Partridge v IAG Limited t/as NRMA Insurance

1. [1]

   HIS HONOUR: Diane Partridge was involved in a motor vehicle accident on 23 December 2015. IAG Limited was the licensed compulsory third party insurer of the vehicle at fault. Ms Partridge claimed damages pursuant to the Motor Accidents Compensation Act 1999 as a result of the injuries allegedly sustained by her.

2. [2]

   Ms Partridge’s entitlement to damages for non-economic loss pursuant to s 131 of the Act was disputed, and therefore a medical assessment of her degree of permanent impairment was required to ascertain whether her whole person impairment exceeded 10%. She made an application to the Medical Assessment Service (“MAS”) for assessment of her whole person impairment, pursuant to section 58(1)(d) of the Act. She alleged that she had sustained a cervical spine injury and a left wrist injury, as well as vertigo, tinnitus and hearing loss, as a result of the motor accident.

3. [3]

   Ms Partridge was assessed by Assessor Robert Payten. On 15 November 2017, Dr Payten concluded that her vertigo, hearing loss and tinnitus gave rise to 3% whole person impairment.

4. [4]

   Ms Partridge was also assessed by Assessor Paul Myers. On 28 November 2017, Dr Myers concluded that her left wrist injury was caused by the accident and gave rise to whole person impairment of 3%. He further found that the alleged cervical spine injury was not causally related to the accident.

5. [5]

   A Combined Certificate issued on 7 December 2017 certifying that Ms Partridge’s total whole person impairment in relation to the accident was 6%.

6. [6]

   Ms Partridge applied for a review of Dr Myers’ assessment, pursuant to s 63 of the Act, on the grounds that he had erred in his assessment of her cervical spine. The Proper Officer of MAS granted the review and allocated the matter to a medical review panel.

7. [7]

   On 18 May 2018, Ms Partridge made a written submission to MAS that the medical review panel should examine her for themselves, due to the fact that her history of neck pain was still in issue.

8. [8]

   The medical assessment on review was conducted by a medical review panel on 15 June 2018, constituted by Assessors Margaret Gibson, Michael Couch, and Shane Moloney (“the review panel”), at the request of the Proper Officer.

9. [9]

   The review panel did not examine Ms Partridge. She was given no notice of the panel’s decision not to examine her.

10. [10]

    In its decision dated 10 July 2018, the review panel found that Ms Partridge had sustained a soft tissue injury to her left wrist as a result of the subject motor accident, and that it gave rise to whole person impairment of 4%. The review panel determined that the injury to the cervical spine (which had been referred to it for assessment) was not caused by the motor accident, and it did not proceed to calculate the degree of whole person impairment arising from such injury.

11. [11]

    It is in these circumstances that, by her amended summons filed in court on 16 May 2019, Ms Partridge seeks the following relief:

    1. (1)

       An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and Review Panel Certificate of the third defendant, the medical assessors review panel as was constituted by the State Insurance Regulatory Authority (“SIRA”), the second defendant, namely, the assessment dated 10 July 2018, made purportedly pursuant to sections 63 and 61 of the Motor Accidents Compensation Act 1999 (“the review panel decision”).

    2. (2)

       An order in the nature of mandamus remitting the matters the subject of the review panel decision and the Review Panel Certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel for determination of the matter according to law.

    3. (3)

       If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on the Review Combined Certificate or the review panel decision or either of them until the final determination of these proceedings or until further order.

Errors

1. [12]

   Ms Partridge alleges that the review panel made a series of errors. Some of them appear to overlap. They are in summary as follows:

   1. (1)

      The review panel constructively failed to exercise its jurisdiction and statutory function, in that it did not conduct its own examination of the claimant despite it being possible to do so, and particularly in circumstances where more than six months had elapsed since the earlier assessment with Dr Myers so that the panel did not have evidence of Ms Partridge’s condition and presentation at the time of its assessment and Dr Myers had not undertaken the necessary measurements or calculations to enable an assessment of the degree of whole person impairment of Ms Partridge’s cervical spine to be conducted. Ms Partridge had specifically submitted that a re-examination should take place.

   2. (2)

      Further and in the alternative, in the event that Ms Partridge’s 18 May 2018 submission was not forwarded to the review panel by SIRA, its decision not to re-examine her was made on a false premise regarding her wishes in this regard. The decision not to examine a claimant cannot properly be exercised on a false belief that the claimant does not seek examination. There was therefore a constructive failure to exercise jurisdiction.

   3. (3)

      The review panel failed to undertake its own assessment of Ms Partridge’s cervical spine.

   4. (4)

      The review panel failed to respond to a substantial and clearly articulated argument advanced by Ms Partridge in submissions dated 22 January 2018, which were before the review panel, namely that the assessment conducted by Dr Myers was affected by legal error, there was evidence of immediate onset of neck pain following the motor accident and Dr Myers found significantly restricted movement in the cervical spine but failed to assess the actual ranges of motion so as to enable a whole person impairment assessment to be calculated.

   5. (5)

      The review panel failed to respond to a substantial and clearly articulated argument by Ms Partridge in her solicitor’s letter dated 18 May 2018 that the review panel should examine her for themselves.

   6. (6)

      The review panel failed to afford procedural fairness to Ms Partridge by not giving her advance notice of its intention to proceed without an examination thereby denying her the opportunity to put on any further evidence or submissions in lieu of the information she would have been able to provide in person if examined. In particular, Ms Partridge was denied the opportunity to explain in further detail why she objected to the review panel proceeding without an examination, to correct any errors in the brief reasons given by Dr Myers, to flesh out the detail which was missing from the brief reasons given by Dr Myers and to update the description of her circumstances and symptoms.

   7. (7)

      The decision of the review panel was afflicted by legal unreasonableness in that no reasonable review panel could have properly denied Ms Partridge a personal interview and re-examination, given the significance of the issue of her own evidence to the issue of causation, and the significance that the review panel’s impressions of her may have had on acceptance or otherwise of her evidence.

   8. (8)

      The review panel failed to comply with Clause 1.41 of SIRA’s Motor Accidents Permanent Impairment Guidelines (made pursuant to section 44(1)(c) of the Act) in that it failed to bring its findings of inconsistencies to Ms Partridge’s attention and to give her a chance to respond.

   9. (9)

      The review panel was obliged to set out lawful reasons for its determination pursuant to section 61(g) of the Act and clause 16.24 of the SIRA’s Medical Assessment Guidelines dated 1 October 2008 made pursuant to sections 44(1)(d) and 65(1) of the Act, in particular as follows:

   10. (10)

       The review panel wrongly fixated on the absence of contemporaneous evidence relating to Ms Partridge’s neck injury in circumstances where both the panel and Dr Myers had noted her history that included an injury to her neck in the accident and ongoing pain in her neck thereafter. The review panel impermissibly treated the contemporaneous medical material, or the absence thereof, as determinative. Further, the panel impermissibly sought to rely solely on contemporaneous medical material and not on Ms Partridge’s case and/or her evidence. It failed to consider or take this into account as it was required to do. Further, the review panel placed undue or disproportionate weight on the alleged lack of contemporaneous documentation regarding the neck injury and the decision is therefore legally unreasonable.

2. [13]

   Ms Partridge therefore contended that the Review Panel has committed error in law or fallen into jurisdictional error and/or has constructively failed to exercise its jurisdiction in respect of one or more of the above grounds of judicial review and the review panel decision and certificate are accordingly invalid and should be set aside.

The evidence

1. [14]

   Ms Partridge relied upon the affidavit of Justin Timothy Stack sworn on 11 December 2018. Mr Stack was not cross-examined.

2. [15]

   In her Application for Assessment of a Permanent Impairment Dispute by the Medical Assessment Service dated 19 July 2016, Ms Partridge described the injuries sustained by her in the accident as including a “soft tissue” injury to the “neck area” and “whiplash”. The medical certificate attached to the application was given by Ms Partridge’s general practitioner following an examination of her on 28 December 2015, five days following the accident. The diagnosis referred to in the certificate described whiplash injury to the cervical spine and a recommendation that X-rays be obtained of that location.

3. [16]

   Dr Alan Hopcroft, a general surgeon specialising in orthopaedics, examined Ms Partridge on 2 May 2017. He obtained a history of how she felt at the time of her original presentation to her general practitioner, including “vertigo and pain extending up the right side of her neck and into the right side of her face and head”. On examination, Dr Hopcroft found that Ms Partridge had “pain to deep palpation in her cervical spine bilaterally with restriction in right and left lateral bending and left lateral rotation asymmetrically” as well as “most significant restriction in movement in [sic] extension”.

4. [17]

   A report prepared by Dr Joseph Scoppa dated 9 July 2017, following his examination of Mr Partridge on 4 July 2017, contained a similar history, including contemporaneous complaints of “persistent headache and neck pain”.

5. [18]

   Ms Partridge’s own MAS Statement dated 25 July 2017 was also consistent with what she reported to these medical practitioners. Under the heading “Injuries and Disabilities”, Ms Partridge said this:

6. [19]

   Dr Payten’s certificate issued following his examination of Ms Partridge on 13 November 2017 recited the history given by her. It included the following:

7. [20]

   Dr Myers’ certificate issued following his examination of Ms Partridge on 23 November 2017 recited a similar history. It was relevantly as follows:

8. [21]

   Dr Myers’ findings on clinical examination were as follows:

9. [22]

   Dr Myers’ conclusions were expressed in the following terms:

10. [23]

    It is unnecessary in detail for present purposes to record details of the written submissions provided by Ms Partridge’s lawyers in support of her application for review of Dr Myers’ assessment. It is sufficient to observe that those submissions included reference to the fact that Ms Partridge had made the complaints of neck pain in the ways and to the extent referred to in the medical reports and the two assessments of Drs Payten and Myers.

11. [24]

    By letter dated 7 May 2018, Margot Undercliffe, the Review Proper Officer, wrote to Mr Stack indicating that the Review panel held a teleconference on 3 May 2018 and that it required further information. The Proper Officer’s letter specifically said this:

12. [25]

    Significantly for present purposes, Mr Stack responded on 18 May 2018 in these relevant terms:

13. [26]

    Other than an acknowledgment by the Proper Officer in her letter to Mr Stack dated 21 May 2018 of the receipt of Dr Fisher’s clinical notes, Mr Stack’s request that Ms Partridge be examined was neither responded to by the Proper Officer nor taken up by the Review Panel.

14. [27]

    The Review Panel Certificate was issued on 10 July 2018. It relevantly contains the following passages:

15. [28]

    The Review Panel determined that the total percentage whole person permanent impairment for assessed injuries caused by the accident was 4%. The Review Panel explained that its findings in relation to the degree of permanent impairment were different to the findings stated in the Permanent Impairment certificate issued by Dr Myers because the panel assessed 4%, not 3%, based on Dr Myers’ clinical examination findings. The Review Panel therefore determined that the original certificate should be revoked and that a new Permanent Impairment certificate should be issued.

Statutory scheme and procedural guidelines

1. [29]

   Section 44(1) of the Motor Accidents Compensation Act is as follows:

2. [30]

   Part 3.4 of the Act is concerned with medical assessment. “Medical assessment matters” are defined in s 57 to mean any of the matters referred to in s 58. That section provides as follows:

3. [31]

   Medical assessors are defined as persons appointed under Part 3.4 to make medical assessments under that Part. Pursuant to s 59, the Authority is required to appoint medical practitioners and other suitably qualified persons to be medical assessors. Section 63 provides for the referral of a medical assessment by a single medical assessor for review by a panel of medical assessors. That section is in the following terms:

4. [32]

   The Medical Assessment Guidelines issued under s 44(1)(d) of the Act with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Part 3.4 of the Act include the following:

5. [33]

   Clauses 1.18, 1.21 and 1.41 of the Motor Accident Permanent Impairment Guidelines (effective from 1 June 2018) should also be noted. They provide respectively as follows:

6. [34]

   The Motor Accidents Authority Medical Assessment Service has issued a Review Panel Practice Note 3/2005 dealing with the Review Panel Process. The Practice Note indicates that it was provided to Review Panellists in accordance with s 65(2) of the Act “to promote accurate and consistent [reviews of] medical assessments”. Clause 1 is as follows:

7. [35]

   Clause 3 contains the following information:

8. [36]

   Finally, clause 4 of the Practice Note provides in part as follows:

Consideration

1. [37]

   Although Ms Partridge has articulated several ways in which she contends that the Review Panel made errors, it is sufficient in my view to dispose of the appeal by reference to her complaint that it did not examine her in accordance with her request to do so. Whether formulated as an allegation of procedural unfairness or a constructive failure on the part of the Review Panel to exercise its statutory function or a failure to respond to a clearly articulated argument, the significant thrust of her contentions is that the Review Panel should have examined her when asked.

2. [38]

   Mr Stack’s letter was clear. His request that Ms Partridge be re-examined was either ignored or overlooked. It should not have been.

3. [39]

   The statutory scheme and procedural guidelines in this respect are clear. Some of these provisions are recorded earlier in these reasons. They were thoroughly and comprehensively reviewed by the Court of Appeal in Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22.

4. [40]

   In Boyce, a driver suffered injuries in a motor vehicle accident and brought proceedings in negligence against the other driver. The injured driver underwent separate assessments for different injuries. The defendant’s insurer applied for and was granted a review of a certificate relating to an injury to the driver’s bladder. The injured driver was notified of the review and invited to advise if she objected to the Review Panel proceeding under s 63A(3A) of the Act without examining her. Her solicitor twice informed the State Insurance Regulatory Authority that she did object. The Review Panel was not made aware of the objection and completed its assessment without conducting a re-examination. The Review Panel revoked the original certificate. The new assessment brought the injured driver’s combined whole person impairment below the 10% threshold for damages for non-economic loss set by s 131 of the Act.

5. [41]

   In Boyce, Sackville AJA said this:

6. [42]

   I am unable to discern any relevant basis upon which to distinguish Boyce from the present circumstances. Ms Partridge requested that she be re-examined. The correspondence between her solicitor and the proper officer makes this clear. What is less clear is why the request was not complied with or whether it was drawn to the attention of the Review Panel. However, nothing turns on the answer to either of these questions. Ms Partridge was not given the opportunity to provide further evidence or material concerning her condition to the Review Panel. That was at least a denial of procedural fairness.

7. [43]

   Nor is it germane for me to inquire what might have resulted if Ms Partridge had been re-examined. My role is not to determine whether re-examination might have had some or any impact upon the Review Panel’s ultimate conclusion. If Ms Partridge was denied procedural fairness, it cannot be demonstrated that the absence of fairness did not deprive her of the possibility of a successful outcome. In any event, as Basten JA said in Boyce at [74]:

8. [44]

   The first defendant did not contend that the grant of relief would be futile.

9. [45]

   It becomes in these circumstances strictly unnecessary to consider the other ways in which Ms Partridge has formulated her assault upon the Review Panel’s decision, including Ms Partridge’s challenge to the Review Panel’s certificate based upon what she contended was its undue or inappropriate reliance or emphasis upon an asserted absence of recorded contemporaneous complaints by her of neck pain. It is sufficient to note that a Review Panel will have fallen into error if its reasoning process indicates that the absence of such contemporaneous material has been treated as determinative: see, for example, Bradley v Insurance Australia Ltd (2015) 71 MVR 496; [2015] NSWSC 950; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888; McHenry v Insurance Australia Limited [2019] NSWSC 68; Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650; and Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211.

Relief

1. [46]

   Subject to any further or other orders for which either of the active parties in these proceedings might wish to contend, I consider that the following orders should be made:

   1. (1)

      Order that the Review Panel certificate dated 10 July 2018 be set aside.

   2. (2)

      Remit the matters the subject of the Review Panel decision and the Review Panel certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel to be dealt with according to law.

   3. (3)

      Order that the first defendant pay the plaintiff’s costs.