23] was a rejection of the suggestion that any denial of an opportunity to present a case invalidated the result. In this case, the Commission has failed to establish the first step, being denial of an opportunity.
The second limb (an expectation held by the Commission) requires attention to any representations made by the Authority which may have caused the Commission not to take steps it would otherwise have taken, in the absence of any legal duty not to proceed with its determination. Again, it is hard to articulate a basis for the argument. As noted above, the Commission was informed on 30 October 2018 that the Review Panel might determine the review at its initial conference on 7 November 2018 at 4.30pm. Knowing that fact, the Commission took no objection to that possible course of events.
The second letter, of 7 November, indicated that information was to be supplied, if available, by 30 January and that the determination would await an examination of the claimant on 5 February 2019. The Commission could not have been misled by anything said by the Authority in this or any other correspondence. Nor is there any evidence that it was misled.
Although counsel submitted that the Commission had an "expectation" that further steps would be taken, there was no evidence of any expectation, the content of the expectation, nor identification of its basis. As Gleeson CJ said in Lam: "[34] … But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed."
The Commission has not been shown to have been denied any opportunity to put forward its case to the Review Panel. The claim of procedural unfairness is untenable and must be rejected.

Conclusions

It follows that the Commission has presented no tenable argument that the Review Panel committed any form of jurisdictional error, or error of law which appears on the face of the record being, specifically, the reasons of the Review Panel. The only available course was to dismiss the proceedings with costs.
At the conclusion of the hearing the Court made the following orders: 1. Dismiss the amended summons filed by the Transport Accident Commission of Victoria on 3 July 2019. 2. Order that the Transport Accident Commission of Victoria pay the costs of the first defendant on the usual basis and the costs of the other defendants on a submitting basis.

Endnotes

Compensation Act, s 132(1).
Compensation Act, ss 58(1)(d) and 60.
Cf Compensation Act, s 61(2).
See generally Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44.
Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 59.10(1).
UCPR, r 59.4(c).
Ali v AAI Ltd [2016] NSWCA 110; 175 MVR 502 at [33].
[2010] NSWCA 287; 57 MVR 9.
Trazivuk at [31] (Giles JA).
Trazivuk at [34].
[2005] NSWCA 426 at [134].
Ali at [80]-[99].
G Weeks, Soft Law and Public Authorities - Remedies and Reform (2016, Hart Publishing); M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Law Book Co), [3.240], [3.270].
(2013) 252 CLR 480; [2013] HCA 43.
Wingfoot at [42]-[63].
Compensation Act, s 100(1A).
Compensation Act, s 100(2).
Cf Julius v Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC).
Cf Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134 (Windeyer J); [1971] HCA 12.
Affidavit, Jelena Prodanovic, 6 November 2019, par 4.
Affidavit, Jelena Prodanovic, 21 June 2019, par 16.
Affidavit, John Patrick Purkiss, 29 November 2019, pars 4 and 7.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6. 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: 06 December 2019

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