Samir Haris v AAI Limited

1. [1]

   HER HONOUR: This is an application for judicial review of two decisions, one of a Medical Appeal Panel and one of a Proper Officer of the Medical Assessment Service.

2. [2]

   By summons filed 11 July 2014, Samir Haris seeks a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Certificate and Statement of Reasons issued by the second defendant on 11 April 2014 and constituted by the third defendant is void and of no effect, as well as a declaration pursuant to s 69 of the Supreme Court Act that the whole of the Statement of Reasons issued by the second defendant on 18 February 2014 and constituted by the fourth defendant is void and of no effect.

3. [3]

   The plaintiff is Samir Haris (“Mr Haris”). The first defendant is AAI Limited (“AAI”). The second defendant is the Motor Accidents Authority of New South Wales (“the MAA”). The third defendant is a Medical Review Panel comprising Assessors Mark Burns, Erik Eriksen and Paul Meyers (“the Review Panel”). The fourth defendant is Janet Ashpole, Proper Officer of the Medical Assessment Service (“the Proper Officer’s Delegate”). The second, third and fourth defendants have filed submitting appearances.

4. [4]

   Mr Haris relied on the affidavit of his solicitor Jelena Prodanovic affirmed 5 September 2014.

Background

1. [5]

   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.

2. [6]

   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.

3. [7]

   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:

4. [8]

   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”.

5. [9]

   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.

6. [10]

   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.

The relevant statutory framework

1. [11]

   Under clause 1.20 of the Guidelines, an assessment by a medical assessor of the degree of WPI involves three stages. They are:

2. [12]

   An assessor must also give reasons for their decision pursuant to s 61(9) of the Act:

3. [13]

   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].

4. [14]

   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].

Guidelines

1. [15]

   Clauses 1.7, 1.8, 1.9, 1.33, 1.34, 1.35 and 1.36 of the Guidelines read:

2. [16]

   In Ackling, Johnson J stated at [87] that in undertaking the task of assessing whether an injury was caused by the relevant accident an assessor will derive practical assistance from clauses 1.7 to 1.9 of the Guidelines. These Guidelines must be read in conjunction with s 5D of the Civil Liability Act 2002 (NSW), which relevantly reads:

3. [17]

   In Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650, Campbell J set out clauses 1.7 to 1.9 of the Guidelines and had this to say about causation at [27]:

4. [18]

   The decision of a MAS Assessor can be reviewed under s 63 of the Act. Section 63 relevantly reads:

5. [19]

   If the matter is referred to a review panel, that panel is required to consider afresh all aspects of the assessment under review under s 63 of the Act: see McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163. Accordingly, it is obliged to conduct a new three stage assessment of the degree of WPI (outlined above in clause 1.20 of the Guidelines) and give reasons for its decision under s 61(9) of the Act.

Judicial review generally

1. [20]

   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.

2. [21]

   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].

3. [22]

   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:

4. [23]

   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].

5. [24]

   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]:

6. [25]

   See also Area Concrete Pumping Pty Ltd v Inspector Barry Childs (WorkCover) (2012) 223 IR 86; [2012] NSWCA 208, where Basten JA said at [76]:

7. [26]

   In relation to a judicial review of an assessment by a claims assessor under the Act, Hoeben J stated in Allianz Australia Insurance Ltd v Sprod (2011) 59 MVR 250; [2011] NSWSC 1157 at [27]:

8. [27]

   In Martin v Kelly [2008] NSWSC 577 Johnson J at [17] discussed the confines of judicial review and said:

9. [28]

   See also 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 where the High Court discussed jurisdictional error in Australia at [71]-[77].

The grounds of judicial review

1. [29]

   The grounds of review are:

2. [30]

   In respect of the determination of the Proper Officer’s Delegate:

(1) The MAS Assessor’s reasons

1. [31]

   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.

2. [32]

   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.

3. [33]

   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.

4. [34]

   The MAS Assessor then outlined the history of the motor accident, as related to him by Mr Haris:

5. [35]

   The symptoms and treatment following Mr Haris’ accident were detailed:

6. [36]

   The MAS Assessor outlined Mr Haris’ current symptoms as constant, severe lower right sided lumbar back pain and persisting numbness on the posterior aspect of both thighs and the right lower leg. He also noted that occasionally Mr Haris “remains confined to bed for up to four days”. Mr Haris’ walking, standing, bending, kneeling, squatting and sitting capacity were all noted as limited. Driving was noted as limited to 10 minutes and his sleep poor. At the time of the assessment, Mr Haris continued to take a significant amount of medication daily including OxyContin, Endone, Lyrica, Mobic, Cymbalta, Largatcil, Nexium and Maxolon.

7. [37]

   The MAS Assessor made the following comments about Mr Haris’ clinical examination:

8. [38]

   When examining the lumbar spine, the MAS Assessor noted that Mr Haris had marked restriction of movement and “was reluctant to undertake any flexion, lateral movement and extension all of which caused pain”. There was marked lumbar paravertebral muscular guarding and spasm. Mr Haris indicated that movement sent spasms down the posterior aspect of his left leg, and also to a lesser extent, his right leg. Straight leg raising was only possible to 10 degrees and caused discomfort. There was diminished sensation in both thighs. Regarding Mr Haris’ consistency of presentation the MAS Assessor said:

Review of medical documents

1. [39]

   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:

2. [40]

   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.

3. [41]

   The opinions of three different orthopaedic surgeons were then summarised:

Determination

1. [42]

   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:

2. [43]

   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%.

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

1. [44]

   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.

2. [45]

   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]:

3. [46]

   The Proper Officer’s Delegate noted at [9] that:

4. [47]

   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:

5. [48]

   On 18 February 2014, the Proper Officer’s Delegate referred the matter to the Review Panel.

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

1. [49]

   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.

2. [50]

   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:

3. [51]

   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.

4. [52]

   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.

(3) The reasons and decision of the Review Panel

1. [53]

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

Interview and clinical examination

1. [54]

   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]:

2. [55]

   No further mention of the interview and clinical examination was made by the Review Panel in its reasons.

Review of the medical documents

1. [56]

   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.

2. [57]

   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.

(1) Lumbar spine injury

1. [58]

   The Review Panel summarised its consideration of the medical documents relating to the spine as follows:

2. [59]

   Referring to documents above, the Review Panel concluded at page 5 that:

3. [60]

   No reference was made to the explanation provided by Mr Haris and recorded in the decision of the MAS Assessor. The Review Panel did not state whether the oral evidence was reviewed and rejected. It may not have been reviewed at all.

(2) Left lower limb and right lower limb injuries

1. [61]

   The Review Panel noted that there was:

2. [62]

   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.

3. [63]

   So far as the abdominal injuries were concerned, the Review Panel concluded that:

Determination of Review Panel

1. [64]

   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%.

2. [65]

   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):

3. [66]

   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.

Judicial review of the decision of the Review Panel

1. [67]

   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.

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

1. [68]

   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.

2. [69]

   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:

3. [70]

   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.

4. [71]

   According to Mr Haris, it was incumbent on the Review Panel to, after reviewing his explanation, voice any suspicions or scepticism it may have had about the evidence if it decided to reject it. He referred to Coote v Kelly [2013] NSWCA 357 where Leeming JA at [46] said:

5. [72]

   Senior Counsel for Mr Haris submitted that, in line with the above reasoning of Leeming JA, it was open to the Review Panel to be suspicious and sceptical of Mr Haris’ evidence. It was open to them to reject it entirely. However, if it adopted that course, the Review Panel was obliged to expose the reasoning process they followed when deciding to distrust or reject that evidence. For example, the Review Panel could have indicated that it thought the history given by Mr Haris was entirely illogical or glaringly improbable. Since the oral evidence was probative to causation, the Review Panel was required to refer to it and to consider it in context. As it did not do so, Mr Haris submitted that the Review Panel failed to take into account a relevant consideration and has fallen into jurisdictional error.

6. [73]

   Further, if the absence of a history of motor accident in the 13 week period after the accident was relevant to the determination of causation, then because the material which was before the Review Panel raised that very subject matter and proposition, for it to properly perform its clinical examination function under s 58(1)(d) (as it was doing the medical assessment afresh) in respect of causation. Mr Haris submitted that it was incumbent on it to make an inquiry of Mr Haris as to why he failed to mention his injury during that period. The Review Panel had a duty to inquire, and a failure to inquire supplied a sufficient link to the outcome to amount to a jurisdictional error in the nature of a constructive failure to exercise jurisdiction: see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Senior Counsel for Mr Haris said that in these circumstances, Mr Haris’ reasons and explanation for (a) the absence of any mention of the injury for a period of 13 weeks; or (b) the absence of any mention of the motor accident for 2½ years, was a necessary part of the Review Panel’s clinical examination, particularly if it was a matter to be relied upon to deny causation.

7. [74]

   Senior Counsel for AAI did not dispute that the Review Panel was required to refer to Mr Haris’ oral evidence in their reasoning as a relevant consideration. However, AAI’s position is that the Review Panel’s reference to the evidence was more than sufficient, and that Mr Haris’ assertion that the decision was based solely on the absence of contemporaneous evidence of complaints of pain to the lumbar spine was incorrect. Senior Counsel submitted that the Review Panel had not overlooked the oral evidence, and in actual fact had conducted a thorough assessment which took into account the clinical findings of the MAS Assessor as well as all the medical reports and investigations with which it was provided. Senior Counsel said that the Review Panel accepted and undertook its own assessment on the clinical findings of the MAS Assessor, and reasoned that far from overlooking the findings, the Review Panel had simply drawn different conclusions from those clinical findings.

8. [75]

   The thrust of AAI’s submissions was that it is not incumbent on a medical review panel to “go into every chapter and verse of every medical account” to explain their reasoning and prove that they have considered every relevant piece of evidence, nor recite in terms s 5D of the Civil Liability Act, common law causation principles or relevant parts of the Guidelines. In this case, the Review Panel confirmed that every piece of evidence was received and reviewed and it was not obligated to go any further. Senior Counsel for AAI highlighted the fact that there was not, as in the circumstances of the authorities referred to by Mr Haris in his submissions, “a piece of evidence that appears to have slipped out altogether, that has not been referred to at all”. He argued that since the oral account of Mr Haris was recanted at several places in the evidence, and as particular consideration was given to the question of causation by the Review Panel in its reasons at pages 4 and 5, it was blindingly obvious that that evidence had been reviewed. It was further submitted that it was blindingly obvious that that evidence was insufficient to prove causation. Further, according to AAI, it is obvious that Mr Haris suffered a pre-existing condition affecting his lumbosacral spine wholly unrelated to the motor accident.

9. [76]

   AAI’s argument was that the conclusion reached by the Review Panel, that in the presence of a pre-existing lumbosacral condition Mr Haris’ lumbar spine condition could have arisen but for the subject accident, was a perfectly acceptable medical conclusion. It was argued that this was the same conclusion reached by Dr Bye, and that there was nothing to establish that that conclusion was unreasonable.

10. [77]

    Further, AAI submitted that since the Review Panel’s decision was a reasonable medical conclusion, Mr Haris’ assertions of error are an impermissible challenge to its merits. The Review Panel drew a conclusion from the evidence, unfavourable to Mr Haris, which found that it was inconsistent for such a delay in the emergence of symptoms to occur, if he had suffered a back injury caused by the motor accident. The Review Panel was not bound to follow the opinion of any other medical specialist. Its duty was to assess the matter afresh, including the question of causation and Senior Counsel for AAI says that this is what the Review Panel did.

11. [78]

    In relation to any duty to inquire of Mr Haris about his explanation under s 58(1)(d), AAI submitted that the Review Panel had exercised its discretion to assess the matter without conducting a clinical examination. Senior Counsel for AAI said that the Review Panel did not consider it necessary to obtain a fresh history from Mr Haris, which he says it was entitled to do. AAI further submitted that the Review Panel already had the explanation of Mr Haris before it in the Certificate of the MAS Assessor and therefore the Review Panel had and did take this explanation into account when making its decision.

Consideration

1. [79]

   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].

2. [80]

   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].

3. [81]

   In De Gelder v Rodger (No 2) (2014) 68 MVR 340; [2014] NSWSC 1355, Hamill J highlighted at [38]:

4. [82]

   However, in cases that have similar factual circumstances to these proceedings, it has been held that a failure to analyse material provided by the parties indicative of causation can lead to identification of the wrong issues. It also can amount to a failure to take into account a relevant consideration resulting in jurisdictional error.

5. [83]

   In Owen, Campbell J at [52] said:

6. [84]

   In De Gelder, Hamill J at [73]-[74] stated that:

7. [85]

   In De Gelder, the Review Panel stated that it had considered all the evidence. So too did the Review Panel in this current application. Mr Haris in his statement says that he suffered back pain immediately following the motor accident and goes on to explain why he did not consult a medical practitioner immediately after the accident. There is an explanation as to why a temporal gap existed between the date of the accident and the seeking of medical treatment. That explanation may not have been accepted by the Review Panel as probative of causation, yet it was relevant and needed to be considered. This is especially so when considering the Review Panel’s reliance on the absence of contemporaneous evidence, as discussed by Hamill J in De Gelder from [77] to [79]:

8. [86]

   I respectfully agree with and adopt the reasoning of Hamill J. The Review Panel may have had particularly cogent reasons to reject the findings of the MAS Assessor of Mr Haris’ interview and oral examination. However, these reasons for rejection are not so blindingly obvious, that the Review Panel was entitled to disregard the evidence all together. It had an obligation to explain why it rejected the explanation. In my view, the statement that the oral evidence had been “received and considered” by the Review Panel, without anything further is insufficient to sustain a conclusion that it was taken into account. There is no reference to its content and no explanation as to how it bore upon the issue upon which the panel was focused (Hamill J in De Gelder).

9. [87]

   I am persuaded, in the circumstances of this case, that the failure of the Review Panel to take the oral material into account constitutes a reviewable error. That material was relevant to making a finding about whether there was sufficient contemporaneous evidence to find that the motor accident was causative of Mr Haris’ lumbar spine injury. The Review Panel has failed to take into account a relevant consideration, that is, the evidence directly relevant to the question of causation.

10. [88]

    It is my view that the oral evidence was a relevant consideration to be taken into account when the Review Panel determined the issue of causation. The MAS Assessor had recorded that Mr Haris presented a clear history consistent with clinical and radiological findings and that following the motor accident, Mr Haris indicated he had lower back pain which was tolerable and he was able to work. The MAS Assessor was cognisant of the fact that there was a delay between the accident and Mr Haris first attending his general practitioner. In these circumstances, some explanation was required to indicate that this relevant consideration was taken into account, and by failing to provide such reasons, the Review Panel has fallen into jurisdictional error.

11. [89]

    So far as a duty to inquire is concerned, it is my view that it was not incumbent on the Review Panel to conduct a further clinical examination.

12. [90]

    Under s 1.19 of the Guidelines, the Review Panel was required to consider the available evidence at the outset of their assessment. It did so, and stated that in considering all of the available evidence, a re-examination of Mr Haris was not necessary as there was sufficient medical evidence before it to decide causation. The Review Panel properly exercised its clinical examination function under s 58(1)(d). It was entitled to exercise its discretion not to require a further examination. The Review Panel discharged its statutory obligation to consider the evidence and was entitled to proceed to make a decision based upon the material before it.

Did the Review Panel deny Mr Haris procedural fairness?

1. [91]

   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.

Whether it is futile to grant relief

1. [92]

   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.

2. [93]

   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.

3. [94]

   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.

4. [95]

   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.

5. [96]

   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]:

6. [97]

   Also in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 67 ALR 21, the High Court in a well known passage stated at [25]:

7. [98]

   This Court cannot say with certainty that a review panel could not possibly have produced a different result. Accordingly, AAI’s futility argument fails. The result is that the Review Panel’s decision and certificate should be quashed and the matter remitted for reassessment.

8. [99]

   Similarly, in these circumstances, it is not desirable for me to sever the causation issue for reassessment from the other issue. The entirety of the assessment must be set aside, and the matter re-assessed generally.

Result

1. [100]

   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.

2. [101]

   Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs as agreed or assessed.