Martin v Insurance Australia Limited t/as NRMA Insurance

1. [1]

   HER HONOUR: This is a judicial review of a decision of a Proper Officer of the State Insurance Regulatory Authority. By summons filed 14 February 2017, the plaintiff seeks firstly, a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the determination and statement of reasons issued by the second defendant, constituted by the third defendant, on 14 December 2016 is void and of no effect; secondly, an order setting aside the determination and statement of reasons issued by the second defendant constituted by the third defendant on 14 December 2016; and finally, an order remitting the matter to second defendant for determination by a different Proper Officer according to law.

2. [2]

   The plaintiff is Jacinta Louise Martin (“Ms Martin”). The first defendant and active contradictor, is Insurance Australia Limited trading as NRMA Insurance (“the insurer”), the insurer liable for Ms Martin’s claim. The second defendant is the State Insurance Regulatory Authority. The third defendant is a Proper Officer appointed by the State Insurance Regulatory Authority for the Motor Accidents Medical Assessment Service. The second and third defendants have filed submitting appearances, save as to costs.

3. [3]

   Ms Martin relied upon the affidavit of her solicitor Robert Warren dated 12 April 2017. Both parties relied upon their joint court book.

Factual Background

1. [4]

   Ms Martin is 49 years old. She has Bachelor of Applied Science in Nursing and has also obtained postgraduate qualifications in Occupational Health and Safety and Management. She has worked as a registered nurse and as an injury management adviser with NSW Police for a period of nine years until her medical retirement in 2015.

2. [5]

   Ms Martin alleges that she suffered physical injuries from a motor accident on 18 May 2006. She was 26 weeks pregnant with her second child.

3. [6]

   The insurer denies that the accident on 18 May 2006 was caused by the fault of its insured driver and denies liability.

4. [7]

   Ms Martin alleged that she suffered the physical injuries caused by the motor accident on 18 May 2006 including an injury to the lumbar spine, injuries to both hips, an injury to the right sacroiliac joint resulting in pelvic instability and injuries to both knees.

5. [8]

   Ms Martin states that she was driving her unmarked police car in her role for the NSW Police and was traversing through a two-lane roundabout when another driver made a careless lane change, forcing her to the left hand side and hitting the curb. Ms Martin states she felt sick at the time of the accident, believing she had “jarred myself and the baby”.

6. [9]

   On 28 July 2015, Ms Martin filed an application for assessment of a permanent impairment dispute by the medical assessment service.

7. [10]

   The insurer disputes that any of the alleged injuries were caused by the subject motor accident and therefore disputes that Ms Martin suffers greater than 10% whole person impairment arising from physical injuries caused by the accident.

8. [11]

   The dispute regarding impairment and causation of symptoms was referred for assessment to the Medical Assessment Service under the authority of the State Insurance Regulatory Authority.

The decision of the AMS – Dr McGrath

1. [12]

   The matter was referred by the Medical Assessment Service to an approved medical specialist (“the AMS”), Dr David McGrath. Dr McGrath is a specialist in musculoskeletal, occupational and pain medicine. I shall briefly refer to his decision.

2. [13]

   The injuries to be assessed are:

3. [14]

   On 9 December 2015, Ms Martin attended an assessment with the AMS at the request of the medical assessment service to determine whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%.

4. [15]

   The AMS recorded a history given by Ms Martin of the motor accident, the treatment details of injuries or conditions sustained since the motor accident and her current symptoms and treatment. He reviewed documentation and summarised the relevant documentation. At paragraph [6], the AMS recorded his conclusions. Importantly, under the heading “Diagnosis and Causation” the AMS stated that the dominant diagnosis is pregnancy related pelvic girdle pain (“PPGP”) and listed articles where the science of this condition is captured. (My emphasis added).

5. [16]

   The AMS then stated:

6. [17]

   The AMS concluded that none of the alleged physical injuries were caused by the motor accident that occurred on 18 May 2006 and determined that Ms Martin had suffered the causally unrelated condition of PPGP.

7. [18]

   On 21 December 2015, the certificate was issued by the AMS who determined that of the physical injuries referred to him for assessment, none were related to the motor accident. An assessment of the degree of permanent impairment of those injuries was therefore, not required.

Application for review under s 63 of the Motor Accidents Compensation Act

1. [19]

   On 3 March 2016, Ms Martin filed an application for review under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). Proper Officer Redmond rejected that application. Ms Martin claimed that in respect to the connection between her post accident pelvic and related conditions of her spine, hips and knees and the motor accident on 18 May 2006, prior to the accident she displayed no symptoms.

2. [20]

   In her analysis, Proper Officer Redmond stated:

3. [21]

   Proper Officer Redmond was not satisfied that there was reasonable cause to suspect that the assessment of the AMS was incorrect in a material respect and dismissed the review application.

Application for further medical assessment under s 62 of the Act

1. [22]

   On 28 September 2016, Ms Martin made an application for a further medical assessment pursuant to s 62 of the Act. On 14 December 2016, Proper Officer Probert (“the Proper Officer”) dismissed that application. It is this decision that is the subject of judicial review in this court.

The relevant statutory provisions

1. [23]

   It is convenient that I briefly set out the relevant provisions of the Act here.

2. [24]

   The provisions setting out the procedures in relation to medical assessments are contained in Part 3.4 of the Act. Section 58 relevantly provides for when Part 3.4 should apply.

3. [25]

   Section 58 of the Act relevantly reads:

The Medical Guidelines

1. [26]

   The Motor Accidents Authority may issue guidelines described as Medical Assessment Guidelines (“the Guidelines”) with respect to various matters, including the procedures for referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessment, under Part 3.4 of the Act: s 44(1)(d). The following Guidelines issued under s 44(1)(d) of the Act are relevant here.

The grounds of review

1. [27]

   The grounds of review of the Proper Officer’s decision dated 14 December 2016 are:

Submissions made by Ms Martin to the Proper Officer

1. [28]

   Ms Martin provided a report of Dr Lyneham (an obstetrician and gynaecologist) dated 24 June 2016 together with supplementary reports of Dr Ghabrial dated 1 August 2016 and Associate Professor Cusi dated 25 August 2016. Dr Lyneham expressed the opinion that on his analysis of the records, Ms Martin did not fulfil “all of the criteria” for a diagnosis of PPGP during her pregnancy. He answered questions 4 and 5 as follows:

The decision of the Proper Officer dated 14 December 2016

1. [29]

   The Proper Officer at [4] stated that in making her decision she had considered the following legislation, guidelines and case law:

2. [30]

   It should be noted that the Proper Officer made no mention of Jubb v Insurance Australia Limited [2016] NSWCA 1153; (2016) 76 MVR 228 (“Jubb”) as being considered in making her decision. Nor is there any mention of Jubb in her reasons.

3. [31]

   The Proper Officer continued:

4. [32]

   While the Proper Officer accepted that the reports of Drs Lyneham, Ghabrial and Cusi were additional she was not satisfied that they were additional relevant information because Ms Martin had not demonstrated how this information provided “contemporary evidence of pelvic joint or any other musculoskeletal injury” that was causally related to the accident and which are such as to be capable of having a material effect on the outcome of the previous assessment as outlined in s 62(1A) of the Act.

5. [33]

   Senior counsel for the insurer agrees that the Proper Officer’s statements in paragraphs [30] and [32] are wrong. Paragraph [30] is not in accordance with what is said in Jubb at [80] and paragraph [32] of the Proper Officer’s decision is not in accordance with what is said in Jubb at [31]. However, the insurer’s central argument is that these errors are not material to the Proper Officer’s final decision.

6. [34]

   Senior counsel for Ms Martin submitted that the Proper Officer did not consider or apply the principles applied in Jubb and therefore misdirected herself as to her statutory duty.

Consideration of Jubb v Insurance Australia Ltd [2016] NSWCA 153

1. [35]

   Jubb considered the proper construction of s 62 of the Act. At [13] to [35] Gleeson JA (with whom Meagher and Payne JJA agreed) explained:

2. [36]

   The Court of Appeal in Jubb (at [72] to [82]) then had something to say about Singh v Motor Accidents Authority of NSW (No 2) [2010] NSWSC 1443 (“Singh (No 2)”). These comments are instructive but strictly obiter dicta.

3. [37]

   Both parties referred to Insurance Australia Limited t/as NRMA Insurance v Asaner (No 2) [2016] NSWSC 1078 (“Asaner No 2”) as support for their submissions. Asaner No 2 concerns a judicial review of a decision of a Proper Officer who refused the plaintiff’s application for a referral for a further medical certificate under s 62(1)(a). The Proper Officer had made his decision before the Court of Appeal had handed down its decision in Jubb and also after the hearing took place before Campbell J but before his Honour handed down his decision. The parties then provided supplementary submissions to Campbell J concerning Jubb.

4. [38]

   In Asaner No 2, Campbell J stated at [16] and [17]:

5. [39]

   On this topic Campbell J in Asaner (No 2) concluded at [28]:

Ms Martin’s submissions

1. [40]

   Senior counsel for Ms Martin submitted that the principles to be applied in an application under s 62 of the Act for a further medical assessment are set out in the decision of Jubb.

2. [41]

   According to senior counsel, in Jubb, the Court of Appeal rejected and sidelined the principles which had derived from the earlier decisions in Singh (No 2) and Alavanja. Although clause 14 of the applying guidelines talks materiality for the purposes of s 62 relating to the question of whether or not whole person impairment would exceed 10%, in Jubb, the Court of Appeal identified that this is not a requirement of the statutory power in s 62, and that clause 14 did not operate to impose that criterion as a requirement to the power in s 62.

3. [42]

   The Proper Officer’s decision identifies that the decisions in Singh (No 2) and Alavanja were “considered” and identifies the principles of the cases in her decision. Senior counsel for Ms Martin submitted that these are principles which were identified by the Court of Appeal in Jubb as being incorrect.

4. [43]

   The Proper Officer’s decision at [14] identifies the approach relies on clause 14 of the applying guidelines, and that is contrary to the principles identified in Jubb at [31].

5. [44]

   Ms Martin claims that the Proper Officer at [32] shows the incorrect approach to materiality because it focuses on the question of greater than 10 % whole person impairment, and that is incorrect. Therefore, she says this Court could not be satisfied that the Proper Officer’s exercise of power under s 62 was not influenced and impacted by the application of the incorrect principles from Singh and Alavanja. She says that it is not open for this court to seek to effectively reconstruct, restate or remark the Proper Officer’s decision by reference to the correct principles as identified in Jubb, and no findings were made by the Proper Officer by reference to the correct principles.

6. [45]

   According to Ms Martin, there are no reasons provided by the Proper Officer as to why the principles identified in Jubb should not be applied, or why if they are applied, the same outcome is achieved as if the principles from Singh (No 2) and Alavanja were applied. Accordingly, the Proper Officer failed to state reasons and that is independently sufficient for the Proper Officer’s decision to be set aside. Counsel for Ms Martin accepts that although reasons are not to be read finely attuned to the identification of error, in this case there can be no filling of the gaps or supposition as to reasons, which were in fact not stated.

7. [46]

   Overall, senior Counsel for Ms Martin submitted that because the Proper Officer’s decision identified that the Proper Officer applied the incorrect principles to s 62, the Proper Officer misdirected herself as to the power to be applied and that represents an orthodox example of administrative error.

The insurer’s submissions

1. [47]

   While senior counsel for the insurer accepts that the Proper Officer made no reference to the decision of the Court of Appeal in Jubb and also accepts that the effect of the decision of Jubb is to put aside the previous decisions of this Court in Singh and Alavanja, he submitted that the Proper Officer’s decision was correct and her decision is unaffected by the decision in Jubb for a number of reasons. They are that Ms Martin complained to the AMS of bilateral pelvic joint pain and the AMS concluded that Ms Martin’s pelvic joint pain was wholly unrelated to the motor vehicle accident on 18 May 2006.

2. [48]

   Further the AMS’s gave reasons for rejecting any causative link between Ms Martin’s pelvic symptoms and the motor vehicle accident. They are firstly that there was no complaint of pelvic pain, or indeed any reference to the motor accident at all, when Ms Martin saw her general practitioner on 19 May 2006; secondly, although Ms Hodge a physiotherapist saw Ms Martin three weeks later and believed that she had suffered an injury to her right sacroiliac joint, the AMS concluded that the symptoms were not unusual for a woman at her stage of pregnancy (26 weeks); thirdly, the AMS was of the opinion that the absence of pelvic pain within 24 hours after the motor vehicle accident indicated that no pelvic injury was suffered; fourthly, the AMS considered the forces involved in the accident and concluded that “a jolt to the pelvis and spine is biomechanically insufficient to create the alleged (pelvic) injuries; and lastly, if there was a contribution, it is negligible”. The AMS concluded that Ms Martin suffers from bilateral hip disease, unrelated to the motor vehicle accident, which has become painful and accepted the opinion of an orthopaedic specialist, Dr Cummine, and the opinions of Drs Bornstein and Harrison; and on these bases, the AMS concluded that Ms Martin’s pelvic pain would have occurred independently of the motor accident and was not caused or contributed to by it.

3. [49]

   According to the insurer, the critical matters in the opinion of the AMS, that resulted in any causative link between the plaintiff’s pelvic symptoms and the motor vehicle accident are the mechanical forces involved in the accident and the absence of any pelvic pain within 24 hours after the accident precluded any diagnosis of pelvic injury caused by the accident. The AMS proposed an alternative diagnosis, namely PPGP and referred to literature that in his view supported the alternative diagnosis. It should be noted that the AMS did not diagnose an alternative diagnoses, he diagnosed PPGP as the dominant diagnosis.

4. [50]

   The insurer says that while it would have been desirable for the Proper Officer to refer to Jubb, in this particular case Jubb does not contradict, or even affect, the Proper Officer’s decision to refuse Ms Martin’s application for further medical assessment under s 62 of the Act.

5. [51]

   The insurer submitted that the reports of Drs Lyneham, Ghabrial and Cusi simply could not and did not contradict the essential reasons for the AMS’s conclusion on causation of Ms Martin’s pelvic pain; and therefore the reports are not relevant information about the injury and could not have a material effect on the outcome of the decision of the AMS. For these reasons, the insurer says that there is no legal or jurisdictional error in the decision of the AMS to refuse Ms Martin’s application for further assessment under s 62 of the Act.

Conclusion

1. [52]

   In this judicial review, the formation of the opinion or state of satisfaction required under s 62(1A) has been formed according to law. It has been accepted that s 62 impliedly confers power on the Proper Officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subsection (1A) are satisfied. If the opinion is reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. Also, the power of referral under s 62 of the Act is subject to a residual discretion (“may”) given in s 62(1) of the Act, whether or not to refer a matter for a further assessment. (Jubb [32], [33], [34] and [36]).

2. [53]

   The Proper Officer refused to refer the matter for assessment again. The decision was principally based on two grounds. The first was that the material identified by Ms Martin was not additional relevant information. The second was that she was not satisfied that the additional information was capable of having a material effect on the outcome of the previous assessment.

3. [54]

   So far as the first ground is concerned, the Proper Officer stated at [32] that although the reports of Dr Lyneham Dr Ghabrial and Dr Cusi are additional to the party relying on them, she was not satisfied that they are additional relevant information because they appear to provide an opinion which is merely saying the same thing but using different or greater analysis.

4. [55]

   It seems to me that an opinion from Dr Lyneham who is a qualified obstetrician, which disagreed with the specialists who were not obstetricians with the diagnosis of PPGP, is legally capable of at least constituting additional information.

5. [56]

   As to the second ground, the Proper Officer’s reasons for not being satisfied that the additional information was such as being capable of having a material outcome on the earlier assessment were expressed in [32] in the following terms.

6. [57]

   To my mind the Proper Officer has applied the different and stringent test set out in clause 14.7 of the Guidelines by referring to there being no evidence which could demonstrate an opinion that any injury was causally related to the subject and accident and is in excess of the threshold.

7. [58]

   Finally, in light of Jubb, it is my view that the Proper Officer did not have regard to her residual discretion given in s 62 of the Act as to whether or not to refer the matter for further assessment.

8. [59]

   Hence, I cannot be satisfied that the Proper Officer’s exercise of power under s 62 was not influenced and impacted by her application of the incorrect principles set out in Singh (No 2) and Alavanja. It is my view that the errors not only contributed to the Proper Officer’s decision but were central to it. As the Proper Officer’s decision identifies that she applied the incorrect principles in relation to s 62, the Proper Officer has misdirected herself as to her statutory task. By doing so she fell into jurisdictional error. There is also an error on the face of the record. (see Jubb [43]).

9. [60]

   Finally, senior counsel for the insurer submitted that this Court should not grant on a discretionary basis the relief claimed despite the errors because the endpoint decision made by the Proper Officer of the legal principles and correct factual will be the same.

10. [61]

    The criteria for withholding of a remedy on that type of futility or discretionary basis is available only in few cases. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, the Court spoke of withholding a new trial “If it would inevitably result in the making of the same order as that made by the primary judge at first trial.” That control has also been described as requiring “reasonable assurance” that the outcome would be the same: see Balenzuela v De Gail (1959) 101 CLR 226 at 234-235, unless it is clear that the same outcome would be reached: see AMP Capital Investors Limited v Transport Infrastructure Development Corporation [2008] NSWCA 325 at [120], or it can be said with confidence that the same outcome would be reached: Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FL 304 at 413 (all refers to in Sydney Water Corporation v Caruso [2009] NSWCA 391). I am not satisfied that on remittal the decision would inevitably result in the making of the same order as that made by the Proper Officer. In the exercise of my discretion the Proper Officer’s decision should be quashed. The matter is remitted to the State Insurance Regulatory Authority of NSW to be determined according to law.

11. [62]

    Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.