Insurance Australia Limited t/as NRMA Insurance v Koic

1. [1]

   HER HONOUR: This is a judicial review of the decisions of a medical assessor and of the proper officer of the State Insurance Regulatory Authority (“SIRA”).

2. [2]

   By summons filed 7 March 2019, the plaintiff seeks, firstly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and certificate of the third defendant, medical assessor Ian Meakin, dated 19 September 2018 (“the medical assessor’s decision”) made purportedly pursuant to s 61 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”); secondly, in respect of the medical assessor’s decision, leave to extend the time for commencing proceedings to the date of filing this summons pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); thirdly, an order in the nature of mandamus remitting the matters the subject of the medical assessor’s decision to the second defendant for reallocation of the matter to a different medical assessor for determination of the matter according to law; fourthly, an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the proper officer of the second defendant dated 21 December 2018, refusing to refer the medical dispute to a medical assessor’s review panel pursuant to s 63 of the MAC Act (“the proper officer’s decision”); and finally, an order in the nature of mandamus remitting the matters the subject of the proper officer’s decision to the second defendant for reallocation of the matter to a different proper officer for determination of the matter according to law.

3. [3]

   The plaintiff is Insurance Australia Limited t/as NRMA Insurance (“the insurer”). The first defendant is Veronica Koic. The second defendant is SIRA. The third defendant is Ian Meakin in his capacity as a medical assessor of SIRA. The second and third defendants have filed submitting appearances. The parties relied upon their joint court book. This judicial review is only concerned with the injury the plaintiff suffered to her left hip.

4. [4]

   On 17 March 2012, the first defendant was injured in a motor vehicle accident. The plaintiff is the CTP insurer of the vehicle at fault in the accident.

5. [5]

   Because the first defendant’s entitlement to monetary damages for non-economic loss was in dispute, a medical assessment of her degree of permanent impairment was required to ascertain whether her whole person impairment (“WPI”) exceeded 10%: see s 131 of the MAC Act.

6. [6]

   The first defendant made an application to the Medical Assessment Service (“MAS”) of the second defendant for assessment of her WPI pursuant to s 58(1)(d) of the MAC Act. The insurer lodged a reply to her application.

7. [7]

   The first defendant was assessed by medical assessor Ian Cameron. Assessor Cameron issued a certificate and reasons dated 15 March 2015 certifying that the first defendant sustained injuries to the cervical spine, lumbosacral spine and right shoulder, and that her degree of permanent impairment did not exceed 10%.

8. [8]

   The first defendant subsequently lodged an application for further assessment of a permanent impairment dispute pursuant to s 62 of the MAC Act on the basis of new additional relevant information about the injury, accompanied by evidence and submissions.

9. [9]

   The insurer lodged a reply to the first defendant’s application, which put in dispute the issues of causation and permanent impairment for each of the injuries to the cervical spine, lumbar spine and right shoulder. The application was also accompanied by evidence and submissions.

10. [10]

    The third defendant, medical assessor Ian Meakin (“the medical assessor”), was appointed to re-assess the first defendant. On 19 September 2018, the medical assessor issued a decision certifying that the first defendant sustained scarring, as well as injuries to the cervical spine, thoracic spine, lumbar spine, right shoulder, left shoulder and left hip, giving rise to 11% WPI.

11. [11]

    The insurer applied for a review of the medical assessor’s assessment pursuant to s 63 of the MAC Act. On 21 December 2018, the proper officer dismissed the application for review and issued its decision.

12. [12]

    The insurer seeks an extension of time to file the judicial review in this Court. The application is not opposed. The insurer’s explanation for the delay is that after the medical assessor’s decision, the insurer unsuccessfully sought a review from the proper officer pursuant to s 63 of the MAC Act. The reasons for the proper officer’s decision are dated 21 December 2018. It is because the insurer availed itself of the review process within SIRA that it filed its judicial review in relation to the decision of the medical assessor out of time. It is my view that it is preferable for the insurer to seek review by way of the internal procedures available under the MAC Act before applying for judicial review in this Court. This is what the insurer has done.

13. [13]

    As such, in the exercise of my discretion, I grant an extension of time up to and including 7 March 2019.

14. [14]

    Section 44(1)(c) of the MAC Act reads:

15. [15]

    Section 58(1)(d) relevantly reads:

16. [16]

    Section 60 of the MAC Act states that a “medical dispute” may be referred to the Authority for assessment under Part 4.3 of the MAC Act by either party to the dispute.

17. [17]

    Pursuant to s 61, a medical assessor is required to give a certificate as to the matters referred for assessment, which is then conclusive evidence of the matters certified.

18. [18]

    Section 62 of the MAC Act reads:

19. [19]

    The Medical Assessment Guidelines, made pursuant to ss 44(1)(d) and 65(1) of the MAC Act, apply to medical assessments conducted pursuant to the MAC Act and set out the procedure for review of assessments under Part 3.4.

20. [20]

    The Motor Accident Permanent Impairment Guidelines (“Permanent Impairment Guidelines”), effective 1 June 2018, are issued pursuant to s 44(1)(c) of the MAC Act and apply to assessments conducted by medical assessors.

21. [21]

    Section 133 of the MAC Act states that the assessment of permanent impairment is to be made in accordance with the Permanent Impairment Guidelines. Specifically, s 133 reads:

22. [22]

    Parts 1.2 and 1.5 to 1.7 of the Permanent Impairment Guidelines read:

23. [23]

    Parts 1.17 and 1.18 of the Permanent Impairment are so-called “helicopter provisions”. They read:

24. [24]

    In these proceedings, the plaintiff argues that each of the errors identified in the grounds in the summons constitute:

25. [25]

    All that is required for the plaintiff to establish his case and enliven the Court’s power to issue remedies is for the Court to find an error of law on the face of the record. Errors of law on the face of the record need not be errors going to jurisdiction.

26. [26]

    A medical assessor’s and Review Panel’s reasons form part of the record, because s 61(9) of the MAC Act requires it to give reasons.

27. [27]

    As to the issue of jurisdictional error, the plaintiff pleaded that the errors include a constructive failure to exercise jurisdiction.

28. [28]

    In Rodger v De Gelder (2015) 71 MVR 514 (“De Gelder”), the Court of Appeal stated at [95] per Gleeson JA (MacFarlan and Leeming JJA agreeing):

29. [29]

    The question for this Court is whether the plaintiff has established relevant error(s) of law on the face of the record or jurisdictional error(s) that warrant the Court to exercise its discretion to quash the decision. That is the nature of judicial review proceedings, as distinct from an appeal or review on questions of law, fact or discretion.

30. [30]

    In assessing the first defendant’s left hip, the medical assessor was to assess the anterior superior labral tear, acute soft tissue impaction injury, superior Iabral tear, gluteal enthesopathy, trochanteric bursitis and superolateral labral tear.

31. [31]

    Under the heading “History of the Motor Vehicle Accident”, the medical assessor stated:

32. [32]

    Under the heading “Consistency of Presentation”, the medical assessor stated:

33. [33]

    Under the heading “Relevant Imaging Studies and Other Investigations”, the medical assessor reviewed the available reports and various scans provided and outlined them as follows:

34. [34]

    Under the heading “Summary of Relevant Documentation Provided for the Initial Assessment”, the medical assessor relevantly stated:

35. [35]

    Under the heading “Summary of Relevant Additional Documentation Provided for the Further Assessment”, the medical assessor relevantly stated:

36. [36]

    Under the heading “Diagnosis and Causation”, the medical assessor concluded:

37. [37]

    Having provided reasons for his decision, the medical assessor determined that the first defendant suffered 2% WPI in relation to the left hip, with a combined WPI totalling 11%.

Judicial review generally

1. [38]

   This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari, which includes jurisdiction to quash the ultimate determination of a court or tribunal, including both a medical assessor and proper officer, if that determination has been made on the basis of an error of law on the face of the record. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970 (NSW).

Grounds of judicial review

1. [39]

   The insurer alleges that there are a number of jurisdictional errors and/or errors of law on the face of the record in both the medical assessor’s and the proper officer’s decision. Alternatively, the insurer alleges that the medical assessor and the proper officer constructively failed to exercise their statutory power and jurisdiction in making their decisions. The grounds of review in relation to the medical assessor’s decision are outlined in para 2 of the insurer’s summons. I will first consider grounds 2(a)-(b) together, followed by grounds 2(c)-(e) together, and finally ground 2(f). Although these grounds of appeal are all expressed slightly differently, they all concern causation.

(1) 2(a)-(b) - Causation

1. [40]

   The insurer submitted that in this case, the “medical assessment matter” before the medical assessor for assessment was “whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident was greater than 10%”: see s 58(1)(d) of the MAC Act. As such, an essential aspect of the statutory task involved determining causation of the relevant injuries.

2. [41]

   Clauses 1.5 to 1.7 of the Permanent Impairment Guidelines (reproduced earlier in this judgment) set out the requirements for making a finding as to causation of injuries which are the subject of medical assessments. Clauses 1.6-1.7 state the steps that must be taken by a medical assessor in relation to assessing causation.

3. [42]

   At p 15 of his decision, when assessing the left hip, the medical assessor stated:

4. [43]

   The insurer submitted that the medical assessor failed to comply with the Permanent Impairment Guidelines when determining causation. After stating that he agreed with the opinion that the discomfort in the first defendant’s left hip joint “relates to the congenital lesions on the neck/head junction of both hips and that one cannot get intra-articular labral pathology as a result of such an accident”, he nevertheless concluded that the left hip injury was caused by the accident.

5. [44]

   The reason the medical assessor gave for his conclusion was that he was “swayed by the evidence put forward by Dr Molnar” and the historical record that the left hip was injured at the time of the accident. The insurer submitted that this approach does not comply with the requirements under the Permanent Impairment Guidelines or common law.

6. [45]

   The insurer submitted that the medical assessor’s error is not mitigated by his reliance on Dr Molnar. The medical assessor referred to Dr Molnar’s reports at pp 4-5 of his report, noting that Dr Molnar had accepted right and left hip joint pathology as causally related to the motor vehicle accident, while also acknowledging the first defendant’s pre-existing congenital abnormality. The insurer submitted that these references also do not comply with the requirements of the Permanent Impairment Guidelines.

7. [46]

   According to the insurer, the medical assessor’s failure to address the issue of causation of the left hip injury as required under cls 1.5-1.7 of the Permanent Impairment Guidelines constitutes a constructive failure to exercise jurisdiction. As such, the medical assessment in relation to the left hip is invalid.

8. [47]

   The first defendant submitted that the medical assessor made no error of law in determining causation of the left hip.

9. [48]

   At the outset, the medical assessor identified that there was a dispute in respect of causation of the left hip injury. As p 4, he stated:

10. [49]

    The medical assessor continued by noting that the first defendant consulted her general practitioner, Dr Alexandratos, who referred her to a sports physician, Dr Saunders. The first defendant was eventually referred to an orthopaedic surgeon, Dr Molnar, who became her treating specialist and performed her operation.

11. [50]

    On p 5 of the decision, the medical assessor stated:

12. [51]

    The first defendant submitted that Dr Drummond reported on behalf of the insurer, and in his decision he addressed the issue of causation for the left hip.

13. [52]

    The medical assessor undertook a clinical examination of the first defendant as required by the Permanent Impairment Guidelines. He also considered and reviewed the documents which had been submitted. The first defendant submitted that the medical assessor’s statement of reasons shows a detailed analysis and overview of the available documents.

14. [53]

    As to the clinical examination and matters relating to consistency of presentation, at p 9 of his decision the medical assessor stated:

15. [54]

    The medical assessor then set out the relevant elements of the available documentary material relating to the first medical assessment, which included not only the reports of Dr Molnar, but also the opinion of Dr Drummond. The medical assessor then set out a further document review of the materials, including a summary of the reports of practitioners who addressed causation of the left hip injury, obtained after the first medical assessment and for the purposes of the medical assessor’s decision.

16. [55]

    The first defendant submitted that the medical assessor set out reasons in accordance with his statutory obligation. Those reasons set out his path of reasoning for his decision and address the causation dispute in a manner which the first defendant argued is appropriate for a finding as to causation.

17. [56]

    The first defendant argued that the medical assessor’s conclusion under “Diagnosis and Causation” extracted earlier in this judgment shows that although the medical assessor understood the insurer’s concerns and appreciated the medical opinions on which the insurer’s position relies, he was nevertheless persuaded by the report of Dr Molnar and the first defendant’s history that her left hip injury was caused by the subject accident.

18. [57]

    The first defendant argued that the Permanent Impairment Guidelines provide guidance to a medical assessor in determining causation. However, she argued that there is nothing incorrect in the medical assessor’s approach to resolving the issue of causation. He identified the elements of the insurer’s position on causation, and then explained why he did not accept that position. The first defendant submitted that the medical assessor had before him a body of qualified medical opinions which differed, and that ultimately he was persuaded by the view of the treating attendant specialist and by the first defendant’s given history. Accordingly, there is no basis to the insurer’s argument that the legal test for causation was wrongly applied, or that the outcome of its application was in error.

19. [58]

    The passages in which the medical assessor addressed the first defendant’s symptomology and treatment to the left hip have been set out in detail earlier in this judgment. Relevantly, on p 4 of his report, he stated that the first defendant told him that she had been experiencing discomfort in the left and right hip from the time of the accident, but he added that “this feature of history has been challenged by other history takers and will be discussed later.” He noted that six months after the accident, in September 2012, the first defendant came under the care of sports physician Dr Jeni Saunders, who noted the presence of axial pain and pain associated with the left hip. Dr Saunders ordered investigation of the left sacroiliac joint, suspecting it might be the site of significant injury. On p 5 of his report, the medical assessor wrote that at the time, “scans suggested that the left sacroiliac joint had sustained soft tissue damage and was the site of discomfort”. The first defendant’s pain was treated with an intra-articular hip injection.

20. [59]

    The medical assessor then wrote that Dr Saunders referred the first defendant to Dr Molnar, who wrote “numerous reports” in relation to her condition extending from 28 October 2013 to 16 February 2017. Dr Molnar assessed her left hip with a scan, which demonstrated a “superolateral labral tear, chondrolabral injunction injury and an anterior femoral CAM lesion”. Dr Molar performed two arthroscopic surgeries on the first defendant’s left hip to repair the damaged tissue, one in 2013 and one in 2015. Dr Molnar gave the opinion that her painful pathologies to the left hip must have been caused by the subject accident because she had not experienced them before it occurred.

21. [60]

    At p 6 of his report, after detailing Dr Molar’s treatment of the first defendant from 2013-2015, the medical assessor stated:

22. [61]

    I will return to discuss this 16 February 2017 report in due course.

23. [62]

    At p 11 of his report, the medical assessor summarised the available x-ray, MRI, and CT scans. He then turned to address the views of the various medical experts, and why their opinions concerning the causation of the left hip pathology differed from that of Dr Molnar.

24. [63]

    At p 12, he noted that Professor Ian Cameron, specialist in rehabilitation medicine, had given the opinion that the first defendant’s hip pathology was not convincingly related to the subject accident, and that the symptoms relating to the left hip were not recorded in the accident medical certificate or the contemporaneous claim form. The medical assessor also noted the 26 June 2014 report of Dr Robert Drummond, orthopaedic surgeon, who stated that the first defendant’s symptoms to the right hip were related to “developmental constitutional pathology” and were “not caused or influenced by” the subject accident. Like Professor Cameron, Dr Drummond had noted that the emergency department notes from the date of the accident did not note an injury to the left hip.

25. [64]

    At pp 14 to 15, the medical assessor noted the reports of Dr Andrew Keller, occupational physician, and Drs Anthony Smith and Scott Harbison, orthopaedic surgeons, each of whom stated that the first defendant’s hip injury was not related to the subject accident. The medical assessor wrote that Dr Harbison expressed concern that the first defendant reported “such a plethora of disabling symptoms, more than 5 years after what was a relatively minor accident, according to his history.”

26. [65]

    It is the two paragraphs under the heading “Diagnosis and Causation” at p 15 of the medical assessor’s decision which give rise to the primary disagreement in these proceedings. The medical assessor began his conclusion by stating, “I am historically satisfied that Mrs Koic had no previous history of painful or traumatic disorder prior to the current motor vehicle accident”. At the hearing of these proceedings, counsel for the insurer took issue with the phrase “historically satisfied”, arguing that its meaning is unclear. However, I accept that the word “historically” may be understood to mean “obtained from [the] patient history”, as the medical assessor clarified in the following paragraph when he stated that Dr Molnar, as the first defendant’s treating surgeon, had accepted that her left hip discomfort originated with the subject accident.

27. [66]

    The medical assessor then wrote that other independent medical assessors held “a contrary view that such pathology relates to the congenital lesions on the neck/head junction of both hips and that one cannot get intra-articular Iabral pathology as a result of such an accident.” The medical assessor stated:

28. [67]

    He then continued, still on p 15:

29. [68]

    As to the “historical record”, at the hearing of these proceedings, counsel for the insurer noted that there is no direct evidence from the time of the accident that the left hip had been injured. As outlined earlier, the first defendant’s complaint of the left hip pain was first recorded in September 2012, six months later. However, from that point forward, the records of Drs Saunders and Molnar, as well as the history provided by the first defendant, detail the presence of left hip pathology.

30. [69]

    As to the evidence put forward by Dr Molar, there were several reports which addressed the issue of causation of the left hip were available to the medical assessor. On 28 October 2013, Dr Molnar wrote that the first defendant “injured her hip back in 2012 when she was involved in a motor vehicle crash. Ultimately, investigations have included bone scans and MRI scans which have demonstrated a labral tear” (CB 131).

31. [70]

    In a letter to the first defendant’s solicitors dated 23 October 2014, Dr Molnar wrote (CB 139):

32. [71]

    Later in that letter, he continued (CB 141):

33. [72]

    In a letter dated 11 January 2017, the first defendant’s solicitors wrote to Dr Molar seeking his medical opinion in relation to her case (CB 149-151). In that letter, solicitors for the first defendant requested that Dr Molar “accept our instructions are correct” with respect to certain assumptions. Those assumptions included that the first defendant’s account of the subject accident was accurate, that the collision was “forceful and unexpected” and “occurred at speed, and with considerable force”, and that she was “thrown violently forwards and backwards in her seat” (CB 149) in which she had been twisted around at the moment of impact. Dr Molar was further asked to assume that the first defendant noticed symptoms to her left hip “within days” of the collision (CB 150). The letter concluded (CB 151):

34. [73]

    On 16 February 2017, Dr Molar issued a report in response to the first defendant’s solicitors’ request. That report formed “additional relevant information” in the first defendant’s application for further assessment to the medical assessor. Dr Molar wrote (CB 152):

35. [74]

    Counsel for both the insurer and the first defendant agreed that it was this 16 February 2017 report that “swayed” the medical assessor to agree with Dr Molar’s assessment of causation. Counsel for the insurer called the report “highly questionable” in light of its premise (T 15.36). Moreover, he submitted that Dr Molar only provided an opinion on the balance of probabilities, and failed to address causation to the standard required under the Permanent Impairment Guidelines or the common law. In determining causation, he argued, Dr Molar had “shot from the hip” (T 4.25-26).

36. [75]

    Counsel for the first defendant replied that there is no mischief to asking an expert to assume a set of circumstances which reflect an important part of a claimant’s history (T 19.45). He argued that it is both common and proper to issue such instructions in the context in which such reports are requested by parties to medical disputes.

37. [76]

    Importantly, it is noted that the insurer did not submit that the assumptions put to Dr Molar were inaccurate in any way.

38. [77]

    Clauses 1.5 to 1.7 of the Permanent Impairment Guidelines concern causation in medical assessments under the MAC Act and are reproduced earlier in this judgment. Clause 1.5 states that a determination of causation is “implied” into medical assessments, and that medical assessors “must be aware” of relevant AMA4 Guides and common law principles. However, the Permanent Impairment Guidelines prescribe no set formula for determining causation in every case. Clause 1.7 states that “the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed by the motor accident”.

39. [78]

    There is no dispute that in his reasons, the medical assessor accurately and fairly set out the differing medical evidence concerning the first defendant’s left hip injury. He summarised the reports of Professor Cameron and Drs Drummond, Keller, Smith and Harbison, all of whom stated that the first defendant’s left hip injury was not caused by the subject accident. He also referred to the reports of Dr Molnar, and to the first defendant’s own history, which stated that the accident had caused her hip pathology. In his conclusion, the medical assessor said that he agreed with the opinions of the former group of experts that “one would need extreme trauma” to the hip at the time of the subject accident to cause the first defendant’s pathology. He then concluded that he was “swayed” that this had occurred by the evidence of the first defendant and Dr Molar, her treating practitioner.

40. [79]

    Contrary to the insurer’s submissions, it is my view that these two statements are not inconsistent. Neither can it be said that the medical assessor “shot from the hip”. At p 5 of his reasons, he had set out a detailed history of the first defendant’s left hip symptomology, including extensive treatment by Dr Molnar from 2013 to 2015. At p 6 of his reasons, extracted earlier in this judgment, the medical assessor referred to the 16 February 2017 report of Dr Molnar as to causation. It was in that report that Dr Molar agreed with Dr Drummond that the first defendant suffered a congenital acetabular morphology. However, he determined that this condition had not singularly caused her labral pathology, but that it had “predisposed” her to the condition which he determined was “ultimately caused” by the subject accident. It was his opinion that the “unpredictable” forces of a motor vehicle accident were capable of causing her labral tears. Moreover, Dr Molar noted that those tears would have been difficult to diagnose, which would explain why the first defendant had not sought treatment immediately, and why the injury was not recorded in the hospital notes on the date of her accident.

41. [80]

    Under cl 1.6 of the Permanent Impairment Guidelines, determining causation involves the medical judgment of verifying that the motor vehicle accident could have contributed to the impairment. Dr Molar’s reports provided this evidence, and it was open to the medical assessor to find them persuasive. Determining causation also involves the non-medical informed judgment of concluding that the motor vehicle accident did contribute to the impairment. The medical assessor stated that he was “swayed” that the accident was the ultimate cause of the injury. Clause 1.7 of the Permanent Impairment Guidelines states that the subject accident does not have to be the sole cause of the injury, so long as it was “a contributing cause which is more than negligible”.

42. [81]

    I will discuss the sufficiency of the medical assessor’s reasons in further detail when I address grounds 2(c)-(e) below. However, for present purposes, neither the Permanent Impairment Guidelines nor the common law required the medical assessor to use a prescribed form of words in reaching his determination. In reviewing the available evidence and concluding that he was swayed by the first defendant’s and Dr Molar’s evidence, it is my view that the medical assessor satisfactorily addressed the issue of causation of the left hip injury as required under cls 1.5 to 1.7 of the Permanent Impairment Guidelines. This ground of review fails.

(2) 2(c)-(e) – Adequate reasons

1. [82]

   The insurer submitted that the medical assessor was obliged to set out lawful reasons for his decision, pursuant to s 61(9) of the MAC Act and the Motor Accident Guidelines.

2. [83]

   The insurer submitted that in making his decision, the medical assessor failed to set out his actual path of reasoning and to do so in terms sufficiently clear so as to enable a reader to determine whether or not he fell into legal error, as set out by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64 (“Wingfoot”). He did not set out lawful reasons for his findings on causation, and in particular, failed to explain why the left hip injury was causally related to the subject accident.

3. [84]

   The issue of causation was a statutory task that the assessor was required to consider pursuant to s 58(1)(d) of the MAC Act, as well as under the Permanent Impairment Guidelines. The insurer submitted that the medical assessor’s duty to give reasons was heightened in circumstances where the insurer highlighted the issue of causation in its MAS forms and submissions.

4. [85]

   In particular, the insurer had put in issue the existence of a hip injury as follows:

5. [86]

   The insurer submitted that in this way, the application and reply forms squarely put in issue the question of causation of the left hip injury.

6. [87]

   In Allianz Australia Insurance Ltd v Francica (2012) 63 MVR 1; [2012] NSWSC 1577, Hall J stated at [17]:

7. [88]

   The insurer submitted that in determining the adequacy of reasons, it is important to determine what was at issue between the parties before the determining tribunal.

8. [89]

   In Alchin v Daley [2009] NSWCA 418, Sackville AJA, with whom McColl and Young JJA agreed, stated at [35]:

9. [90]

   The insurer submitted that because causation of the left hip injury was the “battleground” between the parties, there was onus on the medical assessor to properly address this issue in his reasons. In this context, the medical assessor’s reasons fell below the required legal standard.

10. [91]

    In addressing the standard to which the medical assessor’s reasons are to be held, the first defendant referred to AAI Limited v Fitzpatrick [2015] NSWSC 1108 (“Fitzpatrick”) at [27]-[31]:

11. [92]

    The first defendant submitted that the medical assessor’s reasons are to be read beneficially and as a whole. The medical assessor explained why he made the positive causation finding, and in doing so he dealt with the articulated case advanced by the plaintiff on the differing medical evidence. Accordingly, his reasons reveal no error.

12. [93]

    The medical assessor was obliged to provide reasons for his findings pursuant to s 61(9) of the MAC Act. The standard by which those reasons are considered to have discharged his obligation is set out in Wingfoot at [54]-[56], referred to by Hall J in Fitzpatrick quoted above. In Wingfoot, the High Court held at [55] that a medical assessor’s written reasons “must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.

13. [94]

    While Wingfoot refers to a medical panel under the Accident Compensation Act 1985 (Vic), the standard for written reasons set out in Wingfoot applies equally to the medical assessor under the MAC Act in this case: see Frost v Kourouche (2014) 86 NSWLR 214 at [2], [40]; Zahed v JAG Limited t/as NRMA Insurance (2016) 75 MVR 1 at [34].

14. [95]

    In considering the adequacy of the medical assessor’s reasons, I also accept that they are not to be “minutely and finely construed with an eye keenly attuned to the perception of error”, but rather read fairly and as a whole: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Martin v Kelly [2008] NSWSC 577 (“Martin”) at [16]. In reading the medical assessor’s reasons generally, I bear in mind that they are written to inform, and “not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

15. [96]

    Read as a whole and fairly, it is my view that the medical assessor’s reasons meet the standard set out in Wingfoot at [55] quoted earlier. As I outlined in relation to grounds 2(a)-(b), the medical assessor accurately set out the available evidence on causation, and then determined that he was “swayed” by the evidence of the first defendant and her treating surgeon. In the context of the decision as a whole, it is my view that it was open to the medical assessor to agree with the medical experts who stated that “one would need extreme trauma to the right and left hip joint at the time of a motor vehicle accident” to cause the first defendant’s pathology, and also be persuaded by the evidence of the first defendant and Dr Molar that this trauma occurred in the subject accident. Crucially, the medical assessor stated that he accepted Dr Molar’s explanation for the delay in onset the first defendant’s symptoms.

16. [97]

    For these reasons, I am satisfied that the medical assessor provided sufficient reasons why the subject accident caused the first defendant’s injury to the left hip, and do not constitute an error of law. This ground of review fails.

(3) 2(c) - Failure to respond to a substantial and clearly articulated argument

1. [98]

   The insurer argued that it put the issue of causation of the left hip in issue, and had made submissions on the issue. These arguments were based on the evidence set out in the submissions. The insurer argued that in his decision, the medical assessor did not respond to all of the insurer’s arguments.

2. [99]

   In Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account, stating at [19]-[20]:

3. [100]

   In De Gelder, Gleeson JA (with MacFarlan and Gleeson JJA agreeing) held that the review panel in that case had failed to respond to a substantial argument raised by the claimant, stating at [109]:

4. [101]

   The insurer submitted that in failing to respond to its substantial and clearly articulated arguments, the medical assessor failed to afford procedural fairness and constructively failed to exercise his jurisdiction.

5. [102]

   Any breach of the rules of procedural fairness is a serious matter. There is no such thing as a trivial denial of procedural fairness: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 62 ALD 285; [2000] HCA 57 at [17] and [59].

6. [103]

   The first defendant relied on her submissions in relation to the previous grounds of review.

7. [104]

   The failure of a decision maker to respond to a substantial and clearly-articulated argument is a failure to accord procedural fairness and a jurisdictional error: see De Gelder at [89]-[94]; Cervantes; Dranichnikov as referred to in the insurer’s submissions. The content of the requirement to accord procedural fairness will depend upon the facts and circumstances of a particular case: see De Gelder at [93]; Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [28]. I have accepted that what constitutes sufficient reasons for the medical assessor differs from the standard required of a court: see Wingfoot at [54]-[56].

8. [105]

   For the reasons I have given in relation to grounds 2(a)-(e), it is my view that the medical assessor satisfactorily responded to the insurer’s argument that the subject accident was not the cause of the first defendant’s left hip injury. At p 4 of his decision, the medical assessor flagged that causation was in issue, and stated that he would address the controversy in due course. He then referred to the first defendant’s oral history of her pathology to the left hip, and accurately summarised the various evidence of the medical experts and her treating practitioners. It was open to the medical assessor to prefer the evidence of the first defendant and Dr Molar, as he did. This ground of review fails.

(4) 2(f) – Legal unreasonableness

1. [106]

   Finally, the insurer submitted that the decision was vitiated by legal unreasonableness. In Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 (“Li”), the High Court observed at [68] and [76]:

2. [107]

   The insurer submitted that at a crucial stage of the medical assessor’s reasons, he determined that a person “cannot get intra-articular labral pathology as a result of such an accident”. However, he then went on to state that that he was swayed by unidentified evidence from Dr Molnar, and then found that the accident caused injury to the claimant's left hip. The insurer submitted that by so doing, the medical assessor reasoned illogically or irrationally.

3. [108]

   In IAG Ltd t/as NRMA Insurance v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346 (“Sleiman”), the Court held that where a decision arose from an unexplained leap in the reasoning process, where its internally inconsistent reasoning lacked an evident and intelligible justification, that decision should be set aside for legal unreasonableness. In Sleiman, Fagan J stated at [28]-[29]:

4. [109]

   The insurer submitted that as a result of the deficiency in the medical assessor’s reasons and/or its legal unreasonableness, the decision should be set aside.

5. [110]

   The first defendant submitted that there is no inconsistency of the kind submitted by the insurer. The passage specified outlines the medical assessor’s path of reasoning, in which he addressed the causation dispute at hand and provided his explanation for his conclusion. The evidence of Dr Molnar was not unexplained, but had been set out earlier in the medical assessor’s statement of reasons. As such, the medical assessor’s decision was not unreasonableness.

6. [111]

   This is not a case, as in Sleiman above, where a calculation of earning capacity was inexplicably doubled from estimates in evidence. As outlined in detail in relations to grounds 2(a)-(e), in making his determination, the medical assessor considered the material before him, including the insurer’s submissions, and was ultimately swayed by the evidence of the first defendant and Dr Molar.

7. [112]

   In his report of 16 February 2017, Dr Molar agreed with other medical experts that it was “likely” that the first defendant suffered from a congenital condition to her left hip. However, Dr Molar determined that her labral tears could have been caused by the “unpredictable forces” of a motor vehicle collision. In light of the first defendant’s insistence that her symptomology to the left hip began with the subject accident, Dr Molar determined that the collision was its ultimate cause. He was not troubled by the absence of documentary evidence of the injury at the date of the subject accident, as he noted studies which demonstrate that such pathologies are difficult to diagnose. It was open to the medical assessor, in the exercise of his discretion, to agree with that opinion.

8. [113]

   It is my view that the medical assessor’s acknowledgement on p 15 that he had been initially compelled by the contrary evidence before being swayed to reach his conclusion does not render his decision “internally inconsistent” in the sense described in Sleiman. Neither do his reasons “lack an evident and intelligible justification” as stated in Li. His reasons are not vitiated by legal unreasonableness. This ground of review fails.

Result

1. [114]

   The result is that the application for judicial review fails. The summons filed 7 March 2019 is dismissed.

Costs

1. [115]

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