Doyle v QBE Insurance (Australia) Limited

1. [1]

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

2. [2]

   By summons filed 17 December 2019, the plaintiff relevantly seeks:

   1. (1)

      an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the certificate and accompanying reasons of Dr Donald K Faithfull in his capacity as a medical assessor of SIRA (“the Medical Assessor”) dated 7 August 2019; or, alternatively,

   2. (2)

      an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Medical Assessor’s decision;

   3. (3)

      an order pursuant to s 69 of the Supreme Court Act setting aside the determination and reasons of the third defendant, Mr Jeremy Lum, in his capacity as a proper officer of SIRA (“the Proper Officer”) dated 7 November 2019;

   4. (4)

      an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Proper Officer’s decision;

   5. (5)

      an order in the nature of mandamus remitting the plaintiff’s application for assessment of Whole Person Impairment (“WPI”) to a different medical assessor for determination according to law; or alternatively,

   6. (6)

      an order in the nature of mandamus remitting the plaintiff’s application for review of the Medical Assessor’s decision for reallocation to a different proper officer for determination according to law.

3. [3]

   The plaintiff is Warren Paul Doyle. The first defendant is QBE Insurance (Australia) Limited (“the insurer”). The second defendant is the Medical Assessor. The third defendant is the Proper Officer. The fourth defendant is SIRA. The second, third and fourth defendants have all filed submitting appearances. The plaintiff relief upon his affidavit dated 1 October 2020, and that of his solicitor, Tanya To, dated 25 September 2020. The insurer relied upon the affidavit of its solicitor Jack Craig dated 2 October 2020. The parties relied upon a court book (Ex A).

Background

1. [4]

   On 26 August 2013, the plaintiff was involved in a motor vehicle accident (“the accident”) in which he sustained injuries to his lower back.

2. [5]

   He claims an entitlement to damages for non-economic loss in relation to his injuries. Under s 131 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”), such damages are only compensable if he has sustained a degree of WPI greater than 10%. The insurer disputed the plaintiff’s claim. As such, the plaintiff made an application to SIRA for a determination as to whether or not his injuries exceeded that threshold. A number of applications were made to the Medical Assessment Service (“MAS”) of SIRA.

3. [6]

   In 2005, prior to the accident, the plaintiff had undergone an operation to the L4/L5 vertebrae of his lumbar spine under the care of neurosurgeon Dr Jonathan Curtis. After the accident, Dr Curtis proposed to carry out a further decompression surgery to the L4/L5 vertibrae (“the second surgery”), which in his view was related to the injuries caused by the accident.

4. [7]

   The MAS appointed a medical assessor, orthopaedic surgeon Dr Frank George Machart, to determine whether the second surgery was related to the accident. On 5 July 2017, Assessor Machart provided his certificate, in which he determined that the second surgery was related to injuries suffered in the accident. The insurer applied for a review of Assessor Machart’s decision.

5. [8]

   On 29 January 2018, a review panel of SIRA comprised of Assessors Ian Cameron, Richard Crane and Clive Kenna (“the Review Panel”) conducted a review of Assessor Machart’s decision. The review included a medical assessment of the plaintiff. The Review Panel confirmed the findings of Assessor Machart that the second surgery was related to injuries suffered in the accident.

6. [9]

   On 17 May 2018, the plaintiff underwent the second surgery by Dr Curtis.

7. [10]

   On 4 December 2018, the plaintiff made an application to the MAS for a determination of WPI. On 21 January 2019, the insurer lodged a reply to that application, as well as its own application for further assessment of a treatment dispute. Those applications were referred by the MAS to the Medical Assessor, who was asked to consider not only the question of WPI, but also to reconsider the question as to whether or not the second surgery related to injuries caused by the accident, and whether the surgery was reasonable and necessary.

8. [11]

   On 17 July 2019, the Medical Assessor carried out his assessment. On 7 August 2019, he issued his certificate and written reasons. He found that the second surgery did not relate to the plaintiff’s injuries suffered in the accident, and as such made no assessment of the plaintiff’s WPI.

9. [12]

   Following the Medical Assessor’s decision, the plaintiff lodged an application to the MAS for review of that decision by a review panel.

10. [13]

    On 7 November 2019, the Proper Officer delivered his decision and reasons, in which he declined to refer the matter for review.

11. [14]

    The plaintiff now seeks a judicial review of both the decisions of the Medical Assessor and the Proper Officer. The plaintiff says 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 decision and the Proper Officer’s decision. Alternatively, he claims that in making their decisions, both the Medical Assessor and/or the Proper Officer constructively failed to exercise their statutory power.

The statutory framework

1. [15]

   Part 3.4 of the MAC Act provides for the medical assessment of claimants injured in a motor vehicle accident, and Part 5.3 provides for damages for economic loss. Sections 57 to 58, 60 to 63, 131 and 133 are relevant here. They read:

The Medical Assessor’s decision

1. [16]

   On 7 August 2019, the Medical Assessor issued his certificate and published reasons for his decision. He began his written reasons by recording that he had considered the application forms, the insurer’s reply and all supporting documents. He also reviewed additional documents provided subsequent to the referral of the matter, including eight listed Facebook posts from the Heffron Park Tuesday Night Racing page (“the Heffron Park Racing results”), an online article dated 22 June 2013, two medicolegal reports and two supplementary medical reports.

2. [17]

   The Medical Assessor then referred to the history given by the plaintiff, including the 2005 operation performed by Dr Curtis for back and right leg pain. The plaintiff informed the Medical Assessor that the right leg pain had improved after this operation, but that his back pain had persisted, although not sufficiently enough to interfere with his work or professional cycle racing. The Medical Assessor noted that the plaintiff regularly attended an osteopath. The Medical Assesor stated at p 4, “I note [the plaintiff] saw Dr Wiliams [his GP] several times from 24/06/2009 to 30/08/2013. There was no mention of low back pain during that period, mainly anxiety and upper respiratory tract infections.”

3. [18]

   Under the heading “History of Symptoms and Treatment Following the Motor Accident”, the Medical Assessor recorded the plaintiff’s various consultations with Dr Williams. These included a consultation on 30 August 2013 after the accident during which the plaintiff complained of lower back pain, which Dr Williams attributed to the accident, and a further consultation on 4 November 2013 during which the plaintiff complained only complained of anxiety.

4. [19]

   So far as the plaintiff’s history of treatment from Dr Curtis is concerned, the Medical Assessor stated at pp 4-5:

5. [20]

   The Medical Assessor then turned to record the plaintiff’s symptoms at the time of assessment and his findings on clinical examination. He noted at p 5:

6. [21]

   The Medical Assessor then referred to the original MAS assessment of Dr Machart, who had diagnosed the plaintiff with an aggravated pre-existing condition of L4/5 discopathy caused by the accident. However, the Medical Assessor stated at p 7:

7. [22]

   As to the assessment of the Review Panel, the Medical Assessor continued at p 7:

8. [23]

   The Medical Assessor then reproduced the Heffron Park Racing results on p 8, which listed eight race results between 5 November 2013 and 25 March 2014 in which the plaintiff finished between 21st and 1st. I will refer to these results in more detail later in this judgment.

9. [24]

   After summarising the relevant medical reports, the Medical Assessor then relevantly turned to consider the reports of Dr Stephen at p 9, noting that he had given the opinion on 19 September 2014 that the plaintiff “had low back pain that was interfering significantly with his work activities and with his cycling to the extent that he can no longer pursue them.” The Medical Assessor again noted that “[i]t is apparent that Dr Stephen did not have the Cycling New South Wales reports.”

10. [25]

    The Medical Assessor referred to Dr Stephen’s further medicolegal report dated 14 June 2019, stating:

11. [26]

    In response to the question, “If it is accepted that the claimant was capable of participating in high level cycling in the 7 month period following the accident, would this confirm or alter the underlying accuracy of your previous diagnosis? If so, why and how?”, Dr Stephen concluded:

12. [27]

    Having set out Dr Stephen’s report, the Medical Assessor stated, “I essentially agree with Dr Stephen’s final consultation report. He was obviously misled by having insufficient information concerning [the plaintiff’s] ability to cycle which finally came out with the Cycling New South Wales reports.”

13. [28]

    Under the heading “Diagnosis and Conclusion” at p 10, the Medical Assessor stated that the plaintiff suffered “L4/5 disc degenerative disease which has been aggravated by the subject motor vehicle accident but this aggravation has now ceased and the current pathological condition is degenerative L4/5 disease.”

14. [29]

    The Medical Assessor concluded at pp 10-11:

15. [30]

    As such, the Medical Assessor concluded that the second surgery was unrelated to the accident.

The grounds of judicial review

1. [31]

   At the hearing of the proceedings, counsel for the plaintiff crystallised the grounds of review into three separate issues. They are that the Medical Assessor erred by:

   1. (1)

      denying the plaintiff procedural fairness by failing to confront him about alleged inconsistencies in his medical history;

   2. (2)

      making findings unsupported by the evidence; and

   3. (3)

      failing to provide adequate reasons for rejecting the plaintiff’s expert evidence in reaching his determination.

2. [32]

   It is noted that these grounds of judicial review do not entirely accord with the grounds articulated in the plaintiff’s summons. Furthermore, only the procedural fairness ground was ever submitted to the Proper Officer. Counsel for the insurer submitted that this Court is under no duty to give the plaintiff an opportunity to make submissions additional to what is articulated in his written application: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 579; [1994] FCA 1074 (“Alphaone”) at 713, nor should the Court entertain grounds which were not properly subjected to the statutory appeals process under the MAC Act.

3. [33]

   However, as the plaintiff’s newly-articulated grounds of review substantially overlap with those set out in the summons, and as counsel for the insurer was able to address them at the hearing, I will consider all three of the plaintiff’s grounds of review in the order set out above. For the reasons which follow, it is my view that none of the grounds of review are made out.

4. [34]

   The plaintiff submitted that the Medical Assessor failed to confront him in relation to the following perceived issues:

5. [35]

   The plaintiff submitted that in the Medical Assessor’s history of the plaintiff’s bike riding activities, the only matter which he recorded as coming from the plaintiff himself is that he saw his GP two to three days after the accident, and that he had an operation on July 2018. Nothing is recorded of the plaintiff being questioned about the racing reports. The plaintiff confirms that he was not asked about these matters (Aff 1/10/2020).

6. [36]

   The plaintiff’s involvement in racing was a matter of considerable importance to the Medical Assessor’s determination. On p 5 of his reasons, the Medical Assessor recorded that the plaintiff told him that he had raced up to August 2014 at lower than his normal level.

7. [37]

   On the next page under the heading “Consistency of Presentation”, the Medical Assessor recorded that the plaintiff presented in a straightforward fashion without exaggeration. On p 7, he recorded his view that Dr Machart did not have the relevant documents related to cycle racing. Shortly after, he made the same observation about the Review Panel. The plaintiff submitted that these statements only represented the Medical Assessor’s assumptions. They were repeated on p 9, where the Medical Assessor stated that it was apparent that Dr Stephen also had not seen the racing reports, and on p 10 he referred to Dr Stephen being misled by having sufficient information concerning the plaintiff’s ability to cycle.

8. [38]

   The plaintiff submitted that at no time did the Medical Assessor raise with the plaintiff what he considered to be an important matter in his deliberations. He did not ask the plaintiff how it could be that he apparently returned to competitive cycling despite the injuries to his back of which he complained.

9. [39]

   Further, the plaintiff submitted that the Medical Assessor never asked the plaintiff about the histories he had given to other doctors, which the Medical Assessor later relied upon in his finding that the plaintiff was not truthful about his ability to cycle after the accident. According to the plaintiff, these failures amount to a denial of procedural fairness.

10. [40]

    The plaintiff referred to Minister for Immigration and Citizenship v SZGUR (2001) 241 CLR 594; (2011) 273 ALR 223 (“SZGUR”), where the High Court said AT [9]:

11. [41]

    In Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39, the Court of Appeal said at [32]:

12. [42]

    The plaintiff submitted that in the present case, he was neither confronted with the inconsistencies which the Medical Assessor took into account from the evidence, nor was he provided with an opportunity to be heard about them. Given the significance which the Medical Assessor placed on those records, it was incumbent upon him to show them to the plaintiff and allow him an opportunity to respond.

13. [43]

    The insurer submitted that it is important to distinguish between a decision maker:

14. [44]

    A decision maker must afford an affected person an opportunity to respond to an adverse conclusion “which would not obviously be open on the known material”: see SZGUR at [9].

15. [45]

    However, a decision maker is not required to engage with a person affected about every piece of evidence which the decision maker may ultimately find is adverse to the person affected: see Kioa v West (1985) 159 CLR 550; [1985] HCA 81 (“Kioa”), per Brennan J at [628]:

16. [46]

    In Alphaone, the Court stated at [591]:

17. [47]

    In Bradley v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 950 (“Bradley”), Adamson J stated at [50]:

18. [48]

    The insurer submitted that the plaintiff has incorrectly characterised the Medical Assessor’s reliance on evidence adverse to the plaintiff as an inconsistency, in order to lay the foundation for an allegation that there was a denial of procedural fairness. In his submissions, the plaintiff referred to histories apparently provided to previous MAS Assessors or medico-legal specialists, and the Medical Assessor distinguishing those opinions from his own. The plaintiff suggested that was a matter that should have been put to him.

19. [49]

    The plaintiff also refers to the alleged “misunderstanding” of the evidence about the plaintiff’s pre- and post-accident complaints of back pain and again suggests that these were matters about which the plaintiff should have been confronted. The plaintiff refers to the history as to his activities before and after the accident and it is again suggested that the plaintiff was not asked about these matters.

20. [50]

    The insurer submitted that while these were matters which the Medical Assessor considered relevant in determining the medical issue, they should not be characterised as “inconsistencies” such that the Medical Assessor was obliged to traverse these issues with the plaintiff during the medical assessment.

21. [51]

    Rather, the Medical Assessor properly considered the uncontested material gleaned from a combination of the clinical notes, the plaintiff’s history as provided in the medical assessment, the competing medical opinions, the assumptions/histories upon which those opinions were based and the remaining evidence.

22. [52]

    A medical dispute, by its very nature, involves a disagreement as to a “medical assessment matter”: see s 58 of the MAC Act. Any medical assessor, as part of his/her process of reasoning, will inevitably make findings adverse to a party to a dispute. This is inherently part of deciding the dispute.

23. [53]

    The insurer submitted that the plaintiff incorrectly contends that the failure of the Medical Assessor to put potentially adverse findings to him amounts to a denial of procedural fairness. If this was the obligation on the Medical Assessor, he would engage in a curial process of the type which the High Court in Kioa and Adamson J in Bradley expressly disavowed.

24. [54]

    As such, the insurer submitted that the process of reasoning, and the Medical Assessor’s ultimate determination, albeit adverse to the plaintiff, does not amount to a denial of procedural fairness.

25. [55]

    At the hearing of these proceedings, both parties referred to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 143; 252 CLR 480 (“Wingfoot”). In Wingfoot, the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ) stated at [47]:

26. [56]

    In these proceedings, the Medical Assessor was obligated to observe procedural fairness for the purpose of providing the parties with an opportunity to supply him with material relevant to his determination, and to make relevant submissions. For the reasons which follow, it is my view that the plaintiff was afforded that opportunity.

27. [57]

    As set out earlier in this judgment, the Medical Assessor conducted his assessment on the basis of two applications before him. The first was the plaintiff’s own application for a determination of WPI. The second was as a result of the insurer’s application for further assessment pursuant to s 62 of the MAC Act on the basis that there was additional relevant information about the plaintiff’s injury. That information included the Heffron Park Racing results, the medicolegal reports of neurosurgeon Dr Casikar dated 23 January 2019 and 4 April 2019, and the medicolegal reports of orthopaedic surgeon Dr Stephen dated 9 September 2014, 5 April 2016 and 14 June 2019 which indicated Dr Stephen’s reconsideration of his earlier assessment.

28. [58]

    Medical Assessment Guidelines issued under s 44(1)(d) of the MAC Act, and effective from 1 October 2018 (“the Guidelines”), outline the procedures to be followed for assessments under Part 3.4 of the Act.

29. [59]

    Clauses 3.13 to 3.21 of the Guidelines concern the exchange and logement of an application and reply. Clauses 3.13 and 3.15 read:

30. [60]

    Under cl 9.11, when a dispute has been referred to a Medical Assessor for assessment, the Medical Assessor shall:

31. [61]

    These clauses set out a regime for providing material to the Medical Assessor in the course of an application for assessment or re-assessment under the MAC Act.

32. [62]

    In these proceedings, the plaintiff lodged his initial application for assessment in relation to his back on 31 January 2017. On 3 March 2017, the insurer lodged its reply. In its submissions in relation to the dispute, the insurer noted that in January, February and April 2014, the plaintiff appeared to finish in first and third places in the Heffron Park A Grade races (CB 121, [16]-[19]).

33. [63]

    The insurer then lodged its application for further assessment on 21 January 2019. In its attached submissions, the insurer noted that the Medical Review Panel had stated in its reasons that “[The plaintiff] confirmed that he had not been able to return to his cycle riding after the subject motor vehicle crash. He has not had a cycle racing license since 2013” (at [4]). It had also stated that “[The lower back symptoms have persisted and limit [the plaintiff]. He has been unable to return to his previous work and recreational activities” (at [5]). The insurer submitted to the Medical Assessor that the Review Panel had therefore determined the surgery was causally related to the accident on the basis of the history provided by the plaintiff, which was inaccurate.

34. [64]

    Under the heading “Basis for application”, the insurer submitted:

35. [65]

    Under the heading “Further information”, the insurer set out the relevant extracts from the Heffron Park Racing results, submitting that “the ability to perform at the stated levels is inconsistent with the claimed accident related aggravation.”

36. [66]

    On 11 March 2019, the plaintiff lodged his reply, and on 23 May 2019, the insurer lodged supplementary submissions.

37. [67]

    It is in the context of this procedural history that this ground of review must be considered. As the High Court in Wingfoot makes clear, the obligation of the Medical Assessor to afford procedural fairness is for the purpose of providing the parties with an opportunity to supply him with material which may be relevant to the formation of his opinion, and to make submissions (at [47]). The issue of the plaintiff’s involvement in competitive cycling, and the Heffron Park Racing results, were raised in the insurer’s submissions in relation to this dispute as early as 3 March 2017, and again in its submissions before the Medical Assessor on 21 January 2019. The plaintiff did not respond to those submissions in his 11 March 2019 submissions in reply. It cannot be said that the Medical Assessor’s adverse conclusion reached on the basis of this evidence was not an “obvious and natural evaluation of the material supplied”, such that he was obligated to raise it with the plaintiff in his assessment (Alphaone at [591]).

38. [68]

    At the hearing of these proceedings, counsel for the plaintiff further referred to the SIRA Motor Accident Permanent Impairment Guidelines (“Permanent Impairment Guidelines”), made pursuant to s 44(1)(c) of the MAC Act, which apply to the assessment of permanent impairment disputes by virtue of s 133 of the Act. Clause 1.41 appears under the heading “Consistency”, and provides:

39. [69]

    Counsel for the plaintiff submitted that cl 1.41 of the Permanent Impairment Guidelines obligated the Medical Assessor to raise with the plaintiff the issue of his participation in competitive cycling during the relevant period after the accident. However, cl 1.41 directs a medical assessor to raise with a claimant inconsistencies with the assessor’s own clinical findings and the claimant’s reported history. It does not concern a situation such as in this case, where the potential “inconsistency” lies between the history provided by the plaintiff and other evidence of his non-clinical activities before the assessment. There was no dispute before the Medical Assessor that the plaintiff sustained the injury claimed, but rather whether that injury, and the second surgery, had been caused by the accident.

40. [70]

    For these reasons, it is my view that the Medical Assessor did not fail to afford the plaintiff procedural fairness. This ground of review fails.

41. [71]

    The plaintiff submitted that the Medical Assessor misunderstood the evidence about the plaintiff’s pre- and post-accident complaints of back pain. The plaintiff was not asked about those matters. However, in his certificate at p 5, the Medical Assessor recorded a history given by the plaintiff to Dr Curtis that the new symptoms of low back pain and right-sided sciatica had only occurred since the accident.

42. [72]

    On p 9, the Medical Assessor recorded that Dr Stephen noted that there were two entries from the osteopath describing the same symptoms three and two weeks prior to the accident. He then recorded that there was a gap of 3 months after the accident before the next osteopathic entry. It would appear that the Medical Assessor placed considerable weight on that matter in reaching his conclusion that the surgery was not related to the accident.

43. [73]

    The plaintiff submitted that this reasoning failed to recognise that the plaintiff had not seen a doctor for problems with his back for some years before the accident. He had, however, seen his GP within four days of the accident complaining of back pain. The plaintiff suggested that that evidence alone would suggest that there was a significant increase in his back pain beyond what might be seen as the underlying level of any problem he suffered before the accident. He submitted that the Medical Assessor was required to explain why this aspect of his history was not a significant matter in determining whether he had increased symptoms following the accident, necessitating the surgery.

44. [74]

    Further, the plaintiff submitted that the Medical Assessor’s reasons fail to deal with his case that before the accident he was able to carry out all of his usual activities, but that after the accident he was restricted not only in bike riding but in other activities. That history was significant because it demonstrated a worsening of the back problems soon after the accident.

45. [75]

    It is the plaintiff’s case that the Medical Assessor placed undue weight on the history contained in the osteopath notes, and did not place due weight to the history from the GP notes. The plaintiff characterised this imbalance as a misunderstanding of the evidence, particularly the relevance of the GP notes, or otherwise as a failure to give adequate weight to that history in reaching his conclusions, which is a procedural error.

46. [76]

    The plaintiff further submitted that the Medical Assessor’s reasons for rejecting the opinions of Dr Machart, Dr Stephen and the Review Panel were based upon the Medical Assessor’s own interpretation of the racing results. It is the plaintiff’s case that the Medical Assessor did not understand the significance of those results in the context of the plaintiff’s ability to cycle, and that his reasons for placing such significant weight on the racing results were unsubstantiated and inadequate.

47. [77]

    The insurer submitted that the plaintiff’s contentions amount to a merits review within jurisdiction. In AAI Limited t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (“McGiffen”), Simpson JA (with whom Meagher and Payne JJ agreed) stated at [88]:

48. [78]

    In Cahill v Insurance Australia Limited [2009] NSWSC 564 (“Cahill”), Campbell J said the following in respect to the question of sufficiency of evidence or dealing with evidence generally at [58]:

49. [79]

    The plaintiff’s submissions, in support of the claimed jurisdictional error, refer to the Medical Assessor placing weight on certain aspects of the evidence, and otherwise refers to the Medical Assessor having failed to give any or any adequate weight to other pieces of evidence. It is otherwise claimed that the Medical Assessor failed to deal with other evidence.

50. [80]

    The insurer submitted that any purported error as to the Medical Assessor’s consideration of the evidence is within jurisdiction, and no further consideration is required. In any event, it is self-evident from the Medical Assessor’s reasons, that he considered the competing evidence in determining causation adverse to the plaintiff.

51. [81]

    Having considered all of the evidence, the Medical Assessor determined that the plaintiff’s condition was unrelated to the subject accident. The Medical Assessor, in making this determination, articulated his reasoning process, and relevantly identified the following uncontroversial evidence:

52. [82]

    The insurer submitted that having considered this evidence, the Medical Assessor, as he was required to do, applied his own medical expertise in making his determination. As part of his decision making process, he considered the competing medical opinion and all other material placed before him. In arriving at his own medical opinion, the Medical Assessor placed more weight on particular evidence, and less weight on other evidence. The plaintiff’s challenge to the Medical Assessor’s determination as to the weight he placed on certain evidence has no foundation in a claim of jurisdictional error. There was no misunderstanding of the evidence.

53. [83]

    The Medical Assessor’s finding on causation was simply adverse to the plaintiff. The insurer submitted that the plaintiff has established no jurisdictional error.

54. [84]

    At the hearing of these proceedings, counsel for the plaintiff submitted that the Medical Assessor made several findings which did not accord with the evidence before him.

55. [85]

    Some of those findings relate to references he made to the Cycling New South Wales racing results. The first appears at p 7 of his reasons, where the Medical Assessor recorded that the Review Panel had carried out its assessment on 5 July 2017 with the same evidence as had been before Assessor Machart. The Medical Assessor stated:

56. [86]

    The second reference to the Cycling New South Wales results is on p 9, where the Medical Assessor discussed the reports of Dr Stephen. The Medical Assessor noted that when Dr Stephen wrote his initial report dated 19 September 2014, “it is apparent that Dr Stephen did not have the Cycling New South Wales reports.”

57. [87]

    Before I consider these passages in detail, I acknowledge that the reasons of a Medical Assessor are not to be construed “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 assessor’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; [2006] FCA 328 at [88].

58. [88]

    With that standard in mind, there are two things to be said in relation to the evidence referred to in these passages. The first is that the Medical Assessor appears to have made and then repeated a typographical error when referring to the plaintiff cycling after the accident up “until August 2013”. The accident itself occurred in August 2013. Earlier in his reasons, the Medical Assessor recorded that the plaintiff told him he had “last raced in August of 2014” (p 5). In my view, it is clear from the context of the reasons that the references to August 2013 on p 7 are intended to be references to August 2014, reflecting the period after the accident in which the plaintiff returned to competitive cycling.

59. [89]

    The second issue to address is the significance the Medical Assessor made of the Cycling New South Wales results to which he refers. These results, printed over some 10 pages, were from a cycling event in Bathurst on 5-6 April 2014 (CB 150-165). The plaintiff’s name only appeared on the last page under a start time of “DNS”, or Did Not Start. At the hearing of these proceedings, counsel for the plaintiff disputed that these results evinced the plaintiff’s participation in competitive cycling, as they merely recorded his attendance at a race in which he was a nonstarter.

60. [90]

    The Medical Assessor himself seemed to acknowledge this fact when he stated in the passage extracted above from p 7, “I note the only resulting sheets from Cycling New South Wales are the only listing of [the plaintiff’s] name as a non-starter in an event at Bathurst on 05-06/04/2014.” He continued to reason that as these results before the Review Panel (and Assessor Machart) did not reflect the extent of the plaintiff’s return to cycling following the accident, “It is apparent that [the Review Panel] were not aware of the amount of racing that he had undergone between the motor vehicle accident and August [2014].”

61. [91]

    For the reasons which follow, it is my view that a fair reading of the subsequent references to the Cycling New South Wales results is that they were intended to be references to the Heffron Park Racing results.

62. [92]

    The Heffron Park Racing results were provided to the Medical Assessor as part of the additional relevant information accompanying the insurer’s application for reassessment. The results were published in posts on the Heffron Park Racing Group Facebook page, at times accompanied with pictures, listing the participating race finishers in order of their placement (CB 246-256). In a post dated 15 November 2013, the plaintiff is listed as having finished 21st, and is mentioned in an accompanying article which stated, “The battle for B grade honours was effortlessly taken out by [the plaintiff] who has the uncanny ability to always follow the right wheel and has the perfect turn of speed when it matters” (CB 246-247). The posts continue to show that in a race dated 12 November 2013, the plaintiff finished 3rd; that on 17 December 2013 he finished 7th; that on 27 January 2014 he finished 2nd; that on 4 February 2014 he finished 1st, along with the comment, “Warren Doyle still has a trick or two up his sleeve and showed GPM how it’s done”; that on 11 February 2014 he finished 3rd; that on 18 February 2014 he finished 5th; and that on 25 March 2014 he finished 3rd.

63. [93]

    At the hearing of these proceedings, counsel for the plaintiff conceded that the Heffron Park Racing results did “show that the plaintiff had raced in a few races” after the accident (T 18.6-7).

64. [94]

    At p 9, the Medical Assessor highlighted that Dr Stephen had “now received the documents from Heffron Park Tuesday Night Racing” when he wrote his 14 June 2019 report. It was “as a result of this evidence, on the basis of that extra documentation” that Dr Stephen revised his initial opinion as to causation. In light of the significance of the Heffron Park Racing results to Dr Stephen’s (and the Medical Assessor’s) assessment, it it is my view that the Medical Assessor’s statement just before that “it is apparent that Dr Stephen did not have the Cycling New South Wales reports” when he write his initial report of 19 September 2014 is a mistaken reference. In my view, read fairly and as a whole, the Medical Assessor intended to refer to the Heffron Park Racing results, which were of such significance to Dr Stephen in his subsequent report.

65. [95]

    This reading also accords with the context of the references to the Cycling New South Wales results on p 7. The Heffron Park Racing results, not the Cycling New South Wales results, were the additional information “provided to both Dr Stephen and myself” demonstrating that the plaintiff was able to return to cycle racing. The Medical Assessor seemed to make the same mistake shortly thereafter when he referred to the Cycling New South Wales results showing that the plaintiff “had returned to competitive cycle racing at an A Grade level”. Only the Heffron Park Racing results, not the Cycling New South Wales results, referred to the plaintiff competing at an A Grade level.

66. [96]

    Although this mistaken referencing on the part of the Medical Assessor is unfortunate, in my view it does not lead him to arrive at findings which do not accord with the evidence. The Cycling New South Wales reports may not have evinced the plaintiff’s participation in A Grade cycling during the period between the accident and mid-2014, but the Heffron Park Racing results do. The Medical Assessor was not mistaken in reasoning on the basis that documents evincing the plaintiff’s participation in A Grade competitive cycling were not before Dr Stephen when he wrote his 19 September 2014 report, nor were they before Assessor Machart or the Review Panel when they considered the plaintiff’s application.

67. [97]

    The plaintiff’s second primary submission in relation to this ground of review is that the Medical Assessor “failed to give adequate weight” to the report of the plaintiff’s GP from 30 August 2013, four days after the accident, during which the plaintiff complained of back pain. It is the plaintiff’s case that the Medical Assessor was required to explain why he did not consider this evidence to be significant in his conclusion that the injury was not caused by the accident.

68. [98]

    There are several observations to be made in relation to this submission. The first is that there is no basis for a judicial review in this Court arising from a decision maker “failing to give adequate weight” to certain evidence. In Dunbar v Allianz Australia Limited [2015] NSWSC 119 (“Dunbar”), Fullerton J stated at [78]:

69. [99]

    The second observation to be made is that this is not in fact a case where the Medical Assessor failed to address the evidence of the plaintiff’s GP. Rather, the Medical Assessor in his reasons considered that the plaintiff had reported back and leg pain to his osteopath three weeks prior to the accident; that he complained of back pain to his GP four days after the accident; that he did not revisit his osteopath until three months after the accident; that he did not see Dr Curtis in respect of his back until over a year after the accident, during which time he participated substantially in competitive cycling; and that an MRI was not ordered until April 2014. It was in the context of this evidence that the Medical Assessor did not consider the plaintiff’s visit to his GP shortly after the accident to be determinative of causation. The Medical Assessor was entitled to make his own assessment as to the adequacy of the evidence proving the plaintiff’s injury and its cause. As in Cahill, in this case it cannot be said that there was no material supporting the Medical Assessor’s conclusion, or that the material before him admitted to only one conclusion (at [58]).

70. [100]

    For these reasons, it is my view that the Medical Assessor did make findings not supported by the evidence. This ground of review fails.

71. [101]

    At the hearing of these proceedings, counsel for the plaintiff submitted that the Medical Assessor failed to consider the expert evidence of Dr Curtis, Dr Peter Bentivoglio and Dr John Bentivoglio in reaching his determination of causation. Although this alleged error may have been expressed as a failure to respond to a substantial, clearly articulated argument, it appears that the plaintiff characterised it as a failure to provide adequate reasons for rejecting that evidence.

72. [102]

    The plaintiff submitted that at p 5 of his reasons, the Medical Assessor referred to the reports of Dr Curtis, including the report dated 12 May 2015. The Medical Assessor characterised this report as one in which Dr Curtis “made a diagnosis of acute disc prolapse affecting L5. He stated that the new symptoms of low back pain and right sciatica occurred since the motor accident.” At the hearing of these proceedings, counsel for the plaintiff noted that the opinion expressed by Dr Curtis in his 12 May 2015 report directly concerns causation (CB 180):

73. [103]

    The plaintiff submitted that nowhere in the Medical Assessor’s reasons did he refer to the causative link that Dr Curtis drew between the plaintiff’s injury and the accident.

74. [104]

    At p 5, the Medical Assessor stated:

75. [105]

    The plaintiff submitted that the Medical Assessor failed to consider the plaintiff’s expert opinions provided by Dr Curtis, Dr Peter Bentivoglio and Dr John Bentivoglio. Instead, he considered the opinion of Dr Casikar, the neurosurgeon engaged by the insurer. He then simply agreed with Dr Stephen, failing to explain his reasoning but simply agreeing with his expert opinion. The plaintiff submitted that the failure to consider this expert evidence was an error of law.

76. [106]

    The insurer referred to QBE Insurance (Australia) Limited v Alawia [2016] NSWSC 1875 at [58], where RA Hume J addressed the standard to which an administrative decision maker’s reasons are to be assessed as follows:

77. [107]

    In Farr v Insurance Australia Limited t/as NRMA Insurance [2014] NSWSC 1435 (“Farr”), Adamson J stated at [46]:

78. [108]

    The insurer submitted that contrary to the plaintiff’s assertions, the Medical Assessor’s reasons clearly recorded the plaintiff’s pre-accident medical history, the history of the accident, the history of symptoms and follow-up treatment, and review of the documentation including medical reports, clinical notes and records relating to the plaintiff’s participation in competitive cycling.

79. [109]

    The Medical Assessor diagnosed the plaintiff as suffering a L4/5 degenerative disease aggravated by the accident, which had since ceased. His ongoing condition at the time of the assessment was diagnosed as degenerative L4/5 disease which was unrelated to the accident.

80. [110]

    In determining that the surgery was unrelated to the accident, the Medical Assessor had regard to all of the material which was the subject of review, particularly the following:

    1. (1)

       that the plaintiff had suffered low back pain and right leg pain three weeks prior to the accident;

    2. (2)

       that there was a significant gap between the accident and medical treatment necessitating referral for an MRI and to Dr Curtis;

    3. (3)

       that in the intervening period, the plaintiff was undertaking professional cycling; and

    4. (4)

       that it was only after completing the professional cycling that the plaintiff attended his GP and underwent an MRI of the lumbar spine.

81. [111]

    The insurer submitted that in the circumstances, the Medical Assessor’s reasoning was logical and rational and disclosed a clear process of reasoning leading to his determination. His reasons sufficiently discharged his onus and disclosed the basis on which he arrived at his determination.

82. [112]

    In its application and before the Medical Assessor, the plaintiff relied on the reports of three doctors. The first, Dr Curtis, was his treating neurosurgeon, who performed both his 2009 surgery and the second surgery in 2018. The second was orthopaedic surgeon Dr John Bentivoglio, and the third was neurosurgeon Dr Peter Bentivoglio. All three of these doctors expressed the opinion that the proposed surgery was related to the accident. Two referred to having been told that the plaintiff continued to cycle after the accident.

83. [113]

    It is the plaintiff’s case that in his reasons, the Medical Assessor only briefly referred to these doctors and their reports, but did not mention their opinions about the critical issue of causation, and did not explain why he disagreed with their opinions.

84. [114]

    In Wingfoot at [47], the High Court considered the obligation of a medical panel (or the Medical Assessor) to address the evidence before it as follows:

85. [115]

    The High Court went on to state at [55]:

86. [116]

    The Medical Assessor was obliged to consider the evidence before him, including the expert reports of Dr Curtis, Dr John Bentivoglio and Dr Peter Bentivoglio. He set out these opinions in his reasons. However, the Medical Assessor was not obliged to arrive at his determination by reference to the competing contentions of the parties’ expert medical opinions: see Wingfoot at [47]. Rather, he was obliged to form his own opinion on the basis of the evidence before him.

87. [117]

    Furthermore, the Medical Assessor did not “simply agree with Dr Stephen” as the plaintiff submitted. In his conclusion, set out earlier in this judgment, the Medical Assessor stated that the plaintiff complained to his osteopath of back and leg pain three weeks prior to the accident; that he complained to his GP of back pain four days after the accident; and that he did not see his GP again in relation to that back pain until April 2014. In the intervening year between his accident and referral for an MRI, the plaintiff participated substantially in competitive cycling. The Medical Assessor concluded, “From that, I have concluded that the motor vehicle accident was not the major cause of [the plaintiff] seeking advice from both Dr Williams and Dr Curtis.”

88. [118]

    These reasons set out the actual path of reasoning by which the Medical Assessor arrived at his decision that the plaintiff’s injury was not caused by the accident. It cannot be said that the Medical Assessor failed to consider the plaintiff’s evidence, nor did he fail to provide reasons for rejecting that evidence. This ground of review fails.

The Proper Officer’s decision

1. [119]

   On 7 November 2019, the Proper Officer issued his determination and statement of reasons. His relevant reasons are as follows:

2. [120]

   On this basis, the Proper Officer was not satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect. As such, he dismissed the application for review.

3. [121]

   Essentially, the plaintiff says that because of the errors identified above in the certificate of the Medical Assessor, the Proper Officer ought to have referred the matter for review.

4. [122]

   The plaintiff referred to Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 (“Meeuwissen”), where Basten JA in considering the role of the Proper Officer stated at [18]:

5. [123]

   The plaintiff submitted that the Proper Officer falls into the category of persons not required or permitted to vary the outcome of the Medical Assessor’s certificate. As such, the approach to be taken by the Proper Officer is to determine whether the process by which Medical Assessor’s reasoned was in error.

6. [124]

   In Meeuwissen, Basten JA also noted at [21] that a proper officer does not need to be satisfied that the medical assessment under review was incorrect, but only that there was reasonable cause to suspect that it was. Once there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed (at [23]).

7. [125]

   The plaintiff also referred to Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848 (“Elliott”), where Campbell J dealt with a similar matter relating to the decision of a proper officer who did not to refer the matter for further assessment. After considering the decision of Basten JA in Meeuwissen, Campbell J noted at [53] that where a proper officer deals with individual arguments put before him or her, he may overlook that “he is required to answer a single question and it may be that considering all matters together could lead to a different result or a different decision from considering them separately.”

8. [126]

   In Meeuwissen, Campbell J stated at [59]:

9. [127]

   His Honour went on at [60] to note that it was not for a proper officer to decide the correctness of the assessment.

10. [128]

    The plaintiff submitted that at [11] of his reasons, the Proper Officer said, “there is also no indication that the claimant was not asked about his ability to cycle”. The plaintiff has put on an affidavit in which he gives that evidence. Regardless, the plaintiff submitted that the fact that the Medical Assessor’s reasons do not record that he was confronted with the racing results should have created a “state of unease” in the mind of the Proper Officer about the correctness of the assessment process, and therefore the outcome of the assessment itself.

11. [129]

    The Medical Assessor recorded on page 5 of his certificate that the plaintiff told him that his recreational activities had been affected, that he could ride his pushbike but not race, that he last raced in 2014 and that this was at a level which was lower than normal. The Medical Assessor then went on to place great weight upon the racing results, but did not challenge the plaintiff with them. The plaintiff submitted that this should also have created a “state of unease” in the mind of the Proper Officer.

12. [130]

    At [12] of the Proper Officer’s decision, he also recorded his opinion of the plaintiff’s “professional cycling”. The plaintiff submitted that it is unclear why Dr Stephen, or the Proper Officer, believed the plaintiff’s cycling to be professional in nature. The Proper Officer went on to note that the Medical Assessor placed weight on the information, but then said that the plaintiff had “not indicated how the Medical Assessor’s consideration of the information or the causation decision is incorrect”. In the plaintiffs submission this was incorrect for the reasons set out in relation to the case sought to be made out against the certificate and reasons of the Medical Assessor.

13. [131]

    The plaintiff submitted that on this basis, the Proper Officer ought to have developed a requisite state of unease about the procedure undertaken by the Medical Assessor, and therefore allowed a review. As such, the decision of the Proper Officer should be set aside.

14. [132]

    The insurer submitted that the role of the Proper Officer was one of gate keeper. He was required to determine if there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.

15. [133]

    In the event the Court accepts the insurer’s primary submissions that there is no jurisdictional error in the decision of the Medical Assessor, self-evidently, the decision of the Proper Officer should be upheld.

16. [134]

    The role of the Proper Officer was to determine whether, on the basis of the plaintiff’s application, he was satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect. For the reasons given in relation to the plaintiff’s judicial review of the Medical Assessor’s decision, it is my view that that decision was not in error. As such, the Proper Officer did not err in failing to refer the decision for review, nor was it, in my view, material to that decision that the Proper Officer mistakenly referred to the plaintiff’s participation in “professional” rather than “competitive” cycling.

Result

1. [135]

   The result is that the plaintiff has failed to establish an error of law on the face of the record or jurisdictional error. The judicial review fails. The plaintiff’s summons filed 17 December 2019 is dismissed.

Costs

1. [136]

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

   1. (1)

      The plaintiff’s summons filed 17 December 2019 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs on an ordinary basis.