Bridge v QBE Insurance (Aust) Ltd

1. [1]

   In June 2014 Mr Bridge was involved in a low-speed motor vehicle accident in which he injured his back and neck. In 2022 he was also involved in a high-speed motor bike accident, but it appears that did not result in any relevant further injury. He has twice undergone spinal fusion surgery and has not worked since the first accident. In 2023 he pursued a claim under s 131 of the Motor Accidents Compensation Act 1999 (NSW) for the non-economic loss which resulted from his injuries.

2. [2]

   The whole person impairment Mr Bridge suffered as the result of the 2014 accident had been repeatedly assessed. There was no question on the available information that before the accident he had suffered degenerative changes in his spine, which had to be taken into account in assessing the impairment which resulted from the accident.

3. [3]

   QBE did not concede that the injuries Mr Bridge had suffered in the 2014 accident had resulted in greater than 10% whole person impairment, the statutory impairment threshold: s 131. Mr Bridge pursued the resulting medical dispute in the Personal Injury Commission. That dispute was referred to Dr Hyde Page for assessment: s 60.

4. [4]

   What then had to be considered included that Dr Millons had found that the impairment flowing from the 2014 accident was 41%; Dr Bosanquet finding that Mr Bridge had suffered no whole person impairment as the result of that accident, his impairment having been entirely the result of pre-existing degenerative changes; but Dr Abraszko concluding that his whole person impairment resulting from the 2014 accident was 40%.

5. [5]

   In December 2023 Dr Hyde Page certified that Mr Bridge’s whole person impairment was 18%, he having concluded that the 2014 accident had contributed to his impairment, which he assessed to be 20%, from which he made a 10% deduction for his pre-existing impairment. QBE sought a review of that assessment on the ground that it was incorrect in a material respect: s 63(2). It challenged both the conclusion that the statutory threshold had been satisfied and how account had been taken of the pre-existing impairment in arriving at the 18% whole person impairment.

6. [6]

   The result was that a delegate of the President of the Commission concluded that there was reasonable cause to suspect that the assessment was incorrect in a material respect: s 63(2B).

7. [7]

   The assessment certificate was then referred to a Review Panel, which re-examined Mr Bridge and undertook the required new assessment: s 63(3A). It concluded that the whole body impairment he had suffered as the result of the 2014 accident was not greater than 10%, it having been entirely the result of his pre-existing degenerative condition, which had progressed over time. The Panel thus set aside the medical certificate Dr Hyde Page had issued.

8. [8]

   In this Court Mr Bridge pursues judicial review of the decision of both the Delegate and the Review Panel. He seeks orders setting aside both decisions and referring the matter to the Delegate and/or the President of the Commission, to refer the dispute to a different Review Panel. In summary he contends that:

   1. (1)

      The Panel committed jurisdictional error and/or an error of law on the face of the record:

   2. (2)

      The Delegate fell into jurisdictional error in referring QBE’s appeal to the Review Panel:

   3. (3)

      The Delegate also fell into an error of law on the face of the record in being satisfied that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect.

9. [9]

   Mr Bridge also contends that if the Court is satisfied that he has made out the case advanced in respect of the Delegate’s decision, it will not need to consider what he advances in relation to the Review Panel’s decision. That is disputed, given views expressed in Dominice v Allianz Insurance [2017] NSWCA 171 at [10].

Issues

1. [10]

   There is no issue that Mr Bridge had suffered relevant degenerative changes before he was injured in the 2014 accident.

2. [11]

   What the experts and assessors have disagreed about is whether Mr Bridge recovered from the injuries which he suffered in that accident, they thus not making or continuing to make any ongoing contribution to the whole person impairment which he suffers. The Panel, like Dr Bosanquet, having reached the view that his impairment is entirely the result of degenerative changes, not injuries which he suffered in the 2014 accident.

3. [12]

   Nor is there any issue as to the law which governed the assessment of the parties’ medical dispute, or the exercise of the functions of the Medical Assessor, Delegate and Review Panel.

4. [13]

   There is also no issue that the Court’s function on a judicial review application does not include any consideration of the merits of the conclusions arrived at by the Assessor, Delegate or Panel about the issues they respectively had to consider.

5. [14]

   It is settled that under this statutory scheme, given the provisions of ss 61(9) and 63(6), both medical assessors and review panels are obliged to give reasons for their assessments in the way explained in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

6. [15]

   Such reasons must be read as a whole, given a beneficial construction and are not to be scrutinised in overzealous judicial review, by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [29]-[31].

7. [16]

   The function of an assessor being to determine a quintessentially factual issue, the degree of permanent impairment which an injured person has suffered, that then being reduced to a percentage, calculated in accordance with the applicable Guidelines: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [40]. A failure to comply with those Guidelines may constitute a constructive failure to perform a statutory duty: Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22 at [16]-[22].

8. [17]

   The Act gives the President of the Commission a gatekeeper function on an application for review of an assessment: Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 and Insurance Australia Ltd v Marsh [2022] NSWCA 31. Section s 63(2B) limiting the referral of an assessment for review to disputes where 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”.

9. [18]

   That requires consideration of the matters stated in the submissions attached to the review application: Insurance Australia v March [2022] NSWCA 31 at [43].

10. [19]

    Neither the Act, applicable Regulations, the Personal Injury Commission Act 2020 (NSW), the Personal Injury Commission Rules 2021 (NSW), nor the Personal Injury Commission Procedures impose an obligation on delegates to give reasons, when referring a matter to a review panel. Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes, providing that “The President is not required to provide reasons where he or she decides that the matter can proceed to a review panel assessment.”: 45.

11. [20]

    Despite this, if a delegate’s opinion to refer or refuse to refer a matter is reached by misconstruing the requirements of the Act, the result is that the required statutory opinion has not been formed: QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [36] citing The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd (1949) 69 CLR 407 at 432; [1944] HCA 42. The critical question then being whether the decision “was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 at [38].

12. [21]

    If referred, the function of a review panel “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”: s 63(3A).

13. [22]

    What remained in issue between the parties in this case thus included whether:

    1. (1)

       The Delegate gave reasons;

    2. (2)

       Reasons were required;

    3. (3)

       Those given by the Delegate were inadequate;

    4. (4)

       The Review Panel’s assessment was undertaken in accordance with the applicable Guidelines; and

    5. (5)

       The Review Panel’s reasons were inconsistent and inadequately exposed its path of reasoning.

Was the Delegate obliged to give reasons?

1. [23]

   In both in Pinarbasi v AAI Ltd t/as GIO [2023] NSWSC 80 and Insurance Australia trading as NRMA Insurance v Liu [2023] NSWSC 1604 it was concluded that the President’s gatekeeper function under the Motor Accidents Injuries Act 2017 (NSW) in relation to a referral of an assessor’s certificate for review by a review panel, involved an administrative function which did not require the giving of reasons.

2. [24]

   There was no issue that the President’s function under s 63(3B) of the 1999 Act involves a similar administrative function, which thus does not require the giving of reasons, unless imposed by the legislative regime or some other requirement.

3. [25]

   In the case of a decision to refer an assessment to a review panel, the President’s Procedural Directions do not impose such an obligation. Nothing else imposes such an obligation when the decision made is to refer for review. Thus for the reasons explained in Pinarbasi and Liu, such an obligation cannot be implied in the 1999 Act, given the nature of the administrative function which a delegate is exercising when considering a review application.

4. [26]

   The absence of such an obligation does not preclude this Court’s review of a delegate’s decision, if there has been jurisdictional error: Avon Downs Pty Ltd v Federal Commissioner of Taxation (Cth) (1949) 78 CLR 353 at 360; [1949] HCA 26.

5. [27]

   There may also be circumstances where the failure to give any reason supports an inference that the decisionmaker had no good reason: Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 663-664; [1986] HCA 7. But that this is such a case is not apparent, despite what the Delegate said when making the decision to refer.

6. [28]

   I thus do not accept that a decision given by a delegate under s 63 cannot arise for review on an application such as this, despite what was observed in Hot Holdings v Creasy (1996) 134 CLR 496; [1996] HCA 44 at [159] and by Basten AJ in Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163 at [13] and Dominice.

7. [29]

   But this judicial review application does not turn on such questions.

Did the Delegate fall into relevant error?

1. [30]

   It should be noted that pertinently, what the Assessor concluded included:

2. [31]

   The Assessor finally concluded that Mr Bridge’s whole person impairment was 18%, having found that his two-level lumbar spinal fusion had resulted in whole person impairment of 20%. The Assessor making “a one tenth deduction for pre-existent degenerative disc disease of the lumbar spine and he did have a history of some low back prior to his injury. One tenth of 20% is 2% and when subtracted, he has 18% WPI.”

3. [32]

   Those conclusions were challenged by the insurer and arose for the Delegate to consider when determining whether to refer the matter to a review panel, given the submissions which the parties advanced.

4. [33]

   The insurer’s application was relevantly advanced on the basis that:

5. [34]

   Mr Bridge’s case was submitted to be that:

6. [35]

   The Delegate’s decision was short:

7. [36]

   Given what the Assessor had concluded and the parties had joined issue over, I do not consider that in so providing his decision, it can be accepted that the Delegate was purporting to give any reasons for his conclusion that the dispute had to be referred to a review panel, because the insurer had established that the assessment could be incorrect in a material respect.

8. [37]

   I certainly do not accept that what the Delegate said can properly be characterised as having given reasons “of some weight”, as was submitted orally.

9. [38]

   Nor do I accept that the Delegate had before him, or had to consider, all that the parties had put before the Medical Assessor, in arriving at his conclusion about what they had put in issue about the referral. That this material was before the Delegate was not established. Nor that it had to be before the Delegate. That does not appear to be required by the Act or any applicable procedure. That is understandable, given the limited administrative function which the Delegate had to perform.

10. [39]

    That the Delegate said that “the Assessor’s reasoning for apportionment is inadequate pursuant to clause 6.32 of the Motor Accident Guidelines satisfies me of reasonable cause to suspect that the medical assessment is incorrect in a material respect”, accords with an appreciation that there was no obligation to provide reasons which explained that conclusion. Nor to explain why the arguments advanced by Mr Bridge were rejected.

11. [40]

    Mr Bridge has not established that there was any obligation imposed on the Delegate to give such reasons. Nor that the little that the Delegate said purported to give reasons which were not required. Even if the Delegate had given reasons when none were required, it is difficult to see how they could establish a basis for judicial review, unless they disclosed that the Delegate had fallen into jurisdictional error.

12. [41]

    What the Delegate said discloses no such error. It follows that on this application the decision to refer cannot be set aside, as Mr Bridge seeks.

Did the Review Panel err?

1. [42]

   Nor am I satisfied that the reasons which the Panel gave established any error which would permit the exercise of the Court’s discretion to set aside its decision and to make the other orders which Mr Bridge seeks, given the Panel’s task, to undertake a new assessment. That assessment did not depend on finding error on the Assessor’s part, although his certificate was part of the material which the Panel had to consider.

2. [43]

   The evidence establishes that the Panel first considered the cases which the parties advanced on the review application by their submissions and concluded that Mr Bridge’s re-examination was required. It was undertaken by two of its members, it having identified in its March 2024 report and directions, what it considered to be the real issues: s 63(3B) of the 1999 Act and s 42 of the Personal Injury Commission Act. The Panel having noted “The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.”: s 42(1).

3. [44]

   The Panel also identified documents which it did not appear to have; required the parties to confer with a view to narrowing what was in issue; and issued directions about steps which the parties had to pursue.

4. [45]

   Having examined Mr Bridge the Panel finally gave extensive reasons for its conclusion that it did not agree with the Assessor, with the result that a new certificate had to be issued. The Panel correctly explained the medical dispute the Assessor had to consider, noting:

5. [46]

   It also noted the history the Assessor had to consider in light of his examination of Mr Bridge and the medical reports, observing that:

6. [47]

   The Panel explained: the applicable legislative framework; the assessment it had to review; the issues which it had to determine, by reference to the submissions advanced, which turned in part on whether the Assessor had been bound by an earlier certificate issued by Medical Assessor Ashwell in 2018; procedural matters; the final submissions pressed; its review of the evidence, including statements Mr Bridge had made, what treating medical records and reports revealed, before and after the 2014 accident, as well as what the radiology evidence established; what medical legal reports disclosed; what Assessor Ashwell had found; and what had been found on Mr Bridge’s re-examination, including the history he then gave; and the examination findings.

7. [48]

   The Panel turned, at page 30 of its report, to its consideration of the issues, beginning with whether Assessor Ashwell’s certificate was binding on it. In these proceedings the insurer accepted that the case it had advanced about this was incorrect, as the Panel found.

8. [49]

   The Panel then considered whether Mr Bridge was a reliable historian, concluding for reasons which it explained at [242]-[249] that his evidence should be approached with caution.

9. [50]

   The Panel then dealt with his lower back injury, before turning to the impairment of his lumbar spine. Its conclusions were succinctly explained:

10. [51]

    The reasons for these conclusions were earlier given:

11. [52]

    The merits of these conclusions do not arise for consideration. It is whether Mr Bridge has established that the Panel fell into the alleged legal errors which has to be determined, he contending amongst other things that its conclusions were contradictory. I am not satisfied that he has met that onus, given the path of reasoning which the Panel exposed by the reasons it gave.

12. [53]

    The case pressed for Mr Bridge included that in considering whether the injuries caused by the accident contributed to the spinal surgery the Panel had erred, because that was not a matter over which they had joined issue, despite s 58 including in the disagreements about medical matters to which Part 3.4 medical assessment matters applies, disagreements about whether any treatment relates to the injury caused by the motor accident: s 58(1)(b). As well as disagreements about “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”: s 58(1)(b).

13. [54]

    The medical dispute referred to the Assessor under s 60(1) included:

14. [55]

    The result of the Panel’s erroneous approach, Mr Bridge contended, was that its findings at [256] were inconsistent with its findings at [258], [252] and [253]. That establishing that it had not complied with its obligation to give reasons which exposed its path. That was disputed.

15. [56]

    The insurer’s case being pressed on the basis that the Guidelines required the assessment of Mr Bridge’s impairment to be undertaken in the way specified at 1.31 and 1.32, pre-existing impairment being present. Guideline 1.34 applying if there had been further subsequent injury, which was not factually found in Mr Bridge’s case.

16. [57]

    The required process thus involving subtraction, rather than apportionment, the approach which the Assessor had adopted, when a conclusion was arrived at about percentage impairment. The Assessor had thus failed to undertake the assessment in the required way: Cowcher v Allianz Australia Insurance Limited [2019] NSWSC 572 at [35]-[36] and GIO General Limited v Smith & Ors Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802.

17. [58]

    The insurer also contended that the Guidelines were protective for an applicant, pre-existing non-symptomatic impairment not having to be taken into account on such an apportionment. Given that Mr Bridge’s impairment was largely asymptomatic, there ought to have been no deduction made for them. The Guidelines also providing that it was sufficient to establish causation if the accident was more than a negligible cause of the injuries. The possible deductions under the Guidelines being 0%, 5% and 10%, depending on the assessment of the pre-existing impairment, that depending on the symptoms present at the time of the accident.

18. [59]

    The case advanced before the Delegate had turned on the Assessor’s failure to explain why he had concluded that the impairment assessed to be 20% was to be reduced by 10% to 18%, no reference having been made to the requirements of the applicable Guidelines.

19. [60]

    The result of the Panel’s approach on its new assessment, was that it did not make the critical finding as to causation. The Panel awkwardly, although not incorrectly, explained what the Assessor had done at [22] of its reasons. Unlike the Assessor, it concluded that the accident had only temporarily exacerbated Mr Bridge’s pre-existing condition, with the result that the spinal surgery which he underwent was not causally related to it. That was a departure from what Assessor Ashwell had concluded, but it was not bound by that assessment.

20. [61]

    Mr Bridge also gave a history of some back problems before the accident suggestive of a previous disc injury consistent with work undertaken in the mines and complaints about back pain afterwards. But the Panel concluded that he had only suffered soft tissue injuries in the accident, spondylolisthesis found in August 2014 not consistent with the forces involved in the car accident, what was found on MRI having been described as degenerative. It also concluded that disc bulges identified in 2015 had not been caused by the forces involved in the accident.

21. [62]

    The Panel’s reasons were thus consistent. That is, that the car accident did not materially contribute to Mr Bridge’s need for spinal surgery 6 years afterwards, it being required to address his longstanding underlying constitutional and degenerative conditions which the accident had not exacerbated. Its reasons were explained by use of the language of the applicable Guidelines. Accepting that the accident had aggravated the pre-existing degenerative condition, it concluded that this was no longer of any consequence at the time surgery was required, then because of his degenerative condition having worsened.

22. [63]

    Having concluded that the minor aggravation caused by the accident was not a material cause of the surgery, the Panel thus did not have to consider questions of deduction for pre-existing impairment.

23. [64]

    It followed that on this application the Court could not interfere with the Panel’s decision, its reasoning process being able to be discerned from the reasons which it gave: Allianz Australia Insurance Limited trading as Allianz v Susak [2025] NSWCA 91 at [56]-[57].

24. [65]

    I am satisfied that the insurer’s case must be accepted, given the Panel’s explanation of the conclusions it had reached. I am unable to accept that they were contradictory.

25. [66]

    The reasons given disclose that the conclusions which the Panel arrived at had regard to the forces involved in the accident in which Mr Bridge was injured and the view it took of Mr Bridge as an historian. It taking the view that he had catastrophised his evidence on examination, having described suffering pain over his entire body which did not accord with contemporaneous documents.

26. [67]

    It considered that his was a case where the accident loomed large in his consciousness, with everything that had occurred afterwards having been blamed on it, given the chronic pain which he suffered.

27. [68]

    The Panel doubted that the accident had been significant enough to cause any injury, although it was accepted that it could have caused injury or worsened an existing condition. Given contemporaneous records it concluded that Mr Bridge did then suffer soft tissue injury from which he recovered.

28. [69]

    The Panel noted problems in 2014 and 2015 which had not been caused by the accident, which established the degenerative changes in Mr Bridge’s spine. But they concluded that the injury he suffered in the accident did not materially contribute to the later surgery, it being required to address his longstanding underlying conditions, he having recovered from the soft tissue injuries.

29. [70]

    Reasons were also given for conclusions which were reached about the claimed injury to Mr Bridge’s neck, which he had advanced at the examination.

30. [71]

    The result was that the Panel was not satisfied that the soft tissue injuries sustained to Mr Bridge’s neck and back in the 2014 accident exacerbated his underlying degenerative changes. They concluding that they were not of long-term material consequence and did not contribute to the need for his later surgery or current impairment.

31. [72]

    The result was that the Panel came to a different view to that reached by the Assessor, who had concluded that even though the accident was a “low speed rear-end motor vehicle accident”, it did aggravate Mr Bridge’s underlying degenerative disc disease of the lumbar spine and that this aggravation never ceased. The Panel concluded that it did cease, with the result that the accident did not contribute to Mr Bridge’s whole person impairment.

32. [73]

    Given the task the Panel had to undertake, a new assessment of Mr Bridge’s impairment and the conclusions which it reached, it did not have to resolve the question of whether the insurer was correct in contending that the Assessor had erred in how he approached the assessment of the contribution which the aggravation he had found, had made to Mr Bridge’s whole person impairment.

33. [74]

    That was regulated by Guideline 6.32, which required consideration of the pre-existing impairment, which then had to be subtracted from the impairment the Panel found, in order to arrive at a conclusion about the impairment caused by the accident.

34. [75]

    Instead, the Medical Assessor reduced the whole person impairment he found, of 20%, by 10%, that resulting in a total impairment of 18%. It is difficult to see that the Guidelines permitted that approach. That explains the Delegate’s decision to refer the assessment for review. But because of the conclusion which it arrived at, the Panel did not have to resolve the cases the parties advanced about what Guideline 6.32 required, when Mr Bridge’s whole person impairment was calculated.

35. [76]

    How that calculation must be undertaken thus also does not arise to be resolved on this application.

36. [77]

    The case the insurer advanced included that the accident had not resulted in a whiplash injury which caused the disc protrusions which required the lumbar spinal fusion. The accuracy of the Panel’s conclusion, that the accident did not result in such an injury, having concluded that it had resulted only in soft tissue injuries from which Mr Bridge recovered before the surgery, also does not arise to be considered.

37. [78]

    Its obligation was to undertake the review “by way of a new assessment of all the matters with which the medical assessment is concerned” and in its reasons, to expose the path of reasoning which led to that conclusion. Reading its reasons in the required way, I am not persuaded that the Panel failed to do so.

38. [79]

    In Mr Bridge’s written submission there was no issue taken with the Panel’s reasoning in respect of the forces involved in the impact and the resulting injury to Mr Bridge’s back, or with the conclusion that it was a soft tissue injury on a background of degenerative spinal conditions, which were exacerbated by the accident.

39. [80]

    The gap in the Panel’s reasoning, which could not be filled by necessary inference, in the way discussed in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6], was claimed by the insurer in oral submissions not to have been identified. There were no submissions advanced in reply.

40. [81]

    Issue was taken with the conclusion the Panel also reached, that there had been no continued aggravation of the underlying condition, with the result that Mr Bridge’s current lumbar spine impairment was not related to the injuries suffered in the accident. It being submitted that this opinion was entirely inconsistent with the other opinions it had formed and that it was the antithesis of what was required.

41. [82]

    I am unable to accept this.

42. [83]

    The reasons given disclose that the Panel concluded that Mr Bridge recovered from the soft tissue injuries which he had suffered in the 2014 accident, which thus had no ongoing consequences and did not contribute to the need for surgery or the impairment it identified on its examination.

43. [84]

    Whether that conclusion was correct, given all that the evidence established does not arise for consideration. The Court being confined, as it is to the correction of legal error.

44. [85]

    That the Panel fell into the claimed errors thus cannot be accepted. It had to come to conclusions about the matters the parties had joined issue over in its new assessment, having itself examined Mr Bridge. It gave reasons for the conclusions it reached. They had regard to the history he gave and its inconsistency with the forces involved in the low-speed accident in which he had been involved in 2014 and what contemporaneous records established, as well as its doubts about his reliability as a historian.

45. [86]

    The result is that it must be accepted that the Panel did adequately expose its path of reasoning to the conclusions it arrived at. It follows that the orders which Mr Bridge seeks cannot be made.

Costs

1. [87]

   The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42. That is an order that Mr Bridge bear the insurer’s costs.

2. [88]

   Unless the parties approach with short written submissions within 14 days, that will be the Court’s order.

Orders

1. [89]

   For the reasons given I order that:

   1. (1)

      Mr Bridge’s application is dismissed.

   2. (2)

      Unless the parties approach with short written submissions within 14 days, Mr Bridge is to bear the insurer’s costs, as agreed or assessed.