D’Ament v Allianz Australia Insurance Ltd

1. [1]

   MACFARLAN JA: I agree with Simpson AJA.

2. [2]

   LEEMING JA: I agree with Simpson AJA.

3. [3]

   SIMPSON AJA: The appellant appeals against orders made in the Common Law Division of the Supreme Court (Lonergan J – “the primary judge”) dismissing a summons by which she (the appellant) had sought, pursuant to s 69 of the Supreme Court Act 1970 (NSW), declaratory and other relief in respect of a decision made on 9 January 2017 under s 63(4) of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”). The decision in question was that of a Medical Review Panel of the Medical Assessment Service constituted under s 63 of the MAC Act. The appellant named Allianz Australia Insurance Ltd (“Allianz”), the State Insurance Regulatory Authority (“the Authority”) and the Medical Review Panel constituted by its three named members (“the Review Panel”) as defendants. Only Allianz has participated in the proceedings.

4. [4]

   The task of the Review Panel was to assess, under the provisions of the MAC Act, the degree of permanent impairment (if any) suffered by the appellant in a motor vehicle accident in which she was involved on 18 November 2010. Before the primary judge the appellant contended that, in three respects, the Review Panel failed to perform its statutory task, and that it erred in law by failing to perform a clinical examination of the appellant. The primary judge rejected each contention.

5. [5]

   It was not and is not in dispute that the appellant suffered injury to her cervical and lumbar spine in the motor vehicle accident. She also claimed that she had suffered injury to her thoracic spine and left shoulder. The latter claim has consistently been rejected, as the history below will demonstrate.

6. [6]

   It does not appear to be seriously in dispute (if it is in dispute at all) that the appellant now suffers from (to put it neutrally) a condition of the left shoulder. This is a condition called adhesive capsulitis (commonly known as “frozen shoulder”). At issue before the Review Panel was the degree of impairment caused to the appellant by reason of injuries she sustained in the motor accident. There is a complexity to that which will be discussed below. The appellant’s case is that she suffered injury to her left shoulder consequential upon the accepted injury to her cervical spine. She relies on the decision of Hall J in Nguyen v Motor Accidents Authority of New South Wales [2011] NSWSC 351; (2011) 58 MVR 296 in which Hall J said, at [99]:

7. [7]

   On the appellant’s behalf a distinction is drawn between “injury” or “direct injury” to the shoulder and “impairment”. Impairment, if of sufficient magnitude, would permit her to recover damages for non-economic loss. The appellant’s claim was for an assessment for permanent impairment for the purposes of s 131 of the MAC Act (see below). The question for determination by the Review Panel, therefore, was wider than whether she had suffered direct injury to the left shoulder.

The Motor Accidents Compensation Act 1999

1. [8]

   The long title of the MAC Act is:

2. [9]

   Chapters 3 and 4 of the MAC Act provide a detailed mechanism for assessment of claims for compensation for injury alleged to have been suffered consequential upon motor vehicle accidents about which there is disagreement (“a medical dispute” – see s 57) between the claimant and the compulsory third party insurer of the relevant motor vehicle. A detailed account of the provisions can be found in previous decisions of this Court: see Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 per Beazley JA; Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 per Gleeson JA. I can therefore confine references to the provisions of the MAC Act to those which specifically arise in the present case.

3. [10]

   By s 131 damages may not be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10 per cent. By s 44, the Authority may issue Guidelines with respect to a number of issues, including (relevantly) the assessment of the degree of permanent impairment of an injured person, and procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments. Permanent Impairment Guidelines issued on 1 October 2007 were provided to the Court (“the Guidelines”). They include specific reference to the assessment and permanent impairment claimed to have been caused by a motor accident where a subsequent impairment has intervened (cl 1.36).

4. [11]

   Part 3.4 of the MAC Act is directed to the medical assessment of injury. It applies to a medical dispute between a claimant and an insurer about, inter alia, whether the degree of permanent impairment of an injured person as a result of injury caused by a motor vehicle accident is greater than 10 per cent (s 58(1)(d)). Section 59 provides for the appointment of medical assessors, to whom medical disputes are referred for assessment (s 60) and who are required (s 61(1)) to give a certificate as to the matters referred for assessment. Although a certificate is, with some exceptions, conclusive evidence in any court or any medical assessment of the matters certified (s 61(2)), a matter previously referred for assessment may, by s 62(1)(a), be referred by any party to the medical dispute on one or more occasions for further assessment, but only on the grounds of deterioration of the injury or additional relevant information about the injury. That is further qualified by s 62(1A), which provides:

5. [12]

   A party to a medical dispute that has been the subject of assessment under s 60 may apply to the proper officer of the Authority to refer the medical assessment to a Review Panel (s 63(1)). Such an application may only be made on the ground that the assessment was incorrect in a material respect (s 63(2)). If satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect the proper officer is to arrange for the application to be referred to a Review Panel of three medical assessors (s 63(3)). Such a review is not limited to the aspects of assessment said to be incorrect, but is to be by way of a new assessment of all matters with which the medical assessment is concerned (s 63(3A)). The Review Panel may confirm the certificate of the medical assessor or revoke the certificate and issue a new certificate (s 63(4)).

6. [13]

   By s 65 medical assessments are subject to relevant provisions of the Guidelines issued under s 44.

Background facts and procedural history

1. [14]

   As indicated above, the appellant was involved in a motor accident on 18 November 2010. The vehicle at fault was a vehicle insured by Allianz. From 25 November 2010 the appellant received medical treatment and physiotherapy. (It will be necessary to make further mention of the physiotherapy notes.) What followed is a long and tortured saga in which the appellant has persistently sought to recover damages for non-economic loss under s 131. In order for her to do so, it was necessary that she be assessed as suffering more than 10 per cent permanent impairment.

2. [15]

   On 20 April 2011 the appellant completed a Personal Injury Claim Form. She identified the injuries from the accident from which she suffered as:

3. [16]

   An accompanying handwritten medical certificate dated 19 April 2011 of the appellant’s general practitioner, Dr Todorovic, gave a description of the injury as:

4. [17]

   What took place between the appellant and Allianz from then until December 2012 is not disclosed in the evidence. The appellant was examined, and the degree of permanent impairment assessed, by medical practitioners to whom she was referred on behalf of Allianz; and she was similarly examined, and her degree of permanent impairment assessed, by medical practitioners to whom she was referred by solicitors acting for her. What is clear is that a medical dispute arose and that the dispute concerned the degree of permanent impairment (if any) suffered by the appellant. On 19 December 2012 the appellant filed an Application for Assessment of a Permanent Impairment Dispute on the prescribed form. She nominated the injuries in respect of which she sought assessment as soft tissue injury to the cervical, lumbar and thoracic spine, and to the left shoulder, and psychological injury, and the area of dispute as the degree of permanent impairment. She provided a report by Dr David Millons dated 20 June 2012. Dr Millons found that the appellant had sustained minor whiplash injury to the cervical spine, non-verifiable radicular complaints of the left upper limb, “[p]ossible impingement problems left shoulder”, and “[p]ossible minor soft tissue injury lumbar spine”.

5. [18]

   Allianz filed a Reply to the Application. It pointed out that, in the Personal Injury Claim Form lodged on 20 April 2011, the appellant had made no mention of any injury to her left shoulder, and neither had Dr Todorovic.

6. [19]

   The dispute was referred to a medical assessor, Dr Rosenthal. Dr Rosenthal examined the appellant. On 8 May 2013 he issued a certificate. He listed the injuries to be assessed as:

7. [20]

   Dr Rosenthal found that the injuries to the cervical spine and lumbar spine were caused by the motor accident, but that the injuries the appellant claimed to have suffered to the thoracic spine and left shoulder were not so caused. He assessed the appellant’s total whole person impairment resulting from the injuries to the cervical and lumbar spine as 10 per cent (5 per cent attributable to each of the cervical and lumbar spine), and therefore certified that the appellant’s injuries did not give rise to a permanent impairment of greater than 10 per cent for the purposes of s 131 of the MAC Act. That assessment is not in issue in these proceedings.

8. [21]

   Pursuant to s 63(1) of the MAC Act, the appellant sought review of Dr Rosenthal’s assessment. In a written submission included in the application, she contended that Dr Rosenthal’s assessment was incorrect in a material respect because he had not made the assessment in accordance with the decision of Hall J in Nguyen. On 8 August 2013 the proper officer dismissed the application, being not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. She gave reasons for that decision. That decision is not in issue in these proceedings.

9. [22]

   On 17 November 2014, pursuant to s 62, the appellant filed an Application for Further Assessment of a Permanent Impairment Dispute. She provided an additional medical report, which the proper officer was satisfied contained additional relevant information which was capable of materially altering the previous outcome (s 62(1A) of the MAC Act). The application was granted, and the appellant was assessed by a medical assessor, Dr Mohammed Assem. The appellant again listed the same four injuries, that is, soft tissue injury to the cervical, lumbar and thoracic spine, and to the left shoulder, and identified the area of dispute as the degree of impairment arising from each.

10. [23]

    On 6 June 2015 Dr Assem issued a certificate in terms identical to that of Dr Rosenthal, that is, certifying that the appellant suffered soft tissue injury to the cervical and lumbar spine, giving rise to 10 per cent whole person impairment, and that soft injury to the thoracic spine and left shoulder were not caused by the motor vehicle accident. That meant that, again, the appellant’s injuries did not meet the threshold required by s 131 for an award of damages for non-economic loss. That assessment is not in issue.

11. [24]

    On 24 September 2015 the appellant lodged a second Application for Further Assessment of a Permanent Impairment Dispute. She again identified soft tissue injury to the cervical, lumbar and thoracic spine, and to the left shoulder, and the area of dispute as the degree of impairment arising from each. On 19 November 2015 the proper officer declined to refer the application for further medical assessment. She was:

12. [25]

    On 4 March 2016 the appellant lodged her third Application for Further Assessment of a Permanent Impairment Dispute. She identified the injuries and area of dispute in the same terms as previously. On 7 July 2016 the proper officer referred the application for further medical assessment to Dr Assem. On this occasion she was satisfied:

13. [26]

    Dr Assem reviewed medical records, the records of the physiotherapist from whom the appellant had received treatment, and reports of medical practitioners who had examined the appellant at the request of Allianz. Included in the records of the physiotherapist were clinical notes and a diagram (“a pictogram”), which apparently came into existence on 25 November 2010, which Dr Assem interpreted to indicate:

14. [27]

    Dr Assem examined the appellant. He reported his conclusions relevantly as follows:

15. [28]

    As before, Dr Assem found that the soft tissue injuries to the cervical and lumbar spine were caused by the motor accident, but that soft tissue injury to the thoracic spine and left shoulder were not. Nevertheless, he found that the permanent impairment caused to the cervical spine was 7 per cent, and that caused to the lumbar spine was 5 per cent, giving a “final % permanent impairment” of 12 per cent. Accordingly, Dr Assem certified that the injuries caused to the appellant by the motor accident gave rise to permanent impairment of greater than 10 per cent.

16. [29]

    Pursuant to s 63 of the MAC Act, Allianz sought review of Dr Assem’s assessment. It identified the “material respects” in which it contended that the assessment was incorrect as the failure to apply cl 1.36 of the Guidelines, and taking into account improper and irrelevant considerations. As mentioned above, cl 1.36 of the Guidelines deals with the evaluation of permanent impairment that is complicated by the intervention of a subsequent injury to the same region of the body of which assessment is required. Allianz complained that Dr Assem had failed to calculate the degree of impairment caused by the “subsequent and unrelated injury”, that is, the adhesive capsulitis.

17. [30]

    On 26 September 2016 the proper officer found that there was reasonable cause to suspect that Dr Assem’s certificate was incorrect in a material respect. Pursuant to s 63(3) she accordingly referred to Allianz’s application to a Review Panel.

18. [31]

    The Review Panel did not examine the appellant. It based its assessment on the documentary evidence. On 9 January 2017 the Review Panel issued its certificate. Consistently with the previous assessments of Drs Rosenthal and Assem, the Review Panel found that the motor accident was a cause of soft tissue injuries to the cervical and lumbar spines, but was not a cause of injury to the thoracic spine or the left shoulder. It assessed the degree of impairment of each of the cervical and lumbar spines as 5 per cent, giving a whole person impairment of 10 per cent, insufficient to permit the appellant to recover damages for non-economic loss under s 131. (The certificate states that the whole person impairment resulting from the lumbar spine injury was 0 per cent, but it was not in contest that this was an error and should have been 5 per cent.) Since this certificate is the subject of the present proceedings, it is necessary further to examine the reasoning contained therein.

19. [32]

    The Review Panel began by identifying the dispute referred for assessment as:

20. [33]

    The Review Panel noted that the ambulance report of paramedics who treated the appellant at the scene of the motor accident recorded no complaint of injury to the left shoulder, and that the appellant’s complaints then were of right side and jaw pain, head and neck pain. Similarly, the Review Panel noted, clinical records of the Shoalhaven Hospital, where the appellant was treated after the accident, made no reference to any injury to the left shoulder. Her complaints there recorded were of neck pain and low back pain.

21. [34]

    The Review Panel referred to reports of Dr Dalton, a consultant in Rehabilitation Medicine, to whom the appellant had been referred for examination on behalf of Allianz. Dr Dalton had stated that there was no reference in the clinical notes of the appellant’s physiotherapist (Mr Stahlhut) to left shoulder pain. The Review Panel observed that Mr Stahlhut had noted:

22. [35]

    The Review Panel observed that the physiotherapy notes showed that, in November 2010 the appellant was complaining of “posterior cervical and bilateral periscapular pain”, and that the “pain pictogram” showed:

23. [36]

    The Review Panel noted reports of Dr Todorovic and said that those notes did not mention left shoulder pain until 19 April 2011.

24. [37]

    The Review Panel then noted reports of Dr Bodel (an orthopaedic surgeon to whom the appellant had been referred for assessment by her own solicitors) of 23 July 2015. Dr Bodel stated that the appellant was:

25. [38]

    The Review Panel then noted a “clear documented injury” to the appellant’s cervical spine causing neck pain which, it accepted, was causally related to the motor accident. It then said:

26. [39]

    The Review Panel then specifically considered the soft tissue injury to the left shoulder. It said:

27. [40]

    The Review Panel, like the previous assessors, found that soft tissue injury to the cervical and lumbar spine had been caused by the accident, but that soft tissue injury to the thoracic spine and the left shoulder had not.

28. [41]

    Accordingly, the Review Panel revoked the certificate issued by Dr Assem on 8 August 2016 and issued a new permanent impairment certificate reflecting its findings. This is the certificate of which the appellant sought judicial review under s 69 of the Supreme Court Act, and is the subject of the present appeal.

29. [42]

    As this point it is apposite to comment on the nature of the jurisdiction invoked on behalf of the appellant. Relief under s 69 of the Supreme Court Act is available only for jurisdictional error or error of law on the face of the record. It is apparent that no attention was paid in the submissions in the Supreme Court to the limited nature of the jurisdiction, and no more attention was paid to it in this Court. The result has been, in the Supreme Court, that the primary judge was not asked to deal with s 69 questions, and, in this Court, a descent into arguments that seek to cavil with the factual conclusions reached by the Review Panel, and to identify errors of fact that cannot qualify either as jurisdictional error or error of law on the face of the record.

The primary judgment

1. [43]

   The primary judge outlined “four substantive errors” in the reasoning of the Review Panel asserted on behalf of the appellant. In three respects the appellant claimed that the Review Panel had failed to perform its statutory task. They were:

   1. (1)

      failing to “consider, deal with or engage with” the appellant’s substantive argument on causation, in particular by failing adequately to consider Dr Assem’s reasons for issuing the certificate of 8 August 2016;

   2. (2)

      applying a test for the assessment of personal injury that was contrary to law; and

   3. (3)

      failing to apply the Guidelines in the assessment of the appellant’s injury.

2. [44]

   The primary judge summarised the argument advanced in respect of each ground. In support of the first ground, it was argued on behalf of the appellant that the Review Panel failed to take into account Dr Assem’s finding that the appellant’s shoulder condition was caused by referred pain rather than a direct injury in the motor vehicle accident. Dr Assem had said:

3. [45]

   In respect of the second ground it was argued that the Review Panel proceeded on a wrong basis because it:

4. [46]

   In respect of the final ground it was argued that the Review Panel deprived the appellant of the opportunity to give an account of her history and symptoms. As indicated above, that contention is no longer pressed.

5. [47]

   As will be explained below, the argument in relation to the first and second grounds are capable of being seen as assertions of jurisdictional error, although that is not how it appears to have been put to the primary judge. It is difficult to see how the argument in support of the third and fourth grounds could be assertions of error within s 69.

6. [48]

   The primary judge rejected each argument. As to Ground 1, she noted that each application for review [assessment] lodged by the appellant claimed the same four areas of soft tissue injury, one of which was injury to the left shoulder. In those circumstances it could hardly be said to have been an error for the Review Panel to determine whether there had (or had not) been such an injury. She rejected a complaint that the Review Panel failed to have regard to Dr Assem’s assessment. That disposed of Grounds 1 and 2. As to the third ground, the primary judge noted Allianz’s submission that challenged Dr Assem’s finding of referred pain. She concluded:

7. [49]

   She held that the Review Panel was not obliged to conduct a clinical examination of the appellant.

8. [50]

   That disposed of Grounds 3 and 4.

The appeal to this Court

1. [51]

   With that rather lengthy background, the issues on the appeal may be disposed of more economically. The appellant’s principal quarrel with the decision of the primary judge was stated to be in her finding, at [67] (extracted above), that it lay within “the purview” of the Review Panel to determine, in its clinical judgment, that there was no impairment arising from the cervical spine or from any injury to the left shoulder.

2. [52]

   The grounds of appeal as pleaded are:

3. [53]

   It is not entirely easy to relate the argument advanced to the grounds as pleaded. In fact, the argument was a re-agitation of the attack on the Review Panel’s determination. A recurring theme of the argument was the proposition that the Review Panel confined its attention to whether there was a direct injury to the appellant’s left shoulder, and did not consider the wider proposition that the appellant’s shoulder condition resulted from the acknowledged direct injury to her cervical spine.

4. [54]

   It was then argued that there were factual inaccuracies in the Review Panel’s reasoning – specifically, that the pain and restriction in the left shoulder “did not present until March 2011”, that such restriction was not evident in the documentation prior to March 2011, and that there was contemporaneous information to support the appellant’s history to Dr Bodel that her left shoulder was abnormal from the time of the motor accident.

5. [55]

   This was, in fact, the centrepiece of the argument advanced on behalf of the appellant. The proposition that shoulder pain did not present until March 2011 could be seen to be factually wrong, it was contended, by reference to evidence before the Review Panel. It was therefore argued that the finding was one for which there was no evidence. A finding of fact for which there was no evidence is, it was contended, an error of law, and, further, that that error was an error of law on the face of the record.

6. [56]

   Transcribed into language appropriate to the s 69 jurisdiction, the appellant’s argument, it seems to me, devolved into three strands:

7. [57]

   The first proposition, if made out, would establish a denial of procedural fairness and therefore jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348. The second proposition, if made out, would establish a constructive failure to exercise jurisdiction – that is, jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81]. The third proposition, that findings of fact for which there is no evidence amount to error of law on the face of the record, is more controversial and will be addressed below.

8. [58]

   Neither party referred to the decision of this Court in McGiffen. Mr McGiffen was injured while riding a motorcycle. He suffered serious leg injuries that, he claimed, had ongoing effects. In his initial claim form, he nominated his injuries, which included “secondary development of back injury”. When the relevant degree of permanent impairment was denied by the insurer, he made a claim for assessment of permanent impairment. He included in his list of injuries spinal injury “consequent upon joint derangement”. A medical assessor rejected his claims as did a Review Panel.

9. [59]

   Neither the medical assessor nor the Review Panel addressed what was in effect a claim for delayed onset of back pain resulting from his leg injury. Both rejected his contention on the basis that his first complaints of back pain were made many months after the motor accident. On judicial review a judge of the Supreme Court found that the Review Panel only partly asked the question it was required to answer. This Court, on appeal, said:

10. [60]

    Whether it is correct that the appellant had advanced her case in the clear terms now proposed is, in my opinion, questionable. As can be seen from the record of numerous applications and claims made by her, she consistently asserted “soft tissue injury” to the left shoulder. The primary judge noted this at [65] of the judgment. On one occasion (the application for review of Dr Rosenthal’s assessment in May 2013) the appellant adverted to Nguyen and complained that Dr Rosenthal had failed to perform his assessment in accordance with that decision. Otherwise, there is little in the material to support the assertion that she put her case in the way she now claims.

11. [61]

    Whether she did in fact advance her case on a Nguyen basis need not, however, be a cause of diversion. That is because no such question was raised on behalf of Allianz. Allianz was content to respond to the argument by reference to the approach taken by the Review Panel, which, it contended, did precisely what the appellant claims it ought to have done. The question is therefore whether the Review Panel did in fact address the issue of referred pain as distinct from direct injury caused in the motor accident.

12. [62]

    That can be answered by a reference to a single paragraph in the reasons given by the Review Panel:

13. [63]

    The appellant then contended that, in reaching its determination, the Review Panel failed to ask itself the correct question. That is the second strand in the appellant’s argument. The argument was that the Review Panel directed its attention, not to impairment, which is the focus of a permanent impairment assessment for the purposes of s 131, but on “injury” or “direct injury” to the shoulder. Impairment may result from direct injury, or, as explained by Hall J in Nguyen, from referred pain from injury to a different body part. But, on the appellant’s argument, the Review Panel confined its attention to “injury” or “direct injury” and overlooked consequential injuries.

14. [64]

    Senior counsel pointed to a number of discrete passages in the reasons. These included:

15. [65]

    Allianz’s response was to rely on the Guidelines, which, it was submitted, make “restricted movement the sole parameter by which impairment is measured”; assessment of impairment required evidence of “restriction of range of motion” (of which there was no evidence).

16. [66]

    That, in my opinion, is significantly to overstate the effect of the Guidelines. The relevant part of the Guidelines cites the American Medical Association Guides to the Evaluation of Permanent Impairment, Fourth Edition, Third Printing (1995), which relevantly states as follows:

17. [67]

    Nevertheless, there is difficulty in accepting the appellant’s argument that the Review Panel failed to examine impairment as distinct from direct injury. The argument fails to have regard to the reasons of the Review Panel as a whole. It is expressly contradicted by more than one passage in the reasons, notably the passage extracted above, in which the Review Panel considered indirect inquiry, and a number of others in which impairment is considered.

18. [68]

    One flaw in the appellant’s argument is that it extracts from the reasons individual sentences and passages, and overlooks or ignores others. The reasons are to be read as a whole. When they are, it is clear, in my opinion, that the Review Panel directed its attention to impairment.

19. [69]

    In my opinion the Review Panel did not fail to address the appellant’s case that, as a consequence of the motor accident, she suffered referred pain in the left shoulder. Nor did it address the wrong question by focusing erroneously only on direct injury. Jurisdictional error is not established.

20. [70]

    Before passing from the question of jurisdictional error, it is appropriate to make one further observation. At the commencement of these reasons I noted a “complexity” to the argument concerning the assessment of impairment. That complexity arises from the adhesive capsulitis from which the appellant now suffers. That is the relevance of cl 1.36 of the Guidelines, which provide for assessment of injuries caused by a motor accident that are affected by subsequent injuries or conditions. The application of cl 1.36 would have involved an assessment of the appellant’s shoulder condition from the date of the motor accident to the date (if known) of the onset of the adhesive capsulitis. Clause 1.36 was invoked by Allianz in its application for review of Dr Assem’s assessment. It has not been invoked on behalf of the appellant. The appellant does not now contend that the Review Panel was asked to make an assessment under that clause, nor that it was under a duty to do so, and failed to discharge that duty.

21. [71]

    The second strand of the appellant’s argument depends upon a proposition that the Review Panel made findings of fact for which there was no evidence. The findings of fact were said to be:

22. [72]

    These statements, it was argued, were not only factually incorrect, they failed to have regard to certain aspects of the evidence which, it was argued, recorded pain in the left shoulder prior to March 2011. The argument then delved into the physiotherapy and medical records to support the proposition that there was evidence of pain in the left shoulder prior to March 2011. Reference was made to the pictogram in the physiotherapy notes, and to the record of the physiotherapist dated 18 May 2011:

23. [73]

    Allianz did not take issue with the proposition that a finding of fact for which there was no evidence constitutes error of law on the face of the record. The proposition, however, cannot be allowed to pass unexamined.

24. [74]

    It may be accepted that a finding of fact for which there is no evidence constitutes an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]. That is not the same as saying that such a finding constitutes an error of law on the face of the record. The parameters of “error of law on the face of the record” have not been authoritatively defined. There is no clear line that marks out an error of law as one that is “on the face of the record”.

25. [75]

    While, by s 69(4), “the record” includes the reasons for the decision in question, it is clear that “the record” does not include the transcript of the proceedings, the evidence, or the submissions: Craig v The State of South Australia (1995) 184 CLR 163 at 180 ff; [1995] HCA 58; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [29]-[30]; Geftlic v Merhi [2011] NSWCA 241.

26. [76]

    The question was again adverted to in McGiffen. The Court said:

27. [77]

    The appellant’s submissions trawled through the medical and physiotherapy evidence in order to establish the proposition that there had been complaints by the appellant of pain in the left shoulder prior to March 2011. The argument also required interpretation of that evidence – for example, the physiotherapy note of “left shoulder pain again” and of the pictogram in the notes. That exercise is beyond the scope of a determination of whether there has been “error of law on the face of the record”. I am satisfied, however, that the error of law for which the appellant contends (even if it is error of law) falls on the wrong side of the divide referred to in [74] above. No error of law on the face of the record has been established.

28. [78]

    The appellant has not demonstrated any entitlement to relief under s 69 of the Supreme Court Act. The primary judge was correct to dismiss the summons.

29. [79]

    The orders I propose are:

    1. (1)

       Appeal dismissed.

    2. (2)

       Appellant to pay the costs of the appeal.