Chahrouk v Allianz Australia Insurance Limited

1. [1]

   HER HONOUR: This is an administrative law matter seeking judicial review of the decision of a Medical Review Panel.

2. [2]

   The plaintiff is Mr Hassan Chahrouk (“Mr Chahrouk”). The first defendant is Allianz Australia Insurance Ltd (“the Insurer”). The second defendant is the President of the Personal Injury Commission of New South Wales (“the President”). The third defendant is the Medical Review Panel constituted by Medical Assessors Ian Cameron, Margret Gibson and Thomas Rosenthal (“the Review Panel”). The insurer is the only active participant. The second and third defendants have filed submitting appearances.

3. [3]

   The parties relied on a joint court book. Copies of the most relevant documents have been extracted by the plaintiff into a smaller bundle marked as Exhibit A.

4. [4]

   By amended summons filed 23 July 2021 (“the amended summons”), the plaintiff relevantly seeks the following orders:

   1. (1)

      A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and statement of reasons for decision of the third defendant, dated 26 October 2020, issued by the second defendant, is void and of no effect;

   2. (2)

      An order setting aside the decision of the third defendant issued by the second defendant; and

   3. (3)

      An order remitting the Review Application from the assessment of Dr Mohammed Assem dated 24 October 2019 back to the second defendant to thereafter be referred to a differently constituted medical review panel to determine the plaintiff’s review application according to the law.​​​​​​​

Background

1. [5]

   On 14 July 2018, the plaintiff was involved in a motor accident ("the accident"). The accident occurred when the plaintiff was driving his taxi and a vehicle driving next to the plaintiff that was insured by the Insurer, collided with the plaintiff’s driver’s door. At the time of the collision, the plaintiff had his right arm and elbow resting on the door.

2. [6]

   Due to the impact of the collision, the plaintiff alleges he sustained injuries to his neck, left and right shoulder, and lower back and now suffers post-traumatic stress disorder. He lodged a claim for damages against the Insurer.

3. [7]

   There was a dispute between the Insurer and the plaintiff as to whether the injuries sustained by the plaintiff were "minor injuries" within the meaning of s 1.6 of the Motor Accident Injuries Act 2017 (NSW) ("the Act").

4. [8]

   On 16 January 2019, the Insurer informed the plaintiff that it had deemed his injuries to be minor injuries for purposes of the Act. The effect of this decision was that the plaintiff was not entitled to weekly statutory benefits after 26 weeks after the date of the accident, and would not be able to make a damages claim.

5. [9]

   On 15 April 2019, the plaintiff sought an internal review of the Insurer’s decision. On 3 May 2019, that internal review resulted in the Insurer’s decision being affirmed.

6. [10]

   On 30 May 2019, the plaintiff lodged an application to (what was then) the State Insurance Regulatory Authority ("SIRA") Dispute Resolution Service ("DRS"). The application was accompanied with medical records and submissions.

7. [11]

   On 24 October 2019, Assessor Assem (“the Medical Assessor”) issued a certificate certifying that the injuries were soft tissue injuries, not causally related to the accident (“the Medical Assessor’s Certificate”).

8. [12]

   On 21 November 2019, the plaintiff lodged an application for review of the Medical Assessor’s Certificate pursuant to s 7.26 of the Act on the basis that the Medical Assessor’s Certificate was infected with several material errors. The application was accepted and the matter was referred to the Review Panel.

9. [13]

   On 26 October 2020, the Review Panel issued a review certificate pursuant to s 7.23 of the Act (“the Review Panel Certificate”). It certified that the plaintiff’s right shoulder injury was causally related to the accident, but was a "minor injury" for the purposes of the Act, and that the other injuries were not caused by the accident.

Relevant legislation

1. [14]

   “Minor Injury” is defined at s 1.6 of the Act. It reads:

2. [15]

   The plaintiff applied for a review of the Medical Assessor’s decision pursuant to s 7.26 of the Act. Section 7.26 relevantly reads:

Grounds of judicial review

1. [16]

   The grounds of review are as follows:

   1. (1)

      The Review Panel erred in law in determining that the injury to the plaintiff's right shoulder was a soft tissue injury and thus a minor injury for the purposes of the Act, being a determination contrary to s 1.6(2) of the Act (“Minor Injury – SLAP tear”).

   2. (2)

      The Review Panel denied the plaintiff procedural fairness by failing to provide any adequate reasoning as to why it was that the right shoulder injury, being a SLAP tear, was determined to be a soft tissue injury and as to why the claimed injuries to the right shoulder (in particular, the claimed SLAP tear) were not causally related to the accident. This is referred to as "Ground 2" in the plaintiff's submissions (“Denial of procedural fairness – SLAP tear”).

   3. (3)

      The Review Panel denied the plaintiff procedural fairness by failing to provide adequate reasons for its decision that the plaintiff’s cervical spine, left shoulder and lumbar spine injuries were not caused by the accident. This is referred to as "Ground 3" in the plaintiff's submissions (“Failure to provide reasons – back, neck and left shoulder”).

   4. (4)

      The Review Panel committed a jurisdictional error by failing to conduct a new assessment of all matters with which the medical assessment was concerned contrary to s 7.26(6) of the Act. In particular, the Review Panel failed to determine whether the claimed SLAP injury to the plaintiff’s right shoulder was causally related to the accident and if so whether it constituted a non-minor injury. Instead, the Review Panel confined itself to a consideration of the tendon tears in the right shoulder, and soft tissue injury to the right shoulder, and did not include the SLAP tear in its assessment (“Failure to conduct new assessment – SLAP tear”).

   5. (5)

      The Review Panel took into account an irrelevant material consideration when discharging its statutory function by incorporating into its reasoning process an asserted fact, that tears like those of the plaintiff's right shoulder were commonly found in people of the plaintiff's age, and as such fell into jurisdictional error. This is referred to as "Ground 4" in the plaintiff's submissions (“Irrelevant consideration – many studies reference”).

   6. (6)

      The Review Panel denied the plaintiff procedural fairness by failing to respond to a substantial and clearly articulated argument contained in the plaintiff's written outline of submissions and to determine the review pursuant to s 7.26 of the Act. This ground of review is referred to as "Ground 1" in the written submissions (“Failure to respond to clearly articulated argument”).

   7. (7)

      The Review Panel erred in denying the plaintiff procedural fairness in that it did not give notice to him of its intention to rely on "many studies" that allegedly demonstrate that certain "imaging findings" are commonly present in asymptomatic people of the plaintiff's age, and by relying on these studies in a material way in making the decision that the imaging findings on the plaintiff's imaging were not related to trauma. In relying on those "many studies" in a material way, and having not given the plaintiff notice of its intention to do so, the Review Panel denied the plaintiff procedural fairness, committing jurisdictional error or, in the alternative, an error of law on the face of the record (“Denial of procedural fairness – the many studies reference”).

   8. (8)

      The Review Panel failed to provide adequate reasons for its conclusions that were formed in reliance on the "many studies" including not providing the names of the studies, not explaining the nature of those studies, not explaining which body parts the studies were said to refer to, and not explaining what "imaging findings" the Review Panel was actually referring to. Such a failure to provide lawful reasons constitutes an error of law on the face of the record (“Many studies – failure to provide reasons”).

   9. (9)

      The Review Panel determined that "[h]ad a tendon rupture occurred in the crash there would have been significant immediate pain requiring urgent and early medical consultation" and this was a critical factor in the adverse finding made against the plaintiff. However, it appears from the reasons for decision that the Review Panel did not inquire with the plaintiff as to precisely when he felt onset of pain, and did not draw his attention to this issue as a critical factor upon which the decision was going to turn. This was particularly important in circumstances where the Medical Assessor had obtained a history of immediate discomfort in the right shoulder. In these circumstances, the Review Panel failed to perform its duty to inquire and failed to afford the plaintiff procedural fairness (Failure to inquire and procedural fairness).

2. [17]

   The grounds of judicial review laid out above fall into two main categories. The first concerns the “SLAP tear” and the second the “many studies reference”. There are also other issues, namely whether the Review Panel conducted its assessment afresh, whether it had a duty to inquire, and whether adequate reasons were given in relation to the neck, back and left shoulder injuries that were found to have not been caused in the accident.

MRI scan of right shoulder

1. [18]

   On 6 December 2018, the plaintiff underwent a MRI scan of his right shoulder. The report of the MRI scan addressed to Dr Lim (“the MRI scan”) states:

2. [19]

   A "SLAP tear" is a torn piece of cartilage in the inner portion of the shoulder joint. Specifically, a SLAP tear is an injury to the labrum of the shoulder, which is the ring of cartilage that surrounds the socket of the shoulder joint. It is not a tendon tear and has a distinct pathology. While a soft tissue injury is defined as a minor injury, it is common ground that a SLAP tear may not fall within the definition of “a minor injury” for the purposes of the Act.

3. [20]

   On the same day, Dr Lim also performed an MRI scan of the lumbar spine. It reported that there was moderate facet arthritic changes in L2/3 and L3/4.

The decision of the Review Panel dated 26 October 2019

1. [21]

   The reasoning of the decisions in relation to the right shoulder, neck and left shoulder are intertwined as they are in the submissions by the parties to the Review Panel. The reasons of the decision of the Review Panel in relation to the right shoulder are as follows:

2. [22]

   The Review Panel summarised the results of the MRI scan to the right shoulder on page 3 of its reasons as follows:

3. [23]

   The Review Panel continued on pages 4 to 7:

Judicial Grounds (1), (2) and (3) – Failing to respond to a substantial and clearly articulated argument and failure to provide reasons

1. [24]

   The grounds of judicial review in the amended summons do not correlate with the plaintiff’s submissions and are intertwined in such a way that they are difficult to separate.

2. [25]

   Under this heading I shall address the following grounds of judicial review:

   1. (1)

      In relation to the plaintiff’s right shoulder injury:

   2. (2)

      In relation to the plaintiff’s left shoulder, cervical spine and lumbar spine injuries:

3. [26]

   I shall address both parties submissions with regards to (1) and (2) above and then make my decision under the heading ‘Resolution’.

4. [27]

   The Review Panel was required to set out lawful reasons in accordance with their statutory obligations, forming their jurisdiction, which is informed by the common law. Section 7.23 of the Act relevantly reads:

5. [28]

   In Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480 (“Wingfoot”) the High Court emphasised the need for a written statement of reasons given by a medical panel under the Accident Compensation Act 1985 (VIC) to explain "the actual path of reasoning" (at [55]):

6. [29]

   The specific battleground between the parties may inform the content of the duty to give reasons. In Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 (“Francica”), Hall J said, at [17] - [18]:

7. [30]

   In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [19] - [22], Basten JA (with whom McColl and Macfarlan JJA agreed) said:

8. [31]

   Also, in Rodger v De Gelder [2015] NSWCA 211 (“De Gelder”), Gleeson JA (with MacFarlan and Leeming JJA agreeing) held that the Review Panel in that case had failed to respond to a substantial argument raised by the claimant, by saying at [109]:

9. [32]

   Before I consider the Review Panel’s decision in detail, the approach I should adopt is not to construe its reasons “minutely and finely with an eye keenly attuned to the perception of error”. See: Collector of Customs v Pozzolianic [1993] FCA 322; 43 FCR 280. Rather, they are to be read fairly and as a whole. See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Nevertheless, this beneficial approach to construction does not mean that any ambiguity is to be resolved in the Review Panel’s favour. See: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]. Invariably, some reasons “will cross the line, and irredeemably reveal jurisdictional error”. See: Ejueyitsi v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 289 at [88].

10. [33]

    A fundamental issue between the parties in this medical dispute was whether or not the injuries sustained in the accident were minor injuries for purposes of the Act.

11. [34]

    The Review Panel was required to respond to substantial and clearly articulated argument put forward by the claimant in making its determination as to whether the claimant's injuries were minor injuries for the purposes of the Act.

12. [35]

    Before the Review Panel were substantial and clearly articulated arguments in relation the claimant's SLAP tear to his right shoulder. Those arguments clearly articulated that the claimant had suffered a SLAP tear to his right shoulder as a result of the accident. Those submissions identified that:

    1. (1)

       there was no prior medical attention to the area;

    2. (2)

       the claimant had seen a doctor with contemporaneous complaints within days of the accident; and

    3. (3)

       even if there was some pre-existing degeneration, that the accident was a material aggravating factor in the present symptomology, beyond that of a simple soft tissue injury.

13. [36]

    Specifically, the plaintiff’s (the claimant in the Review Panel) submissions stated:

14. [37]

    And further:

15. [38]

    This argument was not responded to by the Review Panel. In fact, when it came time to make its determination, the Review Panel appears to have overlooked the SLAP tear and the argument regarding the SLAP tear, and have instead considered only a tendon tear.

16. [39]

    The Review Panel make reference to "degenerative changes including partial thickness tendon tear" that was shown on the MRI scan of the right shoulder. That MRI scan did show a tendon tear, and was reported on page 2 of the report to Dr Lim as follows:

17. [40]

    The same report also referred to a separate and distinct injury, being the SLAP tear that featured in the claimant's submissions. Specifically, the report said on page 2:

18. [41]

    The Review Panel on page 3 of its reasons made brief reference to the MRI that showed the SLAP tear:

19. [42]

    However, after this reference to the MRI scan, the Review Panel did not then consider the SLAP tear further. The plaintiff contends that the Review Panel failed to deal with the SLAP tear at all (T7.26-36). While the Review Panel considered the tendon injury, it didn't respond, at all, to the plaintiff's argument about the existence of a SLAP tear. There is no reference to labrum tear or damaged shoulder cartilage.

20. [43]

    The Review Panel has constructively failed to exercise its jurisdiction and/or has denied the claimant procedural fairness in failing to respond to the argument about the claimed SLAP tear injury.

21. [44]

    No reasons were provided in relation to the claimed SLAP tear injury at all. The "panel deliberations" gave reasons as to why the tendon tear would not be related to the accident on page 6 of its reasons, stating:

22. [45]

    The Review Panel does not specify which "imaging findings" it is referring to in the above paragraph. That is a failure to give reasons in itself, in circumstances where the imaging findings revealed at least two distinct types of pathology.

23. [46]

    Having regard to the paragraph as a whole, the Review Panel appears to be referring to the tendon rupture that is referred to in the following sentence. In any event, the subsequent comment about "a tendon rupture" does not address the SLAP tear. The Review Panel is silent on what symptoms would have been experienced if there was a SLAP tear.

24. [47]

    There has been a failure to give lawful reasons with respect to whether the claimed SLAP tear injury was caused by the accident and whether it is a minor injury.

25. [48]

    The plaintiff had put on submissions setting out that the injuries of the cervical spine, left shoulder and lumbar spine should be found to be causally related to the accident. On any view, causation of these injuries was a critical battleground between the parties.

26. [49]

    The Review Panel determined that the left shoulder, cervical injury and lumbar injury were not causally related to the accident. In coming to its conclusion, the Review Panel provided these reasons at page 3:

27. [50]

    At page 4:

28. [51]

    And further at page 6 under ‘Panel deliberations’:

29. [52]

    The plaintiff’s submissions before the Review Panel clearly identify a basis for conclusion that the left shoulder, cervical spine and lumbar spine were causally related to the accident. Importantly, the submissions identified that the plaintiff was asymptomatic in these regions prior to the accident. At pages 3 and 4 of their reasons, the Review Panel identify material that supports the existence of post-accident symptomology.

30. [53]

    On any reading, there is an internal inconsistency between the Review Panel identifying post-accident symptomology and a finding that there was "no information to establish that injuries were sustained to the other body regions". The Review Panel's finding is inconsistent with their own examination of the plaintiff.

31. [54]

    This internal inconsistency has come about because of a gap in the reasoning. There is simply no explanation for the Review Panel's determination of causation other than the attempted deliberations at page 6. The actual path of reasoning was not exposed.

32. [55]

    The plaintiff complained to Dr Ambreen of right shoulder pain on 18 July 2018, four days post-accident. Unlike the Medical Assessor, the Review Panel was aware of this complaint. See: page 4 of their reasons.

33. [56]

    Like the Medical Assessor, the Review Panel was aware that pathology in the right shoulder was identified on MRI scan, five months post-accident. However unlike the Medical Assessor, the Review Panel determined that the plaintiff did suffer an injury to his right shoulder caused by the accident.

34. [57]

    The question the Review Panel had to determine was whether the injury to the right shoulder was soft tissue only, or whether the injury caused the pathology, or was part of the pathology, identified on MRI scan.

35. [58]

    The critical argument in this case is whether the Review Panel was justified in concluding that the pathology in the right shoulder identified on MRI scan was not caused by the accident. The plaintiff says that this conclusion could not be justified, and that the Review Panel failed to explain its path of reasoning in concluding that the pathology was not accident related.

36. [59]

    There are two steps in the Review Panel's reasoning process. They are:

    1. (1)

       The Review Panel states that if the pathology in the right shoulder had been caused by the accident, the plaintiff would have suffered significant immediate pain in the right shoulder requiring urgent and early medical attention. See: page 6 of the Review Panel’s reasons. The plaintiff did not suffer immediate or severe pain in his right shoulder and did not seek medical attention for four days. The plaintiff did not require attendance by an ambulance or at hospital. He was able to drive his taxi after the accident;

    2. (2)

       The Review Panel interpreted the findings of the MRI scan as findings not related to trauma. See: page 6 of the Review Panel’s reasons. The Review Panel specifically states that "The imaging findings with reference to the right shoulder are degenerative and are not related to the subject motor vehicle crash". This interpretation involved the exercise of the Review Panel's clinical experience and judgment, and was made in light of the history of onset of right shoulder symptoms, the Review Panel's findings on examination, and the MRI scan report itself.

37. [60]

    The Review Panel clearly explained the reasons for its conclusion. Specifically, the Review Panel explained why the partial thickness tendon tear, and the SLAP tear, found on MRI scanning of the right shoulder were not caused by the accident.

38. [61]

    The critical element of the Review Panel's reasoning, namely that if the pathology was caused in the accident, the plaintiff would have suffered significant immediate pain requiring urgent medical attention, which he did not, is unassailable.

39. [62]

    If it was necessary for the Review Panel to explain the likely origin of the SLAP tear shown on the MRI scan (which it was not), the Review Panel did so by explaining that the tear was degenerative in origin and a common finding in people of the plaintiff’s age. That additional explanation was helpful but non-essential to the Review Panel's conclusions.

40. [63]

    If the plaintiff does have a SLAP tear to his right shoulder, and if that tear was caused by the accident, the plaintiff may have suffered an injury caused by the accident that is not a "minor injury".

41. [64]

    But the Review Panel determined that the pathology in the right shoulder joint shown on the MRI scan was not the result of trauma or the accident, but was degenerative in nature. That interpretation of MRI scan was a matter for the clinical judgment of the Review Panel.

42. [65]

    The plaintiff asserted that the Review Panel failed to engage with his written submissions on this topic. There is no basis for this assertion. The Review Panel comprehensively engaged with the plaintiff’s assertion that his injuries were not "minor injuries". Specifically, the Review Panel explained in detail why the pathology in the plaintiff’s right shoulder was not caused by the accident, but was degenerative and age-related.

43. [66]

    The Review Panel considered that the mechanism and circumstances of the accident, the lack of acute symptoms in the right shoulder immediately after the accident, and the nature of the radiological findings, were convincing evidence that the pathology in the right shoulder identified on MRI scanning is not a result of the accident. Again, this was a matter for the Review Panel's clinical judgment.

44. [67]

    The plaintiff asserts that the Review Panel gave no consideration at all to the SLAP tear identified in the MRI scan dated 6 December 2018. In other words, the plaintiff now asserts that the Review Panel completely overlooked or deliberately ignored a significant abnormality in the right shoulder identified on MRI scanning, in making its assessment of impairment. If accurate, this would be a remarkable omission for three medical specialists to make. But it is inaccurate.

45. [68]

    The Review Panel's reasons include a summary of the MRI scan report at page 3:

46. [69]

    The report of the MRI findings is set out verbatim in the Medical Assessor’s Certificate (at page 6), which the Review Panel was provided (at page 2).

47. [70]

    The Review Panel was therefore clearly aware of the presence of a SLAP tear in the plaintiff’s right shoulder. The Review Panel was not required to explicitly repeat the words "SLAP tear" whenever it referred to the pathology identified on MRI scanning. It is obvious that the Review Panel included the SLAP tear in its analysis of injury and causation.

48. [71]

    Ground 3 asserts that the Review Panel failed to provide adequate reasons for its decision "that the cervical spine, left shoulder and lumbar spine were all soft tissue injuries which were not caused by the motor vehicle accident".

49. [72]

    In oral submissions Mr Rewell SC said that he didn’t think that he had to address the question of dispensing with the neck, back and left shoulder and that perhaps he may be entitled to assume it is not pressed (T28.4-8). Ms Gumbert in reply did not make any submission to refute this assertion. However, the Insurer did make written submissions on this topic so I will address it.

50. [73]

    The Review Panel determined that the plaintiff suffered no injury of any kind to his neck, back or left shoulder as a result of the accident, and that any symptoms he genuinely suffers in any of these three regions are caused by underlying degenerative disease in which the accident had no role.

51. [74]

    The Review Panel records at page 5 of its reasons that on its examination of the plaintiff’s neck and back, the ranges of motion were symmetrically reduced in all planes. There was no muscle spasm, no muscle guarding, no dysmetria, and no radicular complaints in either the plaintiff’s neck or back.

52. [75]

    MRI scans of the plaintiff’s neck and back were recorded by the Review Panel on page 5 of its reasons as showing degenerative changes only, with no sign of acute or trauma-related injury.

53. [76]

    The Review Panel's findings on examination in relation to the neck and back, combined with the radiological findings, exclude anything other than possible soft tissue injuries to the neck and back, which would (if they occurred) be "minor injuries".

54. [77]

    The argument, so far as it concerns the alleged neck and back injuries, is therefore idle. On the basis of its own clinical examination, and the radiological findings, at highest the Review Panel could only have found that the plaintiff suffered soft tissue injuries to his neck and back, which fall within the definition of "minor injuries" and therefore make no difference to the outcome of the dispute.

55. [78]

    On clinical examination, the Review Panel found no abnormality in the left shoulder. An MRI scan of the left shoulder showed soft tissue changes but no pathology, as the Review Panel recorded. See: page 5 of the Review Panel’s reasons.

56. [79]

    In the absence of any contemporaneous evidence of injury to the left shoulder, the Review Panel concluded that the plaintiff suffered no injury to his left shoulder in the accident.

Resolution

1. [80]

   Under the heading ‘Additional evidence’ on page 4 of its reasons, the Review Panel recorded that a few days after the accident the plaintiff went to a GP where it was recorded in clinical notes “there was right shoulder pain.”

2. [81]

   Under the heading ‘Matters considered by the Review Panel’, it stated that note is made of a SLAP tear involving the labrum extending from the 10 – 1 o’clock position and associated capsular thickening and scarring.

3. [82]

   Later under the heading ‘Imaging’ the Review Panel reported that the MRI of the lumbar spine and right shoulder showed degenerative changes including a partial thickness tendon tear. This sentence uses the word “including” is a reference to a partial thickness tendon tear as being a degenerative change. Under the heading “imaging” there is no specific mention of the SLAP tear.

4. [83]

   Under the heading ‘Panel Deliberations’ the Review Panel stated that the available information suggests that there was a mild to moderate impact crash to the side of the plaintiff’s taxi in the accident, the plaintiff consulted a general practitioner and the contemporaneous records show pain was recorded “from the right shoulder.” The Review Panel concluded that there had been a soft tissue injury to the right shoulder in the accident due to the mechanism of injury. Unlike the Medical Assessor, the Review Panel concluded that the injury to the plaintiff’s right shoulder was caused by the accident [my emphasis]. Under the heading “Panel Deliberations” there is no specific mention of the SLAP tear.

5. [84]

   The Review Panel determined that the imaging findings which showed the right shoulder injury were not related to trauma, and then explained that there are many studies that demonstrate that there are commonly present in asymptomatic people of the plaintiff’s age.

6. [85]

   The Review Panel then returned its attention to the right shoulder by saying that the imaging findings with reference to the right shoulder are degenerative and are not related to the subject motor vehicle crash. It explained that had a tendon rupture occurred in the crash there would have been significant immediate pain requiring urgent and early medical consultation. There is no explanation of what would have been expected with the SLAP tear. If the SLAP tear unlike the tendon rupture did not cause significant immediate pain requiring early medical attention, it would have been expected that the Review Panel would have differentiated the tendon rupture from the SLAP tear and explained why it was a degenerative injury.

7. [86]

   The Review Panel concluded that the injury to the right shoulder is a soft tissue injury and is a minor injury for the purposes of the Act. The Review Panel reiterated that the materials reviewed and the findings on examination did not show any traumatic pathology that could have occurred as a consequence of the accident. The Review Panel then reproduced the definition of a minor injury as set out in the Act.

8. [87]

   It is my view that the plaintiff made a clearly articulated argument to the Review Panel that the right shoulder injury was caused by the accident. The right shoulder injury included SLAP tear, a cartilage injury, which is a distinct injury from a tendon injury. While it is fair to say the Review Panel made a finding that the SLAP tear to the right shoulder was caused in the accident, it did not refer to the SLAP tear in its path of reasoning that arrived at the conclusion that the injury to the right shoulder was degenerative and thus a minor injury.

9. [88]

   For these reasons, the Review Panel failed to respond to the plaintiff’s substantial clearly articulated argument in relation to the SLAP tear. The Review Panel did not specifically refer to nor explain why the SLAP tear falls into the category of minor injury. By failing to do so the Review Panel has constructively failed to exercise its discretion and has made an error on the face of the record. The result is this ground of judicial review is successful and the decision of the Review Panel should be set aside.

10. [89]

    As to the neck, lumbar spine and left shoulder, the plaintiff complained to his GP, a few days after the accident. As well as right shoulder pain he said there was neck pain and lower back pain. At that consultation he did not complain if left shoulder pain.

11. [90]

    Under the heading ‘imaging’ the Review Panel considered the numerous MRIs the plaintiff underwent. The Review Panel stated:

    1. (1)

       the MRI scan of the lumbar and right shoulder on 6 December 2018, showed degenerative changes including a partial thickness tear (i.e. of the shoulder);

    2. (2)

       the MRI scan of the left shoulder dated 8 April 2019 showed soft tissue changes;

    3. (3)

       the MRI scan of the cervical spine dated 6 November 2019, reported that degenerative changes are shown particularly in the mid-cervical region; and

    4. (4)

       the MRI scans to the thoracic and lumbar spine dated 25 January 2020 was reported as showing degenerative changes.

12. [91]

    Under ‘Panel Deliberations’ the Review Panel concluded that aside from the right shoulder there was no information to establish that injuries were sustained to the other body parts that had been listed in the application. In relation to the neck, lumbar spine, and left shoulder, the Review Panel considered the mechanism and circumstances of the accident, as well as contemporaneous documentation in determining that there were no injuries to the cervical spine, lumbar spine and left shoulder from the accident. In support of this conclusion the Review Panel make the “many studies” reference which will be addressed later in this judgment.

13. [92]

    The Review Panel had taken into account the plaintiff’s report of neck and lumbar spine pain to his GP four days after the accident but considered the injuries to the neck, lumbar spine and left shoulder were minor injuries not caused by the accident. It is my view that the Review Panel explained its path of reasoning and responded to the clearly articulated arguments of both parties. It also provided proper reasons for its decision in relation to the neck, lumbar spine and left shoulder. This ground of judicial review fails.

Judicial Grounds (5), (6), (7) and (8) – The many studies reference – Failing to provide notice of intention to rely on extraneous material, procedural fairness and failing to give reasons

1. [93]

   I shall deal with these grounds of judicial review together as they involve the “many studies reference.”

2. [94]

   Under this heading I shall address the following grounds of judicial review:

   1. (1)

      the Review Panel took into account an irrelevant material consideration by incorporating into its reasoning the asserted fact that tears like those in the plaintiff’s right shoulder are commonly found in people of the plaintiff’s age;

   2. (2)

      in relying on ‘many studies’ in a material way when making its decision, and without first giving notice to the plaintiff of its intention to do so, the Review Panel denied the plaintiff procedural fairness, committing jurisdictional error or an error of law on the face of the record; and

   3. (3)

      the Review Panel failed to provide adequate reasons for its conclusions that were formed in reliance of ‘many studies’ including not providing the names of the studies, not explaining their nature, and not explaining what imaging findings the Review Panel was referring to, in such a way that it committed an error of law on the face of the record.

Irrelevant material consideration

1. [95]

   This ground is reflected at [5] of the amended summons. In coming to its conclusion as to the degenerative condition of the plaintiff, the Review panel stated at page 6 of their reasons under ‘panel deliberations’:

2. [96]

   In Craig v South Australia (1995) 184 CLR 163 the High Court, in a unanimous joint judgment, provided the following broad statement of principle in relation to what constitutes jurisdictional error in relation to administrative decision making at [14]:

3. [97]

   Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Mason J said at [39] – [41], that a relevant consideration is one the decision-maker is bound to take into account in making its decision. Mason J also said that whether the decision-maker is bound to take a matter into account is a matter of statutory construction. Her Honour further remarked that not every instance of a decision-maker failing to take into account a relevant consideration will justify the court setting aside an impugned decision. For example where a factor is so insignificant so as not to materially alter the decision, there will be no justification for setting aside the decision.

4. [98]

   In De Gelder, the Court of Appeal stated:

5. [99]

   Both parties agree that there is a spectrum of reliance on and use of extrinsic material. At the more egregious end of the spectrum is that set out in Raina v CIC Allianz Insurance Limited [2021] NSWSC 13 (“Raina”) and at the lesser end of the spectrum lies the use of “many studies” in this current Judicial Review.

6. [100]

   In Raina Campbell J helpfully refers to other decisions on this topic. In Raina, Mr Raina claimed that he suffered injury to his cervical spine consisting of a disc prolapse at C5/C6 level with right sided C6 radiculopathy when his stationary vehicle was hit from behind. The Review Panel considered 22 studies of which only 2 had been referred to in the evidence placed before it. The Review Panel then provided (in some cases potted) summary of the 22 papers appearing in end notes in its reasons at [42]. At [58] - [62] Campbell J stated:

7. [101]

   Under the heading “Use of the medical literature” Campbell J made a finding at [91]:

8. [102]

   In Raina, the result was that the judicial ground of denial of procedural fairness was made out.

9. [103]

   The ‘many studies’ were a material factor in the Review Panel’s consideration as to whether or not the plaintiff's injuries were causally related to the accident.

10. [104]

    The ‘many studies’ that demonstrate that degenerative changes are commonly present in asymptomatic people of the claimant's age are irrelevant material in the context of the statutory task that the Review Panel had to perform, which was to determine whether the injuries claimed by this particular claimant were causally related to the accident and whether or not they constituted a minor injury.

11. [105]

    Ground (5) of the plaintiff's amended summons asserts that the Review Panel took into account "an irrelevant material consideration" namely the established medical fact that SLAP tears and similar pathology in the shoulders are commonly found in people of the plaintiff's age (50 at the time of the MRI scan). The plaintiff does not assert in his summons that this statement of medical fact is wrong. It is obviously relevant.

12. [106]

    This is no different from a medical expert observing that degenerative changes are commonly found in the spines of persons over 50. Such an observation is trite and no specific medical research need be cited to support it.

13. [107]

    Ground (5) of the amended summons asserts that the Review Panel was not entitled to have regard to the medical fact that pathology in the shoulders is commonly found in asymptomatic people of the plaintiff’s age.

14. [108]

    The Review Panel's statement that "There are many studies that demonstrate that (pathologies of the kind seen on MRI scanning here) are commonly present in asymptomatic people of Mr Chahrouk's age" must be viewed in context. The Review Panel explains in the next two sentences that the findings on MRI scan are "in its medical opinion" degenerative and not related to trauma; critically, the Review Panel states that had the tear been caused by the accident, the plaintiff would have suffered immediate severe pain requiring prompt medical attention, which he did not. See: page 6 of the Review Panel’s reasons.

15. [109]

    The Review Panel's statement that the pathology identified on the plaintiffs MRI scan is commonly found in asymptomatic people of the plaintiff’s age is a non-essential part of its process of reasoning. It is a statement of basic medical fact. The plaintiff does not suggest that the statement is wrong, nor does the plaintiff suggest that there is any evidence or medical literature to the contrary.

16. [110]

    It may be, as the plaintiff suggested in his submissions that the commonality of similar pathology in asymptomatic people of the plaintiff’s age is not directly relevant to whether the plaintiff’s pathology was or was not caused by the accident. That is why this statement by the Review Panel is a non-essential part of its reasons.

17. [111]

    All the impugned statement by the Review Panel seeks to do is to explain, where no explanation was necessary, the likely origin of the pathology identified on the MRI scan. If that explanation had not been given, the plaintiff would no doubt assert that the only explanation for the pathology is an injury caused by the accident. The plaintiff cannot have it both ways.

Failure to give notice and failure to provide reasons

1. [112]

   The Review Panel relied on "many studies" as a material factor in its determination on causation. The Review Panel did so without giving any reference to the author or source of the "many studies".

2. [113]

   The Review Panel did not provide any notice of its intention to rely on the "many studies". There was no invitation to make submissions on the "many studies". The plaintiff was given no opportunity to be heard in relation to either the intention to rely on the "many studies" or on the content of the studies.

3. [114]

   The Review Panel in this case has fallen into the same error as the panels referred to in Briggs, Dagher, Robson, and Raina. The insurer in the abovementioned authorities argued that the review panel was entitled to refer to studies as part of its general specialised knowledge and role as an expert decision maker. However, that argument was soundly rejected in each case. No doubt a similar argument will be made here, and it will be suggested that this case is different to the other cases because the Review Panel did not refer to the studies by name.

4. [115]

   The fact that the Review Panel failed to refer to the studies by name does not cure the denial of procedural fairness. In fact, it compounds it. It would lead to an absurdity if a decision maker falls into error by referring to named studies (as the above cases make quite plain) but would not fall into error by simply omitting the name of the studies.

5. [116]

   The Review Panel was required to notify the parties of its intention to rely on the "many studies", explain what those studies were, and invite comment. It did not do so. It therefore denied procedural fairness to the parties. This is the ground of review set out at [6] of the plaintiff’s amended summons.

6. [117]

   Further, as set out at [8] of the amended summons, in relying on the "many studies" as identified above, the Review Panel have failed to provide a lawful path of reasoning. There is no articulation of important matters such as:

7. [118]

   It is not clear from the reasons why the general assertion relating to people in the same age category apply to require a finding that in these circumstances and this particular claimant, the claimed injuries are not causally related to the accident.

8. [119]

   At [6] and [8] of the amended summons, the plaintiff asserts that the Review Panel denied him procedural fairness stating, in relation to the abnormalities in the right shoulder identified on MRI scan, that "There are many studies that demonstrate that they are commonly present in asymptomatic people of Mr Chahrouk's age".

9. [120]

   At [8], the plaintiff asserts that the Review Panel was obliged to identify each of the "many studies" to which it referred, and to explain the nature of each study.

10. [121]

    What the Review Panel did was simply to point out that it is trite, as a matter of common medical knowledge, that pathology of the kind identified on MRI scanning of the plaintiff’s right shoulder is common in people of the plaintiff’s age who have no shoulder symptoms. The plaintiff does not assert that this is not a medical fact, and does not point to any evidence to the contrary.

11. [122]

    In this case, unlike the decisions to which Campbell J referred in Raina at [58] - [62], the Review Panel's reference to "many studies" was not an essential part of its reasoning. It was not relied upon at all by the Review Panel in reaching its conclusion.

12. [123]

    The Review Panel had already determined that the pathology identified on MRI scanning in December 2018 cannot have been caused by the accident because if it was, the plaintiff would have suffered an immediate onset of severe right shoulder pain that would have necessitated urgent medical attention. That was not the history given by the plaintiff. Moreover, the Review Panel explained that the radiological findings were not, in its opinion, traumatic in nature, but were of degenerative origin.

13. [124]

    Ultimately, it did not matter whether the radiological changes are "commonly found" in asymptomatic people of the plaintiff’s age, or not: the Review Panel had already excluded the accident as a possible cause of that pathology.

14. [125]

    The difference between this case and Briggs, Dagher, Robson and Raina, is that in each of those cases the decision-maker was found to have relied in whole or in a material way on a study or studies not disclosed to the parties before the decision was made. Here, the use of the term "many studies" simply conveyed that it is a trite medical fact that the pathology identified on MRI scanning here, is commonly found in asymptomatic people of the plaintiff’s age.

15. [126]

    Had the Review Panel simply made that statement, without referring to "many studies", it would be accepted as basic medical knowledge to which no objection could be taken on judicial review. It is to look at the Review Panel's reasons with an eye finely attuned to error, to seek to set aside the Review Panel's decision simply because the Review Panel states that this medical fact is supported by "many studies", as one would expect every medical fact is.

16. [127]

    The Review Panel's reasons, read as a whole, do not suggest that the Review Panel's decision hinged on its comment that the radiological findings in this case are common in uninjured people of the plaintiff's age. To the contrary, the critical matter is clearly the Review Panel's finding that had a tendon tear occurred in the accident, the plaintiff would have suffered immediate onset of severe right shoulder pain requiring urgent medical attention, and that the findings on MRI scanning are, in the Review Panel's opinion, non-traumatic in nature.

17. [128]

    The plaintiff's unspoken argument is that the presence of a SLAP tear in MRI imaging taken five months post-accident of itself establishes that the tear was caused by the accident. The Review Panel rejected that proposition and explained why.

Resolution

1. [129]

   I have set out earlier the Review Panel’s deliberation in relation to the right shoulder. The Review Panel considered the mechanism and circumstances of the accident, as well as contemporaneous documentation in determining that there were no injuries to cervical spine, lumbar spine and left shoulder caused by the accident. The Review Panel stated that the imaging findings are not related to trauma. It then stated that there are many studies that demonstrate that they are commonly present in asymptomatic people of the plaintiff’s age. I do not agree that this was a material factor in the Review Panel making its decision, but rather it was an explanation as the findings it made in relation to the MRI scans.

2. [130]

   The statement that “There are many studies that demonstrate that they are commonly present in asymptomatic people of Mr Chahrouk’s age”, is perhaps not well expressed, but a fair reading of it would suggest its intent was to convey common medical knowledge in relation to injuries to the neck lumbar spine and left shoulder. The Review Panel was conveying that these imaging findings are not related to trauma and explained that there are many studies that demonstrate that similar imaging findings are commonly present in asymptomatic people of Mr Chahrouk’s age. In other words, the Review Panel after reviewing the MRI scans then referred to common medical knowledge. The knowledge and content of the studies form part of the Review Panel’s expertise.

3. [131]

   The plaintiff submitted that if the Review Panel was relying upon common knowledge then they need not have included the reference to “many studies”. I agree that the Review Panel did not need to say “many studies”. However, in context it meant to convey that it was well known medical literature and formed part of their medical expertise.

4. [132]

   The cases of Briggs, Dagher, Robinson and Rama are cases where a review panel referred to particular studies, which did not fall within “common medical knowledge”. The reference to “many studies” however, is an expression of what is commonly known medical knowledge. In these circumstances, it was not necessary for the Review Panel to list the individual studies in their decision. Hence, in my view the parties did not need an opportunity to address what is well known and accepted common medical knowledge, there was no denial of procedural fairness and the Review Panel did not fail to give reasons. These grounds of judicial review fail.

Judicial Ground (4) – Failure to conduct a new assessment of all matters with which the medical assessment was concerned

1. [133]

   I agree that a Review Panel is to conduct its assessment afresh. See: Frost v Kourouche (2016) NSWLR 214 at [9]. In the earlier grounds of judicial review I have set out how the Review Panel dealt with the plaintiff’s complaints. The Review Panel correctly identified the grounds of review in the parties’ submissions on each topic under the heading “Disputes identified by the parties”. It also identified that additional evidence, and conducted a fresh examination. It is my view that the Review Panel did conduct its assessment afresh. This ground of judicial review fails.

Judicial Ground (9) – duty to enquire

1. [134]

   This ground is reflected at [9] of the amended summons.

2. [135]

   At page 6 of its reasons, the Review Panel states:

3. [136]

   The presence of significant immediate pain is a material and apparently determinative factor behind the Review Panel's conclusion that the tendon rupture was not caused by the accident. At Page 6, of the Review Panel's reasons, the Review Panel states:

4. [137]

   The Review Panel apparently made no further inquiry in relation to the timing of onset of symptoms or pain following the accident.

5. [138]

   A duty imposed on the Review Panel by s 7.26(6) of the Act is to conduct a review by way of a new assessment of all the matters with which the medical assessment is concerned.

6. [139]

   In limited cases, where a decision maker fails to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, that failure is capable of supplying a sufficient nexus to the outcome of a review, so as to constitute a constructive failure to exercise jurisdiction: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [49].

7. [140]

   The Review Panel’s decision finally determines whether the claimant is entitled to common law damages. The decision was sufficiently serious, in circumstances where the information was readily available to be asked from the claimant in examination, that the Review Panel had a duty to inquire as to the timing of the onset of the pain. There was no such inquiry made. This amounts to a jurisdictional error.

8. [141]

   In the amended summons at [9], the plaintiff notes the Review Panel's conclusion that "Had a tendon rupture occurred in the crash there would have been significant immediate pain requiring urgent and early medical consultation". The plaintiff says that this was a critical factor in the adverse finding to him made by the Review Panel as to causation of right shoulder symptoms.

9. [142]

   The plaintiff asserts that it appears from the Review Panel's reasons that the Review Panel:

   1. (1)

      did not inquire with the plaintiff precisely when he felt the onset of pain; and

   2. (2)

      did not draw the plaintiffs attention to the fact that this was a critical factor.

10. [143]

    As to the second of these assertions, the Review Panel was not required to identify for the plaintiff which parts of his history would be critical to its consideration, and which would not. The Review Panel was required to ask, and the plaintiff was required to answer, questions about the circumstances of the accident, the plaintiff’s immediate symptoms and the treatment he had, and the Review Panel clearly did so. See: page 4 of the Review Panel’s reasons

11. [144]

    Moreover, the history of symptoms and treatment provided by the plaintiff to the Review Panel is consistent with the clinical records provided to the Review Panel. See: page 4 of the Review Panel’s reasons.

12. [145]

    The Review Panel accepted that the plaintiff complained of pain in his right shoulder within 2 days after the accident. It summarised the plaintiff’s later complaints of pain referred in later medical reports. It is my view the duty to inquire does not require the Review Panel to identify to the plaintiff which parts of his history would be critical to its consideration and which would not. Rather the Review Panel was required to ask, and the plaintiff was required to answer, questions about the circumstances of the accident, the plaintiff’s immediate symptoms and the treatment he had. The Review Panel did so. This ground of judicial review fails.

Different Review Panel

1. [146]

   As no bias has been alleged, the constitution of the Review Panel is a matter for the determination of the President of the Personal Injury Commission of NSW.

Result

1. [147]

   The result is that the Grounds of Judicial Review (1), (2) and (6) in relation to the SLAP tear have been upheld. The Review Panel has failed to constructively exercise its discretion and made errors of law on the record. The decision of the Review Panel dated 26 October 2020 is set aside.

Costs

1. [148]

   Costs are discretionary. Normally costs follow the event. The first defendant is to pay the plaintiff’s costs.

   1. (1)

      That the decision of the third defendant issued by the second defendant be set aside.

   2. (2)

      The proceedings are remitted to the President of the Personal Injury Commission of NSW to be determined according to law.

   3. (3)

      The first defendant is to pay the plaintiff’s costs.