Insurance Australia Ltd t/as NRMA Insurance v Cornish

1. [1]

   On 2 September 2002 the First Defendant was injured in a motor accident. On 20 January 2015 Dr Thomson, a medical assessor of the State Insurance Regulatory Authority, determined that the First Defendant had suffered injuries to his cervical spine and lumbar spine and in other places on his body that were causally related to the accident.

2. [2]

   The injuries found may be summarised from the MAS’s report as follows:

3. [3]

   The impairments found were as follows:

4. [4]

   In addition, scarring to the right forearm, right thigh and hip was assessed by Dr McGlynn at 2%. The total whole person impairment assessment by Dr Thomson was 23%. A combined certificate was issued for 25%.

5. [5]

   The Plaintiff applied to the Authority for a referral of the medical dispute for further medical assessment on the grounds of there being additional relevant information about the injury capable of having a material effect on the outcome of the previous assessment pursuant to s 62 of the Motor Accidents Compensation Act 1999 (NSW). The Plaintiff claimed that the additional relevant information comprised:

6. [6]

   The submissions in support of the application said this:

7. [7]

   On 2 October 2015 the Proper Officer of the Authority refused the Plaintiff’s application for further medical assessment. The Plaintiff now challenges that decision by seeking an order in the nature of certiorari “setting aside” (as the Summons asserts) or, alternatively, a declaration declaring invalid, that decision together with an order in the nature of mandamus remitting the Plaintiff’s application to the Authority for determination of the application according to law.

The Proper Officer’s reasons

1. [8]

   The reasons for the decision of the Proper Officer say this, relevantly:

The asserted errors

1. [9]

   The Plaintiff identifies six errors in the Proper Officer’s decision and reasons. The first error is said to be that the Proper Officer wrongly construed the meaning of the expression “additional relevant information” in s 62(1)(a) of the Act so as to assume evidence supporting a conclusion that was also open on any earlier evidence could never be additional relevant information, and assuming that the reasons stated for expert opinion evidence are irrelevant to whether it can meet the description of additional relevant information.

2. [10]

   The second error was said to be that the Proper Officer decided the application by purporting to draw an inference from the Plaintiff’s submission as to whether the evidence relied on was capable of constituting additional relevant information instead of assessing the evidence for herself. In that way she failed to take into account a relevant consideration being the content of the claimed additional relevant information.

3. [11]

   The third error was said to be that the Proper Officer failed to consider for herself whether the Plaintiff satisfied the test in s 62(1A) that the relevant information was capable of having a material effect on the outcome of the previous assessment. The Proper Officer asked herself the wrong question, namely, whether the Plaintiff had “demonstrated” how the additional relevant information would have had that effect.

4. [12]

   The fourth error was said to involve legal unreasonableness in that the Proper Officer concluded, especially sight unseen, that the DVD material in the application was not, or was not capable of constituting, additional relevant evidence. Further, it was legally unreasonable for the proper officer to conclude that the previous assessment considered “the inconsistency” in the First Defendant’s presentation because to do so conflated an inconsistency with all inconsistencies. Further, the decision contained a fundamental internal inconsistency unable to be rationally explained. In paragraph 2 of the Reasons the Proper Officer determined that there was in fact additional relevant information but it was not capable of having a material effect on the outcome of the previous assessment. However, at paragraph 16 of her Reasons the Proper Officer concluded that the three items put forward by the Plaintiff were not additional relevant information within the meaning of the section.

5. [13]

   The fifth error asserted a failure to perform a statutory task in that each piece of material submitted in the Plaintiff’s application of inconsistent movement, postures and activities that was not seen in making the previous assessment was necessarily relevant and additional evidence. Whether the evidence was also capable of materially affecting the previous assessment could only be determined by the Proper Officer weighing the quality and quantity of that evidence in the context of the issues and other relevant evidence before the Medical Review Panel and its expressed reasons for decision. The Proper Officer did not perform that exercise at all and, accordingly, failed to perform her statutory duty.

6. [14]

   The sixth error asserted a failure to give proper reasons. The Plaintiff said that the Proper Officer failed to give any reasons for rejecting the Plaintiff’s submissions that:

Legislative provisions

1. [15]

   Section 62 of the Act provides:

2. [16]

   Section 65 of the Act relevantly provides:

3. [17]

   Chapter 14 of the Medical Assessment Guidelines deals with applications by a party for further medical assessment under s 62(1)(a). Chapter 14 relevantly provides:

The second error - failed to consider the evidence for herself

1. [18]

   These two asserted errors may be considered together because they both involve the allegation that the Proper Officer failed to view the DVD with the consequences which follow from that failure.

2. [19]

   The Plaintiff submitted that it was apparent from the reasons of the Proper Officer that she did not have regard to the DVD. That inference was said to be available because in paragraph 1 the Proper Officer said that she had considered “all supporting documentation” and that a DVD could not be considered as documentation. The Plaintiff also submitted that it was apparent from reading the Proper Officer’s Reasons that there was no meaningful discussion of the DVD and in that sense she had not actively intellectually engaged with what was on the DVD. Reliance was placed on what Fagan J said in Insurance Australia Ltd v Clewley [2015] NSWSC 1805; 74 MVR 345 at [32] – [34].

3. [20]

   The Plaintiff submitted that the application of the principle from Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182; 56 MVR 499 was misconceived because the footage from the DVD is significantly different from a written report or summary purporting to explain the footage. The Plaintiff submitted that the Proper Officer did not comply with clause 14.5.1 of the Medical Assessment Guidelines in that she did not have regard to the application which included the content of the application and, therefore, the DVD.

4. [21]

   The First Defendant submitted that it is clear from her reasons that the Proper Officer had regard to the application and the contents of the documents identified which included the DVD.

5. [22]

   I do not accept that the Proper Officer did not review the DVD. My reading of the Proper Officer’s Reasons as a whole satisfy me that the Proper Officer had regard to the DVD and its contents. She noted in paragraph 8 that the Applicant relied “on the following documents”, amongst which she listed the DVD. In paragraph 16 she discusses what “these documents” deal with as part of her consideration of whether they contained additional relevant information. The Proper Officer makes specific reference to the surveillance DVD and whether it, with the other documents, dealt with an opinion of a different kind already considered. The Plaintiff can point to nothing to suggest that the Proper Officer’s statement in paragraph 1 that she had considered all the supporting documentation was not true as far as the DVD is concerned except that the Proper Officer does not in her Reasons expressly discuss what she saw on the DVD. I do not consider that this provides a reason for not accepting the truth of the Proper Officer’s statement.

6. [23]

   Clewley is distinguishable on this issue. As Fagan J makes clear at [32], he inferred from what the proper officer in that case said that he had not viewed the DVD.

The third error - error of law

1. [24]

   The Plaintiff submitted that the Proper Officer made an error of law by asserting that the Plaintiff had an onus to show that the additional relevant information would be capable of having the material effect on the outcome of the previous assessment (paragraph 18). The Plaintiff submitted that this imported a legal test that did not form part of her task under s 62(1A).

2. [25]

   The First Defendant submitted that the Proper Officer had stated a correct principle of law, namely, that the Plaintiff had an onus to prove that the additional material would have had a material effect on the outcome.

3. [26]

   In Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Macfarlan JA, with whom McColl JA agreed, said:

4. [27]

   In Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 Beazley P at [48]-[49] and Tobias AJ at [108] agreed with those remarks.

5. [28]

   In QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 Basten JA (with whom Ward JA and Young AJA agreed) also made reference to those remarks of Macfarlan JA in Rodger v De Gelder and went on to say:

6. [29]

   Those views were affirmed by Meagher JA (with whom Tobias AJA agreed) in Henderson at [78].

7. [30]

   Justice Meagher JA went on to say:

8. [31]

   The statements contained in paragraph 18 of the Reasons that suggested the Plaintiff had an onus and that the Plaintiff had failed to demonstrate how the additional relevant information (if it was such) would have a material effect is a mis-statement of the position inasmuch as it imports an objective standard into the task of the Proper Officer. It must be regarded as an error and a failure by the Proper Officer to ask herself the correct question. All that is required is the subjective satisfaction of the Proper Officer. However, given my finding in relation to the fourth asserted error, this error is probably not material. It was an error in a hypothetical consideration by the Proper Officer which she acknowledged that she did not need to consider because she did not consider what was put forward was additional relevant information.

The fourth error - illogicality and unreasonableness

1. [32]

   The Plaintiff submitted that the decision was affected by legal unreasonableness in the sense of that expression in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 in that:

2. [33]

   The judgment of Hayne, Kiefel and Bell JJ said:

3. [34]

   The Plaintiff submitted that it was legally unreasonable for the Proper Officer to conclude, especially sight unseen, that the DVD material in their application was not, or was not capable of constituting, additional relevant evidence.

4. [35]

   The Plaintiff also pointed to what was said to be a fundamental internal inconsistency, which is unable to be rationally explained. That inconsistency is apparent from a comparison of what the Proper Officer said in paragraph 2 and paragraph 16. In paragraph 16 the Proper Officer says that she is not satisfied that the material put forward was additional relevant information. However, in paragraph 2 the Proper Officer said she was not satisfied “that the additional relevant information” was such as to be capable of having a material effect on the outcome of the previous assessment.

5. [36]

   In advancing these submissions Senior Counsel for the Plaintiff made reference to what the Proper Officer said (at paragraph 16) as follows. She said that she was not satisfied that the further material was additional relevant information and went to say:

6. [37]

   This is inappropriate language to use about a person in the position of the Proper Officer who was clearly doing her best to make an appropriate decision in reliance on authority as she understood it. I note that similar criticism was made of these type of pejorative remarks by Hamill J in El-Kazzi v Allianz Australia Insurance Ltd [2014] NSWSC 927 at [30]. In any event, so far from the remarks being complete rubbish and unintelligible, they were a quote, as is apparent, from the judgment of Rothman J in Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443; 57 MVR 157 at [53] and [63].

7. [38]

   The First Defendant submitted that the fact that a different conclusion could have been reached does not establish that the decision was illogical, irrational or lacking in intelligible justification. He submitted that any infelicity in expression by the Proper Officer does not vitiate the decision. It is clear, he submitted that the Proper Officer was of the view that what was put forward was not additional relevant information and that it would not have had a material effect on the outcome of the previous assessment.

8. [39]

   In my opinion there is, however, a proper basis for suggesting that the inconsistency between what is contained in paragraph 2 and what is contained in paragraph 16 is illogical (as discussed in Li). Justice Hamill in El-Kazzi had to consider the effect of a similar inconsistency. In that case the Proper Officer said that a second report from a doctor along with the injury referred to constituted new additional relevant information but two paragraphs later said that the report could not be considered as additional relevant information. Justice Hamill said at [33]:

9. [40]

   He went on to say:

10. [41]

    Error is shown in this regard.

11. [42]

    Although as Henderson makes clear it is not my task or the task of the Proper Officer to review the further material to determine whether there was “additional relevant material” (see at [52] and [105]), if it can be demonstrated that the Proper Officer made an error of law or if the Proper Officer’s decision was irrational or illogical then the decision will be set aside.

12. [43]

    The position in Clewley was somewhat analogous to the situation in the present case. However, in that case the Review Panel, in respect of which a further reference was sought under s 62, had a typed summary report of some film of activities of the claimant but the Panel did not have the DVD of the film itself. The application to the proper officer included a copy of the surveillance DVD as well as a report of Professor Spira who commented on the discrepancies and contradictions in the claimant’s presentation to what was shown on the DVD.

13. [44]

    As I noted earlier, Fagan J concluded that the proper officer had not viewed the DVD when that officer declined to refer the material under s 62 on the basis that the DVD and the report of Professor Spira constituted additional relevant information.

14. [45]

    Justice Fagan noted at [26] that the task of this Court on review is not to determine for itself whether the further information actually satisfies the statutory criterion of being additional, or is relevant, or is capable of having a material effect on the outcome of the previous assessment. His Honour noted at [26] what had been said by Basten JA in Miller at [36] that the critical question is “whether the information was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”. I have set that passage out above at [28].

15. [46]

    Justice Fagan went on to say:

16. [47]

    The position in the present case is stronger because in Clewley the Review Panel had the summary of the surveillance report although not the DVD. In the present case the assessor had neither.

17. [48]

    I am conscious of the fact that there was no contradictor in Clewley but I consider, with great respect, that Fagan J is correct in his conclusions in those passages set out above. I consider that the Proper Officer has misunderstood what I was saying in Alavanja at [35] (the passage the Proper Officer has referred to in paragraph 16 of her reasons), or has wrongly applied that passage. What I was discussing, as was Rothman J in Garcia v Motor Accidents Authority (NSW) [2009] NSWSC 1056; 54 MVR 102 at [38], was further opinion about the same matter. I do not consider that a DVD tending to demonstrate range of movement or capacity different from what had been assessed will or may be saying the same thing as an earlier opinion. If it is “new information” (Garcia at [38]) it may well amount to additional relevant information.

18. [49]

    I am satisfied that error has been shown in this regard also. As Hamill J said in El-Kazzi at [40], quite how the error is categorised is difficult, but the conclusion is, as was said in Li at [72], that the decision maker has been unreasonable in a legal sense.

The fifth error - failure to perform the statutory task

1. [50]

   The Plaintiff submitted that each piece of material submitted in the Plaintiff’s application of inconsistent movements, postures and activities that was not seen in making the previous assessment was necessarily relevant and additional evidence; that is, the Proper Officer was bound to accept that it fell within the statutory description properly construed. Although the matter was one for the Proper Officer it had to be a lawful determination reasonably made. The Plaintiff submitted that the Proper Officer did not perform that exercise at all and, accordingly, failed to perform her statutory task.

2. [51]

   The First Defendant submitted that the film, in the context of the case, was innocuous. He submitted that she was not required to provide minute by minute assessment of the film.

3. [52]

   It is not clear, but seems likely, that this error is asserted on the assumption that the Proper Officer did not view the DVD. I have already determined that she did so. If the submission is made, accepting that she did view the DVD, the Plaintiff’s submission would seem to be a restatement of the last asserted error by a different description. I have already determined that error is demonstrated by failing to regard the DVD as additional relevant information.

The sixth error – failure to give proper reasons

1. [53]

   The Plaintiff submitted that the Proper Officer failed to set out any reasons for rejecting the Plaintiff’s fundamental submissions. The specific complaints concerning the reasons are set out at [14] above.

2. [54]

   It may be observed that the Proper Officer’s Reasons which relevantly appear in paragraphs 16 and 17 are very brief. It is sufficient to note that the Plaintiff has demonstrated error from a reading of the reasons as they were expressed. This ground does not take the matter any further.

Discretionary considerations

1. [55]

   The Plaintiff accepted that even if error is demonstrated the question of what if any relief is to be accorded is a discretionary one. A discretionary consideration is whether there is any utility in sending the matter back for reconsideration by another officer on the basis that the result would be no different.

2. [56]

   The issue arises in this way. As has been noted the percentages assessed by Dr Thomson were as follows:

3. [57]

   Dr Thomson said that using the combined values chart at page 322 of the Guides to the Evaluation of Permanent Impairment published by the American Medical Association the combined whole person impairment was 22%. (That may be because the ankle restrictions are not to be counted twice but that was not made clear.) However, as noted earlier, the First Defendant was also assessed by Dr McGlynn in respect of scarring where he was assessed at 2%.

4. [58]

   There is a combined certificate given by assessor Alison Fitzgerald dated 18 February 2015 who used the 23% figure from Dr Thomson’s assessment and combined it with Dr McGlynn’s assessment so that the combined impairment was 25%. She said that she used the combined values chart to reach that figure. With great respect to Dr Thomson, my utilisation of the combined values chart would have produced a figure of 23% for his assessment alone. Regardless, the combined certificate is one of 25% whole person impairment.

5. [59]

   Section 61(10)(c) provides that the combined certificate is conclusive evidence as to whether the degree of permanent impairment is greater than 10%. Section 61(2) provides that any certificate is conclusive evidence as to the matters certified, in any court proceedings. I must start on the basis that the First Defendant’s impairment is 25%.

6. [60]

   The Plaintiff relies as part of the additional relevant information on the report of Dr Harvey of 6 July 2015. The Plaintiff accepted during the course of argument that large portions of Dr Harvey’s report could not considered additional relevant information when the principles in Garcia and Alavanja were applied to it. However, even overlooking that matter, Dr Harvey relies on the DVD to assert ultimately that the First Defendant has been left with no significant impairment in the neck, the back and the wrist. Accordingly, if the total of those percentages is subtracted from 25% the First Defendant is left with a whole person impairment of 13%. Even if one can discern from Dr Harvey’s report that he doubts the right knee injury, the subtraction of that percentage would still leave the First Defendant with a whole person impairment of 11%. The result must be, therefore, that the additional relevant information was not capable of having a material effect on the outcome of the previous assessment because it could not reduce the percentage below 11%.

7. [61]

   The Plaintiff counters that result by suggesting that the DVD itself casts doubt on the First Defendant’s credit generally. However, there is nothing in Dr Harvey’s report or any other material put forward by the Plaintiff which suggests that the assessment of the remaining body parts including the scarring is liable to any alteration as a result of the additional relevant information.

8. [62]

   In those circumstances it would be futile to quash the decision of the Proper Officer and require that judgment to be re-exercised. In those circumstances, despite error being shown, relief must be denied.

Conclusion

1. [63]

   Accordingly, I make the following orders: