Slade v Insurance Australia Ltd t/as NRMA

1. [1]

   By an amended summons filed on 11 May 2020, the plaintiff, Ms Slade, has sought judicial review of decisions of: (a) the third defendant who is relevantly the proper officer of the second defendant, the State Insurance Regulatory Authority (SIRA); and, (b) the fourth defendant, Dr Jager, who is a medical assessor appointed by SIRA for the purposes of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act).

2. [2]

   The decisions of which Ms Slade seeks judicial review relate to her claim for damages arising out of the motor vehicle accident that occurred on 28 April 2015, near Gloucester in New South Wales. The first defendant, Insurance Australia Ltd trading as NRMA, was the insurer in respect of the other vehicle involved in the accident and has admitted liability.

3. [3]

   All of the defendants other than NRMA have filed submitting appearances and, as a result, NRMA is the only active defendant.

Background

1. [4]

   On 28 April 2015, Ms Slade was the driver of a car that hit another vehicle that was stationary on the road and her car flipped over and landed back on its wheels facing in the wrong direction. This accident is referred to as the 2015 motor accident. She had six months off work with physical injuries and pain. She experienced no psychological stress, however, until mid-February 2016 when she had a “near miss” when driving and experienced a panic attack. This subsequent event is referred to as the 2016 near miss.

2. [5]

   After the 2016 near miss, Ms Slade escalated her alcohol consumption dramatically to a litre of vodka a day and developed nightmares and insomnia and experienced flashbacks to the first accident. She has received intensive treatment from a psychologist and a psychiatrist and she continues to take high-dose antidepressant medication, high dose alpha blocking medication and sedative and atypical antipsychotic medication.

3. [6]

   Despite that intensive treatment and a reduction in her alcohol consumption, Ms Slade continues to feel anxious most of the time with reduced enjoyment and sleep, flashbacks, nightmares, avoidance behaviour, reduced energy, appetite, libido and concentration, and passive suicidal thoughts.

4. [7]

   Liability having been admitted by NRMA, as the insurer of the insured vehicle, disputes arose between Ms Slade and NRMA concerning the following matters:

   1. (1)

      whether Ms Slade’s degree of permanent impairment as a result of the injury caused by the 2015 motor accident was greater than 10%;

   2. (2)

      whether her treatment was related to the injury caused by the 2015 motor accident; and

   3. (3)

      whether any such treatment was reasonable and necessary in the circumstances.

5. [8]

   On 26 September 2018, an application for the assessment of these matters was lodged on behalf of Ms Slade and the matters were referred to the Medical Assessment Service (MAS).

6. [9]

   On 9 April 2019, Ms Slade was assessed by a medical assessor, Dr Jager, the fourth defendant.

7. [10]

   On 24 April 2019, Dr Jager gave three certificates in relation to the assessment of the matters referred to him to the following effect:

   1. (1)

      in MAS matter number 2018/02/3778, that the injury, being Chronic Post-traumatic Stress Disorder (PTSD), caused by the 2015 motor accident gave rise to a permanent impairment which was not greater than 10%;

   2. (2)

      in MAS matter number 2018/01/3773, that certain treatments listed in the certificate related to the injuries caused by the 2015 motor accident and that the other treatments did not; and

   3. (3)

      in MAS matter number 2018/01/3773, that certain treatments listed in the certificate were reasonable and necessary in the circumstances and that the other treatments were not.

8. [11]

   In accordance with s 61(9) of the MAC Act, the medical assessor gave reasons for his findings and these reasons were expressly incorporated in the certificates.

9. [12]

   On 1 July 2019, Ms Slade applied, under s 63 of the MAC Act, to the proper officer of SIRA to refer the medical assessments by the medical assessor to a review panel of medical assessors for review on the basis that the assessments were incorrect in material respects.

10. [13]

    On 16 August 2019, the proper officer determined that she was not satisfied that there was reasonable cause to suspect that the medical assessments were incorrect in any material respect and accordingly the review application was dismissed.

Ms Slade’s judicial review application

1. [14]

   On 15 November 2019, Ms Slade filed a summons invoking the supervisory jurisdiction of this Court, confirmed by s 69 of the Supreme Court Act 1970 (NSW), seeking, among other things:

   1. (1)

      an order setting aside “the Certificate (MAS matter number 2018/01/3773) and Statement of Reasons issued by [SIRA] and constituted by [the medical assessor] on 24 April 2019”; and

   2. (2)

      an order “setting aside the Statement of Reasons issued by [SIRA] and constituted by the [proper officer] on 16 August 2019”; and

   3. (3)

      an order remitting the matter to SIRA for determination according to law.

2. [15]

   On 11 May 2020, the plaintiff filed an amended summons in which, in addition to the orders sought in the original summons, she also sought orders which included an order “setting aside the Certificate (MAS matter number 2018/02/3778) and the Statement of Reasons issued by [SIRA] and made by the [medical assessor] on 24 April 2019”.

3. [16]

   As a result, it appeared, and the parties accepted for the purposes of these proceedings, that the medical assessor’s assessments covered by the three certificates issued on 24 April 2019 were all challenged in these proceedings.

4. [17]

   In respect of the medical assessor’s certificates and statement of reasons of 24 April 2019, the errors of law on the face of the record were contended to be, in substance:

   1. (1)

      that the certificates were “incorrect in a material respect” in that the medical assessor did not correctly apply the legal principles in relation to causation; and

   2. (2)

      the medical assessor “failed to provide sufficient reasons” for his decisions.

5. [18]

   In relation to the proper officer’s determination refusing the review application and statement of reasons of 16 August 2019, the grounds relied upon by the plaintiff were:

   1. (1)

      jurisdictional error; and/or

   2. (2)

      errors of law on the face of the record; and alternatively,

   3. (3)

      failure to exercise her statutory power in making the decision.

6. [19]

   The proper officer’s jurisdictional error or error of law on the face of the record was said to be constituted by her failure to apply the correct legal test.

7. [20]

   If it is determined that the medical assessor’s certificates should be set aside, it will be unnecessary to address whether the proper officer’s determination was affected by any relevant error or failure to exercise statutory power. Accordingly, I shall consider the challenge to the medical assessor’s certificates first and then only consider the challenge to the proper officer’s determination should that be required.

8. [21]

   Before doing so, however, it is necessary to address a preliminary issue.

Extension of time

1. [22]

   Under r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), proceedings for judicial review of a decision must be commenced within three months of the date of the decision. In the present case, the proceedings were not commenced within three months of the medical assessor’s decisions set out in the three certificates given on 24 April 2019. The plaintiff sought, informally, an extension of time in that regard and the first defendant consented to an extension of time being granted, on the basis that it was appropriate for Ms Slade to exhaust her opportunity to seek a review of the medical assessor’s decision, before commencing proceedings in this Court. In my view and in accordance with the approach outlined by Beazley JA (McColl and Macfarlan JJA agreeing) in Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91] – [92], this is an appropriate course for Ms Slade to have taken. In these circumstances, I shall grant the plaintiff an extension of time in which to commence the present proceedings to 15 November 2019.

The medical assessor’s certificates and reasons

1. [23]

   As noted above, the medical assessor dealt with three matters: (a) whether the injuries caused by the 2015 motor accident gave rise to a permanent impairment which was not greater than 10%; (b) whether the treatments in question related to injuries caused by the 2015 motor accident; and, (c) whether the treatments in question were reasonable and necessary in the circumstances.

2. [24]

   Formally, a certificate was given in respect of each of those matters but there was only one set of reasons accompanying the certificates. In each case, these reasons were expressly stated to form part of the certificate.

3. [25]

   In his reasons for decision, the assessor identified the three matters, or medical disputes, that had been referred to him and noted the material which he had seen and considered. The injuries to be assessed were described as:

4. [26]

   In addition, the assessor listed at some length the treatments which were the subject of dispute.

5. [27]

   The assessor recorded in his reasons the history given by Ms Slade which relevantly included that:

   1. (1)

      she was on no psychiatric medication at the time of the 2015 motor accident and she had no family history of psychiatric illness;

   2. (2)

      prior to the 2015 motor accident, she always felt “ten foot tall and bullet-proof” and was a very outgoing person who enjoyed playing rhythm guitar, drums and vocals in a rock band;

   3. (3)

      in the 2015 motor accident:

   4. (4)

      her treatment after the 2015 motor accident included physiotherapy, anti-inflammatory and analgesic medication but she was not treated by a psychiatrist or psychologist nor did she have any psychiatric medication;

   5. (5)

      Ms Slade said that after the 2015 motor accident she had no psychiatric problems and that her life was going fine and “basically back to normal” except for pain; and

   6. (6)

      immediately after the 2016 near miss, which occurred when she was driving to work, Ms Slade:

6. [28]

   As to her current and proposed treatment, the assessor recorded:

7. [29]

   In addition to finding that there were no inconsistencies in her presentation, the assessor also noted that she was unfit for all employment.

8. [30]

   Next the assessor reviewed the relevant documentation and, in particular, noted, inter alia:

9. [31]

   The evidence before the Court established that the documentation provided in support of Ms Slade’s application to the MAS included an occupational therapy report by Ms Erika Stevenson dated 10 June 2017 which set out in some detail: Ms Stevenson’s assessment of Ms Slade; the past gratuitous assistance she had received; her present and future domestic care assistance and transportation assistance requirements; and, other matters in relation to future occupational therapy, physiotherapy, and related needs. Although this assistance is referred to in a number of items on the List of Treatment Disputes to be Assessed (on pp 10 and 11 of the assessor’s reasons), the assessor did not refer to, or review, Ms Stevenson’s report in the section of his reasons under the heading “Review of Documentation” or elsewhere.

10. [32]

    Furthermore, even though the assessor summarised some of Dr Parsonage’s conclusions in his report of 11 July 2017, as set out in the passage quoted above, the assessor did not refer to, or comment on, the last paragraph of Dr Parsonage’s report which stated:

11. [33]

    Under the headings “Conclusions”, the assessor stated:

12. [34]

    The assessor also determined that Ms Slade’s impairment was now permanent.

13. [35]

    The assessor then set out his assessment of permanent impairment as 19% Whole Person Impairment (WPI). This assessment was described as being “made in accordance with the American Medical Associations Guides to the Evaluation of Permanent Impairment (Fourth Edition) and the Motor Accident Permanent Impairment Guidelines 1 June 2018”. It is implicit that this assessment of the WPI was the degree of impairment at the time of the assessment.

14. [36]

    Under the heading “Apportionment”, the assessor indicated that he had calculated the impairment that existed before the 2016 near miss as 0% WPI. In a number of places, this is described as “Subsequent impairment” or “Subsequent % whole person impairment”. These descriptions, however, appear to be erroneous. The finding of 0% WPI related to the degree of previous impairment, that is, psychiatric impairment prior to the 2016 near miss. It should not have been described as an assessment of “subsequent impairment”.

15. [37]

    Under that same heading “Apportionment”, the assessor said:

16. [38]

    On that basis, the assessor certified that the injury, being PTSD, caused by the 2015 motor accident gave rise to a permanent impairment which was not greater than 10%. It can be noted that the assessor did not explain why he apparently subtracted the 19% “Subsequent % permanent impairment” from the 19% “Current % permanent impairment” to arrive at his “Final % permanent impairment” of 0%. Nor did he provide any other relevant reasoning to explain his conclusion that the degree of permanent impairment as a result of the injury caused by the 2015 motor accident was less than 10%, namely 0%.

17. [39]

    The assessor then turned to consider the question whether the treatments claimed by Ms Slade related to the injuries caused by the 2015 motor accident. Under the heading “Treatment – Causation”, the assessor stated:

18. [40]

    Finally, under the heading “Treatment – Reasonable and Necessary”, the assessor concluded that certain of the treatments claimed by Ms Slade were reasonable and necessary and found that other treatment was not and said, inter alia:

19. [41]

    In neither the “Treatment – Causation” section nor the “Treatment – Reasonable and Necessary” section of his reasons did the assessor specifically consider or refer to Ms Stevenson’s report which dealt in detail with gratuitous personal and domestic assistance and other related matters. Nor did he refer to the last paragraph of Dr Parsonage’s report, which has been quoted above. The assessor did not explain why their opinions in these regards should not be accepted.

20. [42]

    On the bases set out in his reasons, the assessor gave certificates to the effect that:

    1. (1)

       Ms Slade’s PTSD, caused by the 2015 motor accident, gave rise to a permanent impairment which was not greater than 10%;

    2. (2)

       certain treatments listed in the second certificate related to the injuries caused by the 2015 motor accident and other treatments did not; and

    3. (3)

       certain treatments listed in the third certificate were reasonable and necessary in the circumstances and other treatments were not.

The medical assessor’s certificates - Grounds of review

1. [43]

   The plaintiff’s two grounds of review in relation to the medical assessor’s three certificates were, in substance that:

   1. (1)

      the assessor erred in law when determining the degree of permanent impairment as a result of the injury caused by the 2015 motor accident and whether the treatments claimed related to the injury caused by the motor accident because he did not apply the correct principles in relation to causation; and

   2. (2)

      the assessor failed to give adequate reasons for his decisions.

The medical assessor’s certificates - Submissions

1. [44]

   In substance, Mr Robinson of Senior Counsel, who appeared with Mr Malouf for Ms Slade, submitted that the medical assessor made errors of law on the face of the record in relation to each of the matters concerning which the assessor gave a certificate.

2. [45]

   Reflecting the first ground of review, the plaintiff submitted that the assessor made errors of law as to the requirements of the relevant provisions of the Motor Accident Permanent Impairment Guidelines (1 June 2018) (the 2018 Guidelines) including, in particular, par 1.34 and as to the legal principles to be applied in determining causation.

3. [46]

   As to the second ground of review, the plaintiff’s submissions were to the effect that the assessor failed to give adequate reasons for his decisions in relation to:

   1. (1)

      the degree of Ms Slade’s whole person impairment “as a result of the injuries caused by the [2015] motor accident”;

   2. (2)

      whether the treatments claimed by Ms Slade “relate[d] to the injury caused by the [2015] motor accident”; and

   3. (3)

      whether any such treatments claimed by Ms Slade were “reasonable and necessary in the circumstances”.

4. [47]

   The principal area in which the assessor failed to give reasons was said to be in relation to the causal connection between the impairment and the injury suffered in the 2015 motor accident.

5. [48]

   Mr Rewell of Senior Counsel, who appeared for NRMA, submitted in effect that there were no errors of law on the face of the record. In particular, it was contended in relation to the assessor’s assessment of impairment caused by the 2015 motor accident that there was a fundamental distinction between the injury caused by an accident and any impairment resulting from injury caused by the accident. Thus, it was said that, while an injury, PTSD, may have been caused by the 2015 motor accident, there was no impairment resulting from this injury before the 2016 near miss. In these circumstances, the assessor made no error in his application of par 1.34 of the Guidelines when he concluded that the degree of permanent impairment as a result of the injury caused by the 2015 motor accident was 0%.

6. [49]

   Similarly, in relation to the treatment disputes, it was contended that the need for treatment or attendant care and domestic assistance was the consequence of impairment resulting from an injury. In the present case, because no impairment resulted from the 2015 motor accident, it was said that no need for certain treatment or attendant care or domestic assistance could have been caused by that accident. Accordingly, it was submitted that there was no error in the assessor’s finding that this treatment or care and assistance was not related to the psychiatric injury, PTSD, caused by the 2015 motor accident because that accident did not give rise to any impairment.

7. [50]

   Further, it was contended in substance that, since the need for the care and assistance was not caused by the 2015 motor accident, the assessor did not err in law by concluding that such care and assistance, and part of the psychiatric and psychological treatment and medication, were not reasonable and necessary.

8. [51]

   In addition, it was submitted that, in the assessor’s clinical judgement as a psychiatrist, he determined that Ms Slade’s symptoms did not give rise to a need for the treatment or care and assistance that was rejected, and no error was disclosed.

9. [52]

   As I understood his submissions, Mr Rewell also contended that, in the circumstances and particularly having regard to the distinction between impairment and injury, the assessor’s reasoning was adequately set out in the reasons incorporated into the three certificates.

The medical assessor’s certificates - Consideration

1. [53]

   Part 3.4, ss 57 to 65, of the MAC Act provides for the medical assessment of injuries and impairment, as well as treatment in relation to those injuries and impairment, which arise from motor vehicle accidents which occurred prior to 1 December 2017.

2. [54]

   Section 58(1) of the MAC Act identifies the types of matters that are to be the subject of medical assessment under Pt 3.4 and relevantly provides:

3. [55]

   In relation to matters concerning treatment referred to in s 58(1)(a) and (b), “treatment” is defined in s 42 of the MAC Act as follows:

4. [56]

   It can be seen that the three matters referred to the assessor in the present case fell within s 58(1)(a), (b) and (d). These types of matters can be referred, under s 62, to a medical assessor for assessment.

5. [57]

   Section 61 of the MAC Act deals with the certification and status of an assessor’s assessment of matters referred to the assessor under s 62. The relevant provisions of s 61 include:

6. [58]

   In relation to matters falling within s 58(1)(d) of the MAC Act which are to be assessed by a medical assessor, the method for assessing the degree of impairment is governed by s 133 of that Act. Section 133(1) requires the assessment of the degree of permanent impairment of an injured person to be expressed as a percentage and subs (2) states that the assessment is to be made in accordance with the Motor Accidents Medical Guidelines issued for that purpose or, if there is no such guideline, then in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition.

7. [59]

   Section 44 of the MAC Act empowers SIRA to issue Motor Accidents Medical Guidelines. The 2018 Guidelines, which have been referred to above, are the relevant guidelines for present purposes. They have been issued by SIRA under s 44(1)(c) of the MAC Act, effective from 1 June 2018, and apply to motor accidents occurring between 5 October 1999 and 30 November 2017, including the 2015 motor accident in this case.

8. [60]

   The essential issue in the present case was whether Ms Slade’s injury and related impairment, as well as any consequent treatments, were causally related to the 2015 motor accident. How an assessor is to approach the issue of causation of permanent impairment is dealt with in various paragraphs of the 2018 Guidelines.

9. [61]

   Paragraphs 1.5 to 1.7 of the 2018 Guidelines are found under the heading “Causation of injury” and provide (in the form applicable to the MAC Act):

10. [62]

    As to the evaluation of “impairment … as a result of the injury caused by the motor accident”, pars 1.9, 1.17 and 1.18 of the 2018 Guidelines also relevantly state:

11. [63]

    How impairment is to be assessed when there is pre-existing impairment or subsequent injury is dealt with in pars 1.31 and 1.34, as follows:

12. [64]

    It can be noted that, in relation to previous impairment, par 1.31 requires that the value of pre-existing symptomatic permanent impairment is to be subtracted from the current WPI value in order to evaluate the permanent impairment related to the relevant motor accident. In the case of subsequent impairment, however, no similar subtraction is mandated by par 1.34.

13. [65]

    Finally, Pt 3.4 of the MAC Act also provides for review of a medical assessor’s certificates. Under s 63(1), a party to a medical dispute may apply to the proper officer of SIRA to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. The other subsections of s 63 set out how such an application is to be dealt with.

14. [66]

    Section 61(9) of the MAC Act imposes a duty on a medical assessor, in a case such as the present, to set out in the certificate the reasons for any finding made by the assessor “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence”. Section 61(2) establishes that “[a]ny such certificate as to a medical assessment matter is conclusive evidence as to the matters certified … in any assessment by a claims assessor in respect of the claim concerned”. The “matters certified” are those mentioned in s 61(1), which relevantly provides:

15. [67]

    In the present case, the matters referred to the assessor in the present case were the three matters within s 58(1)(a), (b) and (d), which have been identified above.

16. [68]

    Accordingly, by operation of s 61(9), the assessor was required to give reasons for each of his findings in relation to the three matters referred to him and these reasons were to be set out in the certificate given under s 61(1).

17. [69]

    It was not in dispute in these proceedings that the assessor’s reasons incorporated into his three certificates formed part of the “record” and that a failure by the assessor to give adequate reasons for his decisions would constitute an error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [28] and [55].

18. [70]

    In addition, Wingfoot establishes a number of further propositions which are generally applicable in the present case, notwithstanding the differences in the wording of the statutory regime under consideration in that case compared to the provisions of the MAC Act and the 2018 Guidelines. These propositions are:

    1. (1)

       The extent of reasons required to be given in respect of a decision depends on the statutory context and factual circumstances in which the decision is made: Wingfoot at [45];

    2. (2)

       What is to be set out in the statement of reasons in a case such as the present is the actual path of reasoning by which the assessor arrived at the opinion that he actually formed in relation to the medical assessment matters referred to him: Wingfoot at [48]; and

    3. (3)

       The standard required of a written statement of reasons given by a medical assessor under s 61(9) of the MAC Act is that the statement of reasons must explain the assessor’s actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: Wingfoot at [55].

19. [71]

    The statutory context relevant to a medical assessor making assessments under Pt 3.4 of the MAC Act includes the requirements of the 2018 Guidelines, by virtue of s 133(2) of that Act. These Guidelines include the three stages set out in par 1.18, which has been quoted above. The reasons should make clear that these stages have been followed.

20. [72]

    In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]-[122] Basten JA held, in a different but similar context to the present:

21. [73]

    The High Court also said in Wingfoot to say, at [55]:

22. [74]

    This quotation gives some emphasis to the point that, if a medical assessor’s reasons are inadequate, it may be difficult or impossible to determine whether the assessor has made an error of law.

23. [75]

    As provided in s 133(2) of the MAC Act, the assessor in this case was required to determine, inter alia, Ms Slade’s degree of permanent impairment as a result of the injury caused by the motor accident in accordance with the 2018 Guidelines.

24. [76]

    Paragraphs 1.5 and 1.6 of the 2018 Guidelines establish that an assessor making such an assessment must:

    1. (1)

       determine “whether the injured person’s impairment is related to the accident in question”;

    2. (2)

       in doing so, be aware of “the common law principles that would be applied by a court (or claims assessor) in considering such issues”;

    3. (3)

       determine whether “a physical, chemical or biologic factor contributed to the occurrence of a medical condition [or impairment]” by verifying both that:

    4. (4)

       determine whether “the injury (and the associated impairment)” was caused or materially contributed to by the motor accident, noting that the accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.

25. [77]

    An assessor would also have to take into account the fact that par 1.17.1 of the 2018 Guidelines indicates that the question of causation of impairment turns on whether the impairment “arises from” an injury caused by the accident.

26. [78]

    Finally, in the case of subsequent injuries, an assessor has to apply par 1.34 of the Guidelines when “impairment in the same region … has occurred subsequent to the relevant motor accident”. In this situation:

    1. (1)

       if there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, the value of the permanent impairment is to be calculated; and

    2. (2)

       the value of the permanent impairment resulting from the relevant motor accident is also to be calculated.

27. [79]

    As has been noted above, it is significant that, unlike the situation under par 1.31, the assessor is not required or directed to subtract the whole or any part of the value of the subsequent impairment from the value of the current impairment. In fact, par 1.34 gives no specific guidance to an assessor as to how the values calculated in accordance with that paragraph are to be used. This being so, the common law principles that would be applied by a court in dealing with such a situation, can provide guidance, as envisaged by pars 1.5 to 1.7 of the 2018 Guidelines.

28. [80]

    In the context of determining questions of causation in relation to motor accidents in accordance with “the … principles that would be applied by a court (or claims assessor) in considering such issues”, the reference in par 1.5 to “common law principles” is to be understood as referring to the legal principles that courts or claims assessors are required to apply in determining causation. This includes not only common law principles, in the strict sense, [1] but also such principles as modified or explained by statutory provisions, such as s 5D of the Civil Liability Act 2002 (NSW) (CL Act), where applicable. This approach is consistent with Windeyer J’s observation in Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68 that:

29. [81]

    The approach is also consistent with the remarks of Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [27] where it was held that:

30. [82]

    Section 5D of the CL Act relevantly provides:

31. [83]

    An indication of the nature of the causal connection between the impairment and the motor accident relevant under the 2018 Guidelines, when determining the degree of impairment attributable to a motor accident under s 58(1)(d) of the MAC Act, is given by the references to whether the injured person’s impairment “is related to the accident”, in par 1.5, or “arises from an injury caused by the accident” in par 1.17.1. These references may also be of assistance in addressing the scope of liability element of causation under s 5D(1)(b) CL Act.

32. [84]

    Furthermore, and specifically in relation to the situation covered by par 1.34 of the 2018 Guidelines, there are common law principles that address the problem of subsequent injuries and impairment and how the values required to be calculated under that paragraph might be used to determine the degree of WPI “as a result of the injury caused by the motor accident” where there are subsequent injuries or impairment.

33. [85]

    These principles were set out in the judgment of Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003; 10 MVR 570 (Oakley) and have been accepted by the Court of Appeal in cases such as Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSWCA 115 at [29]-[30]; Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202 (Falco) at [13] and [94]; 71 MVR 454; and Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [70] and [130]. In Oakley, Malcolm CJ said (at 67,577):

34. [86]

    Sackville AJA in Falco at [94] and [95] noted that:

35. [87]

    These observations provide an example of how the principles in Oakley should be applied in a case such as the present.

36. [88]

    Indeed, it appears to me that par 1.34 of the 2018 Guidelines (and the corresponding provision in the previous version of the guidelines) may have been drafted with these common law principles in mind.

37. [89]

    The situation covered by par 1.34 is where “there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region”. It has been held that the words "unrelated injury or condition" in this context refer to the event causing the subsequent injury, not the medical description of the subsequent injury: GIO General Limited v Smith [2011] NSWSC 802 at [49] (Hoeben J, as his Honour then was); 59 MVR 69. This is consistent with the principles in Oakley, which depend on whether the subsequent event was related or unrelated to the earlier accident, based on whether the subsequent event would or would not have occurred had the plaintiff not been in the physical condition caused by the earlier accident.

38. [90]

    The injuries and damage or impairment covered by the Oakley principles are, like the impairment to be assessed under par 1.34, injuries and damage or impairment that result from a subsequent event. The first Oakley category concerns events or accidents that would not have occurred but for a previous relevant event in which the claimant had been injured. Thus, the first category applies to a “related” injury or condition. The second and third Oakley categories, however, concern injuries resulting from a subsequent event that “would have occurred had the plaintiff been in normal health”, which is, in other words, an “unrelated event” that leads to “subsequent and unrelated injury” within the meaning of par 1.34. The subsequent event and the associated injury or condition is “unrelated” because that event was not brought about by, or causally related to, the claimant’s condition as a result of the earlier accident.

39. [91]

    When the Oakley principles speak of “damage” and “aggravation”, on the one hand, and “injury”, on the other, in clauses such as “but the damage sustained is greater because of aggravation of the earlier injury”, this reflects the distinction between “impairment” and “injury”, as those terms are used in the MAC Act and the 2018 Guidelines. I do not accept Mr Rewell’s submission to the effect that, while an injury, PTSD, was caused by the 2015 motor accident, because there was no impairment resulting from this injury before the 2016 near miss, there was no impairment which resulted from the PTSD caused by the 2015 motor accident.

40. [92]

    In a situation such as the present, the second and third categories in Oakley provide common law principles to be applied by a medical assessor when determining, in accordance with the 2018 Guidelines, to what extent damage or impairment have been caused by injury suffered in an earlier motor accident when a subsequent unrelated event leads to further relevant damage or impairment. It is for this reason that par 1.34 requires the medical assessor to calculate: (a) the value of the permanent impairment resulting from the subsequent unrelated injury; and (b) the value of the permanent impairment resulting from the relevant motor accident, but does not require the assessor to subtract one value from the other in every case. Such a subtraction might be appropriate if the situation fell within the third category in Oakley but might be entirely inappropriate in situations within the second Oakley category.

41. [93]

    In oral submissions, Mr Rewell submitted in effect that it would place an impossible burden on a medical assessor to do the exercise the medical assessor is required to do as in this case by par 1.34 of the 2018 Guidelines and then to apply the principles in Oakley. This submission should not be accepted.

42. [94]

    The Court of Appeal’s decision in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 provides an illustration, in a different but quite similar context, of what is required of a medical assessor (or review panel) when considering a claim involving an earlier accident, such as the 2015 motor accident, which led to psychological injury, and a subsequent “unrelated” event, such as the 2016 near miss, which also led to psychological injury and impairment.

43. [95]

    In Johnson, the worker sustained psychological injury in 2014 during the course of her employment with the Secretary of the Department of Education. Subsequently, in 2017, the worker sustained psychological injury while working with another employer, Aboriginal Hostels Ltd. The worker claimed lump-sum compensation under the Workers Compensation Act 1987 (NSW). This claim required an assessment to be made of the worker’s WPI. Certificates from approved medical specialists (AMSs) certified that the worker’s WPI was 19% and 17%. Either percentage would have entitled the worker to lump-sum compensation. The Secretary requested the matter be referred to an Appeal Panel of the Workers Compensation Commission on the basis that the latter AMS certificate contained a demonstrable error. The Appeal Panel determined that the certificate should be revoked and a new medical assessment certificate issued certifying that the percentage WPI of the worker as a result of the first injury was 6%. If that assessment were to stand, the worker would not have been entitled to lump-sum compensation.

44. [96]

    On an application under s 69 of the Supreme Court Act 1970 (NSW), Garling J concluded that the certificate issued by the Appeal Panel contained an error on its face and the worker was entitled to succeed in her claim. His Honour concluded that the decision that ought to have been reached by the Appeal Panel was that the worker’s WPI was 19% and not 6%, as a result of the first injury. Accordingly, orders were made quashing the decision of the appeal panel and remitting the matter to the Registrar to be dealt with in accordance with law. The Secretary sought leave to appeal. Leave to appeal was granted but the appeal was dismissed.

45. [97]

    The Court of Appeal noted that problems of causation such as arise in the present case are not new to the law and were even raised in relation to liability for damnum iniuria datum under the Lex Aquilia, which dates from the middle of the Roman Republic. [2]

46. [98]

    In Johnson, the Court of Appeal was concerned with the phrase “the degree of permanent impairment of the person as a result of an injury” as it appears in both ss 319(c) and 326(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). This is, in substance, identical to the phrase in s 58(1)(d) of the MAC Act, “the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident”, which applies in the present matter. In relation to that phrase, Emmett AJA explained, at [55]:

47. [99]

    Substantially the same approach is to be applied in the present case, having regard to the relevant provisions of the MAC Act and the 2018 Guidelines.

48. [100]

    His Honour accepted, at [70], that the principles derived from State Government Insurance Commission v Oakley, which have been referred to above, were the applicable principles. It was not suggested that applying these principles was a task beyond the ability of the medical assessors and the Appeal Panel of the Workers Compensation Commission.

49. [101]

    Simpson AJA agreed with Emmett AJA’s conclusion and her Honour’s reasons are worth quoting at some length. From [129] to [135], her Honour said:

50. [102]

    In my view, substantially the same reasoning applies in the present case. In relation to issues of causation, the medical assessor was required to undertake a careful analysis of all the evidence and, in light of that evidence, consider:

    1. (1)

       whether what occurred in the 2015 motor accident could have caused, or contributed to, the impairment resulting from Ms Slade’s PTSD, which is a medical determination, as specified in par 1.6(1) of the 2018 Guidelines;

    2. (2)

       whether what occurred in the 2015 motor accident did cause, or contribute to, the impairment caused by Ms Slade’s PTSD, which is a non-medical determination, as specified in par 1.6(2), noting that the motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible, as provided in par 1.7.

51. [103]

    In carrying out the second element of this process in a case where there is a subsequent, unrelated event leading to relevant impairment, the assessor was required to apply pars 1.5, 1.7 and 1.34 of the 2018 Guidelines, as informed by the principles in relation to causation that would be applied by a court in considering such issues, including:

    1. (1)

       s 5D(1)(a) and (b) of the CL Act, which provisions are reflected to some extent in pars 1.6 and 1.7 of the 2018 Guidelines; and

    2. (2)

       the principles in Oakley, which assist to determine how the permanent impairment resulting from the PTSD caused by the earlier motor accident is to be determined based on the values calculated, as required by par 1.34 of the Guidelines, and in light of s 5D(1)(b) of the CL Act.

52. [104]

    The principles in Oakley establish, relevantly for present purposes, in effect that:

    1. (1)

       Where the further injury or impairment results from a subsequent incident, which would not have occurred had the claimant not been in the condition caused by the earlier motor accident, the added damage should be treated as caused by the earlier motor accident. In this situation, par 1.34 is not engaged because the “injury or condition” is not “unrelated”.

    2. (2)

       Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but impairment is sustained or is greater because of aggravation of the earlier injury, the additional impairment resulting from the aggravated injury should be treated as caused by the earlier motor accident.

    3. (3)

       Where the further injury or impairment results from a subsequent incident, which would have occurred even if the claimant had not been in the condition caused by the earlier motor accident, but the impairment sustained includes no element of aggravation of the earlier injury, the subsequent incident and further impairment should be regarded as causally independent of the earlier motor accident.

53. [105]

    In the latter two situations, par 1.34 is engaged because the “subsequent … injury or condition” is “unrelated” to the first motor accident, as that expression is to be understood in that paragraph. The Oakley principles provide a structure of analysis which is of assistance when applying the approach referred to in pars 1.5 – 1.7 and 1.34 of the 2018 Guidelines and s 5D(1)(b) of the CL Act.

54. [106]

    The application of the Oakley principles in this way is consistent not only with the approach in Johnson but also with previous motor accident cases dealing with the predecessor of par 1.34, which was in identical terms in the previous version of the guidelines. Those cases included, for example: GIO General Limited v Smith [2011] NSWSC 802 at [54]; Smith v Insurance Australia Ltd [2018] NSWSC 1606 at [37] to [40]; and Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096 at [56] to [61]; 89 MVR 298. It can be noted that although Campbell J in Coventry did not refer expressly to Oakley, his Honour did refer to essentially the same principles contained in other authorities, at [57] to [59].

55. [107]

    Turning now to consider the assessor’s reasons for his findings in his certificates, I note that he found that Ms Slade suffered an injury, chronic PTSD, which was caused by the 2015 motor accident, and, after the 2016 near miss, she suffered psychological symptoms amounting to 19% WPI, which were caused by or related to the chronic PTSD. It was also found in effect that she would not have had that PTSD or the need for treatment after the 2016 near miss “without the [2015 motor] accident”. It is implicit in the assessor’s reasons that the need for treatment only arose after the 2016 near miss because of her degree of impairment and that impairment would not have occurred without the 2015 motor accident.

56. [108]

    Although the medical assessor concluded that Ms Slade’s WPI after the 2016 near miss was 19%, the WPI which resulted from the 2015 motor accident was found to be 0%. This might be correct if the present case fell within the third category in Oakley. It is far from obvious, however, that this is so. For Ms Slade’s situation to fall within the third Oakley category, it would have to be the case that the damage or impairment sustained by Ms Slade as a result of the 2016 near miss included “no element of aggravation of the earlier injury [chronic PTSD]”. The assessor made no such finding. Indeed, his reasons indicate that he was of the contrary view.

57. [109]

    In the circumstances, it appears more likely that the present case would fall within the second Oakley category since the damage or impairment suffered as a result of the 2016 near miss appears to have been wholly because of “aggravation” of the PTSD, which was the injury which the assessor found Ms Slade had suffered in the 2015 motor accident.

58. [110]

    However, it is difficult, if not impossible, to express any concluded view on which of the Oakley categories the assessor determined that Ms Slade’s case fell into and whether the assessor applied the correct legal principles because the reasons in this case do not disclose his actual path of reasoning.

59. [111]

    The assessor’s reasons contain no adequate explanation of how he reached the conclusion that the degree of permanent impairment as a result of the injury caused by the 2015 motor accident was less than 10%, namely 0%. He did not explain why he, in effect, subtracted the 19% “Subsequent % permanent impairment” from the 19% “Current % permanent impairment” to arrive at the 0% “Final % permanent impairment”. To the extent that any of his relevant reasoning was disclosed, it was not in sufficient detail to enable a court to see whether his conclusion in relation to the s 58(1)(d) matter as to the degree of impairment as a result of the injury caused by the 2015 motor accident did or did not involve any error of law.

60. [112]

    The subtraction which the assessor carried out was not the only course open to him under par 1.34, as the decision in GIO General Limited v Smith [2011] NSWSC 802 at [54] makes clear. Applying the principles in Oakley, it was open to conclude that the value of the permanent impairment resulting from the 2015 motor accident was 19%. In these circumstances, it was necessary for the assessor to give some explanation of his preference for his conclusion over the conclusion that no subtraction should be made from the degree of current impairment because of the degree of impairment which arose after the 2016 near miss as a result of the chronic PTSD caused by the 2015 motor accident.

61. [113]

    Put another way, the assessor made essentially the same error as the Appeal Panel in Johnson. A necessary part of the assessor’s task was to consider, in the light of the medical evidence, into which of the three Oakley categories Ms Slade’s case fell and then to determine the extent of the relevant causal connection between the WPI at the time of the assessment and the 2015 motor accident. That analysis was not undertaken by the assessor.

62. [114]

    For all these reasons, it appears to me that the assessor failed to give adequate reasons for his decision to issue the certificate in MAS matter number 2018/02/3778. Given s 61(9) of the MAC Act and the other circumstances of the case, this failure to give adequate reasons amounts to an error of law on the face of the record.

63. [115]

    On this basis, the certificate in MAS matter number 2018/02/3778, that the injury, being Chronic Post-traumatic Stress Disorder (PTSD), caused by the 2015 motor accident gave rise to a permanent impairment which was not greater than 10%, is liable to be set aside.

64. [116]

    Further, in relation to the s 58(1)(b) matter referred to the assessor, concerning whether the treatments claimed by Ms Slade “relate[d] to the injury caused by the [2015] motor accident”, this also turned on the question of causation of her impairment and the consequent need for treatment. While the assessor found that some of the treatments were so related, he also found that:

65. [117]

    Such personal and domestic assistance appear to me potentially to fall within par (d) of the definition of “treatment” in s 42 of the MAC Act: “the provision of attendant care services”, as the assessor apparently accepted.

66. [118]

    The assessor’s reasons relevantly stated:

67. [119]

    Despite the requirements of par 1.18.1 of the 2018 Guidelines and s 61(9) of the MAC Act, the assessor did not refer in his reasons to any consideration being given to the report of the occupational therapist, Ms Stevenson, which dealt in detail with gratuitous personal and domestic assistance and how it was related to Ms Slade’s PTSD and impairment. Nor did he refer to the last paragraph of Dr Parsonage’s report which effectively endorsed Ms Stevenson’s conclusions.

68. [120]

    As the personal and domestic assistance were said by those experts to be the result of, and related to, Ms Slade’s PTSD and consequent impairment, it was at least open for the assessor to conclude that such assistance and medication were related to the injury caused by the 2015 motor accident, contrary to his expressed conclusion. In these circumstances, it was necessary for the assessor to give some explanation for his preference for his conclusion over the other conclusion that was available. However, the assessor did not even refer to the evidence of Ms Stevenson and Dr Parsonage in these regards or explain why he rejected it. Nor did he otherwise disclose the actual path of reasoning that led him to his conclusion.

69. [121]

    Further and in particular, the assessor did not explain how his assertion that the personal and domestic assistance and medication with paracetamol were not “mainstream treatments of PTSD” led to the conclusion that they were not caused by or related to PTSD, which was the injury caused by the 2015 motor accident. It does not follow merely from the fact, if it be the fact, that the relevant “treatments” were not “mainstream”, that the treatments were not “relate[d] to the injury caused by the motor accident”. [3] The conclusion was not so self-evident that no explanation was required.

70. [122]

    For all of these reasons, I do not accept that the assessor’s reasons in relation to the matter under the s 58(1)(b) which had been referred to him were sufficient in the circumstances. Thus, there is an error of law on the face of the record and his certificate concerning this matter is liable to be set aside.

71. [123]

    As to the matter under s 58(1)(a) which was referred to the assessor for assessment, this included whether that assistance and treatment were “reasonable and necessary in the circumstances”. From his reasons, relevant portions of which have been quoted above, it appears that the assessor’s conclusion in this regard was based entirely on the conclusion in relation to the s 58(1)(b) matter. The reasoning was to the effect that because the assistance and treatment were not causally related to the 2015 motor accident, therefore they were not reasonable and necessary. If the conclusion in relation to the s 58(1)(b) matter is liable to be set aside because of a failure to give adequate reasons, then the conclusion in relation to the s 58(1)(a) matter will also fall with it.

72. [124]

    Although there were unchallenged aspects of the two certificates in MAS matter number 2018/01/3773 (which included both the s 58(1)(a) and (b) matters), the findings in those certificates concerning gratuitous personal and domestic assistance and treatment with paracetamol are liable to be set aside because of a failure to give adequate reasons. The parties accepted that the certificates could not, however, be set aside only in part.

73. [125]

    Consequently, the certificate in MAS matter number 2018/01/3773, that certain treatments listed in the certificate related to the injuries caused by the 2015 motor accident and other treatments did not, and the certificate in MAS matter number 2018/01/3773, that certain treatments listed in the certificate were reasonable and necessary in the circumstances and other treatments were not, are both liable to be set aside.

74. [126]

    It was not submitted that, even if the certificates were liable to be set aside, the Court in its discretion should nonetheless refuse to grant relief. Further, I can discern no reason for refusing relief in the circumstances of this case.

75. [127]

    Accordingly, I propose to order that the three certificates should be set aside and the matter should be remitted to SIRA for the matters to be referred to a medical assessor for assessment in accordance with law.

Review of the proper officer’s decision

1. [128]

   Having concluded that the medical assessor’s three certificates should be set aside for the reasons given above, it is neither necessary nor appropriate to consider the application so far as it relates to the proper officer’s decision to refuse to refer the application for review of the medical assessment to a review panel, under s 63 of the MAC Act.

Costs

1. [129]

   The plaintiff has been successful on her application. There do not appear to me, as presently advised, to be any circumstances that would render it inappropriate for costs to follow the event, in the usual way.

2. [130]

   Thus, I propose to order that the defendant pay the plaintiff’s costs as agreed or assessed. If a party wishes to make an application for a different costs order, this may be done by notice of motion filed within 14 days of entry of the orders, under r 36.16(3A) of the UCPR.

Orders

1. [131]

   Accordingly, the orders of the Court are:

   1. (1)

      The time in which the plaintiff may commence the proceedings for judicial review is extended to 15 November 2019.

   2. (2)

      The Certificate in MAS matter number 2018/02/3778 given by the fourth defendant on 24 April 2019, as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%, is set aside.

   3. (3)

      The Certificate in MAS matter number 2018/01/3773 given by the fourth defendant on 24 April 2019, as to whether the treatment provided or to be provided to the injured person relates to the injury caused by the motor accident, is set aside.

   4. (4)

      The Certificate in MAS matter number 2018/01/3773 given by the fourth defendant on 24 April 2019, as to whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, is set aside

   5. (5)

      The matters are remitted to the second defendant to be referred for assessment under Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) according to law.

   6. (6)

      The first defendant is to pay the plaintiff’s costs as agreed or assessed.