Stocks v Insurance Australia Limited trading as NRMA Insurance

By his amended summons filed 25 January 2023, Warwick Stocks (‘the plaintiff’) seeks judicial review of the decision of a delegate of the President of the Personal Injury Commission dated 21 September 2022.

Insurance Australia Limited trading as NRMA Insurance (‘the first defendant’ or ‘the insurer’) is the compulsory third party insurer, and is the only active defendant in the proceedings. The President of the Personal Injury Commission of New South Wales (‘the second defendant’), and Rachel Britliff in her capacity as President’s Delegate appointed by the Personal Injury Commission (‘the third defendant’ or ‘the delegate’) have filed submitting appearances.

The complaint of the plaintiff is that the delegate erroneously construed and/or applied s 62 of the Motor Accidents Compensation Act 1999 (NSW) (‘the MAC Act’), when determining the plaintiff’s application for a further assessment of his permanent impairment arising out of a motor accident that occurred on 10 November 2006, and in consequence declined to refer the application.

The plaintiff was injured in a motor vehicle accident, whilst he was riding a motorbike, which occurred on 10 November 2006 in Byron Bay, NSW.

Following that accident, the plaintiff lodged a motor accident personal injury claim form dated 1 February 2007.

On or around 9 September 2009, the plaintiff lodged an application – described as an Application for Assessment of Whole Person Impairment – for permanent impairment compensation.

By certificate dated 5 March 2010, Medical Assessor Bye assessed the plaintiff for the purposes of determining assessable impairment. In that certificate, Medical Assessor Bye concluded that the applicant sustained a number of injuries – a soft tissue injury to the neck, back and right knee and a fractured radial neck of the left elbow – and that those injuries were caused by the motor accident, and gave rise to a permanent impairment of 11%.

The insurer sought a review of that assessment by a medical review panel. That medical assessment review was conducted on 7 October 2010. By certificate issued 19 October 2010, the review panel revoked the certificate dated 5 March 2010, and issued a new certificate determining that the injuries – a soft tissue injury to the neck and right knee only – caused by the motor accident gave rise to a permanent impairment of 6%.

The effect of this assessment had the consequence that the plaintiff did not have an entitlement to permanent impairment compensation: s 131 of the MAC Act.

The evidence also recorded that the plaintiff had been assessed on another occasion in 2010 – by Medical Assessor Michael Delaney. Medical Assessor Delaney assessed the plaintiff as having an 18% WPI arising from injuries caused by the motor accident – although, upon referral to a medical review panel, on 25 November 2010 the review panel determined that none of the plaintiff’s injuries were caused by the motor accident. In relation to these assessments, none of the certificates (nor the assessments themselves) were in evidence: the matters that I have referred to were contained within the delegate’s decision, and reference to them was also contained in a medical report (from Dr Bodel). The submissions of the parties did not address the materiality (other than by the plaintiff, in a confined way, in connection with a complaint made about the approach of the delegate) – or otherwise – of these assessments, nor how or why they were conducted given the assessment by Medical Assessor Bye and the determination of the review panel in connection with that assessment: see [7]-[8], above.

Again, the effect of this assessment had the consequence that the plaintiff did not have an entitlement to permanent impairment compensation: s 131 of the MAC Act.

On or around 17 March 2018, the plaintiff lodged an Application for Further Assessment of a Permanent Impairment Dispute.

The application was referred for medical assessment by Medical Assessor Truskett, who assessed the plaintiff on 29 June 2018. By certificate dated 5 July 2018, Medical Assessor Truskett assessed the plaintiff as having sustained a number of injuries – a soft tissue injury to the cervical spine, a fracture of the neck of the radius of the left arm, a soft tissue injury to the left wrist and a meniscal tear of the right knee – and that those injuries were caused by the motor accident, and gave rise to a permanent impairment of 1%. Given the plaintiff seeks a further assessment of his injury related impairments, some of the key findings and conclusions from the assessment performed by Medical Assessor Truskett will be referred to later: see [34]ff, below.

The plaintiff lodged an Application for Review of a Medical Assessment on or around 19 October 2018, but that application was ultimately dismissed on 24 October 2019 as the application was not ready to proceed.

On 18 July 2022 the plaintiff filed an Application for Further Assessment in the Personal Injury Commission (‘the Commission’) pursuant to s 62 of the MAC Act. In that application, the plaintiff applied for a further assessment of his permanent impairment expressing the grounds for that application in these terms: “Deterioration of the injury; Additional relevant information about the injury”. The plaintiff also attached written submissions in support of that application. The plaintiff also attached additional evidence in support of that application.

On 9 August 2022, the first defendant filed submissions in reply to the plaintiff’s application for a further permanent impairment assessment. It opposed the referral for further assessment, arguing that there was “neither evidence to support deterioration of the injury nor additional relevant information about the injury that is capable of having a material effect” on the assessment made by Medical Assessor Truskett.

On 21 September 2022, the delegate dismissed the further application on the basis that she “was not satisfied that there [was] additional relevant information or deterioration of the injury such as to be capable of having a material effect on the outcome of the previous assessment” and issued a certificate and reasons to that effect pursuant to s 62 of the MAC Act. It is this decision that is the subject of the plaintiff’s application to this Court.

The amended summons raised two ‘grounds’ of review. Those grounds were not well expressed. They appear to be a “cut and paste” of a number of paragraphs from the submissions that were filed. They are:

Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’) makes provision for judicial review proceedings in this Court. Rule 59.4(c) of the UCPR requires that the summons state “with specificity, the grounds on which the relief is sought”. The grounds in the amended summons did not achieve that statutory directive.

Drawing upon the submissions filed by the plaintiff, and as distilled during argument, the contention of the plaintiff was that the delegate erroneously applied s 62 of the MAC Act by impermissibly evaluating the merits – or substance – of the application, rather than merely assessing (in accordance with the statutory directive) whether “the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment”. This, the plaintiff argued, meant that the delegate did not properly form her opinion, with the consequence that the decision should be quashed: the approach of the delegate involved misapplication of s 62(1A) of the MAC Act.

The central provision to these proceedings is s 62 of the MAC Act, which is in these terms:

Referral for further assessment may occur therefore when either or both of the conditions in s 62(1)(a) are satisfied: a delegate may refer a party for further assessment if there is deterioration of injury, additional relevant information pertaining to that injury, or both; and the terms of s 62(1A) are also satisfied – namely, “the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment”.

The effect of a referral under s 62 is a further medical assessment takes place. Here, the further medical assessment that is sought by the plaintiff aims to secure an assessment of the degree of permanent impairment as a result of the injury caused by the motor accident of greater than 10%: unless that assessment is obtained, no damages may be awarded for non-economic loss: s 131 of the MAC Act.

The operation of s 62 has been discussed in a number of cases. A number of well-established organising principles have emerged. They are as follows.

First, s 62 is directed to allowing “a further medical assessment to occur where additional information has come to light or the claimant’s position has changed since the time of the original assessment”: Miles v Motor Accident Authority of NSW (2013) 84 NSWLR 632; [2013] NSWSC 927 at [37] and [45] (‘Miles’). A referral in those circumstances facilitates an ultimate determination that represents the correct and preferable decision: Mullin v CIC Allianz Australia Ltd (2015) 71 MVR 322; [2015] NSWSC 831 at [35]; Jubb v Insurance Australia Ltd (2016) 76 MVR 228; [2016] NSWCA 153 at [62] and [65] (‘Jubb’).

Secondly, s 62 involves two distinct, albeit interrelated, steps in connection with whether a matter should be referred for further medical assessment. The first, identified in s 62(1)(a), is that it must be “only on the grounds of the deterioration of the injury or additional relevant information about the injury”. The second, identified in s 62(1A), is if either is, or both are, present, then a referral for further medical assessment is precluded unless the deterioration or additional information “is such as to be capable of having a material effect on the outcome of the previous assessment”: Henderson v QBE Insurance (Australia) Ltd (2013) 66 MVR 69; [2013] NSWCA 480 at [26]-[27]; QBE Insurance (Australia) Ltd v Miller (2013) 67 MVR 322; [2013] NSWCA 442 at [4], [16] (‘Miller’). Thus, put simply, s 62 confers a power on the delegate to refer a matter for further assessment on a ground identified in s 62(1)(a) if the conditions set out in s 62(1A) are satisfied.

Thirdly, the capacity of the “deterioration of the injury” or “additional information” to affect a further medical assessment is a matter for the subjective satisfaction of the delegate, not the determination of the Court: Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [113] (‘Rodger’); Jubb at [33]; AAI Ltd t/as AAMI v Chan (2021) 95 MVR 166; [2021] NSWCA 19 at [22] (‘Chan’). Given the argument raised, it will be necessary to return to this aspect of the statutory test, later in these reasons.

Fourthly, the role of the delegate in exercising the power of referral is that of a “gatekeeper” or “a gateway function in filtering applications for further assessment”: Miller at [5] and [37]; Jubb at [33].

Fifthly, the state of satisfaction required under s 62 of the MAC Act is susceptible to judicial review and oversight by the Court in exercising its supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW): Rodger at [70]-[71]; Miles at [27]; Miller at [5]-[6].

Sixthly, the basis for review of this decision is circumscribed, reflecting the nature of the power conferred on the delegate, and is conventionally described by reference to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110, 118-119; [1976] HCA 24. The essential question is whether the delegate’s decision was properly formed according to law. More recently, and in the context of the MAC Act – specifically by reference to s 62 – the nature and standard of review was stated in Miller at [36] in these terms:

Seventhly, “the power of referral is subject to a residual discretion” as to whether to refer a matter for a further assessment: Jubb at [36].

In order to fully understand the basis of the delegate’s decision, I will: (a) set out the key findings of Medical Assessor Truskett; (b) note the key submissions advanced by the plaintiff (as emphasised during submissions in this Court) to support the application and the insurer’s position in opposing it; and (c) identify the key findings and conclusions of the delegate.

Medical Assessor Truskett assessed the following injuries: cervical spine, left arm; left wrist; left knee; right knee; lumbar spine; and anus/gastrointestinal injury.

In terms of ‘diagnosis and causation’, Medical Assessor Truskett made the following findings:

Medical Assessor Truskett considered that the following injuries were caused by the motor accident:

Medical Assessor Truskett considered that the following injuries were not caused by the motor accident:

Medical Assessor Truskett then proceeded to assess permanent impairment:

Medical Assessor Truskett concluded that the overall WPI was 6% but fully deducting the 5% pre-existing impairment of the plaintiff cervical spine resulted in a final WPI of 1%.

The delegate summarised the plaintiff’s submissions (reasons at [9](a)-(bb)). The key parts of those submissions, as emphasised in this Court, were:

The delegate did not summarise the first defendant’s submissions in her reasons. The essential position taken by the first defendant, as set out in [16], above, was that the evidence did not support deterioration of the injury or additional relevant information having a material effect on the assessment made by Medical Assessor Truskett.

In her reasons, the delegate outlined the procedural history of the plaintiff’s claim and summarised the new medical evidence provided by the plaintiff in support of his submission that his condition had deteriorated since the assessment performed by Medical Assessor Truskett (in 2018). (I note that there were a number of medical reports and records before the delegate. Much – possibly most – of the material before the delegate was not in evidence before me. Nothing turns upon this).

The delegate outlined the legal test which she was required to undertake as requiring two steps (reasons at [10]): first, “whether there is additional relevant information about, or deterioration of the injury” (reasons at [11]); and, secondly, “whether the information or deterioration is such as to be capable of having a material effect on the outcome of the previous assessment” (reasons at [12]). The conclusion of the delegate, in the dispositive part of the reasons, was similarly expressed (reasons at [56]; see [51], below). Those statements of principle are plainly correct: they adhere to the language of s 62 and are consistent with the authorities earlier referred to.

Having identified the legal test in those terms, the delegate addressed the “first limb” making two critical findings:

It should be noted that, there was no express finding about “deterioration of the injury” for the purposes of s 62(1)(a). Implicitly it was accepted to be present, given the finding in the reasons at [15]. (No submissions were directed to this issue, and the plaintiff did not rely upon it as part of its argument in this Court. In those circumstances it need not be considered further).

Having satisfied herself that s 62(1)(a) had been satisfied, the delegate then addressed the “second limb”. The question posed was: “is the information or deterioration such as to be capable of having a material effect on the outcome of the previous assessment?”: reasons at [15]. That legal direction is clearly correct, conforming as it does to the terms of s 62(1A) of the MAC Act.

It is important to emphasise that there are two distinct enquiries to be undertaken given this finding – namely: (a) whether the “deterioration of the injury … is such as to be capable of having a material effect on the outcome of the previous assessment”; and, (b) whether the “additional relevant information about the injury … is such as to be capable of having a material effect on the outcome of the previous assessment”. (The plaintiff did not suggest that the delegate failed to deal with the matter in this way – thus, it need not be considered further).

Thereafter, the delegate proceeded to assess the material being:

The focus of the plaintiff’s submissions was upon the manner in which the delegate addressed the report from Dr Bodel and the statement from Rick Newman: the plaintiff argued that this demonstrated a misapplication of the statutory test. It is appropriate, in those circumstances, to set out the reasons of the delegate in connection with Dr Bodel’s report and the statement from Mr Newman.

In relation to Dr Bodel, the delegate’s reasons were (reasons at [16]-[24]):

In relation to the statement from Rick Newman, the delegate’s reasons were (reasons at [32]-[39]):

In the delegate’s reasons, under the heading “Finding”, the delegate expressed the dispositive conclusion in the following terms (reasons at [56]-[58]):

The plaintiff submitted that the way and manner in which the delegate assessed the report from Dr Bodel dated 9 November 2021 and the statement of Rick Newman dated 23 August 2021 demonstrate that the delegate “wrongfully sought to exercise herself the power or duty of a medical assessor and she applied the wrong legal test” (plaintiff’s submissions at [22]-[24]). In short, it was said that the delegate determined the matter as if she were the medical assessor charged with the responsibility to undertake a medical assessment in accordance with s 60 of the MAC Act (plaintiff’s submissions at [47]).

In furtherance of this broad submission, the plaintiff argued that the delegate “wrongfully found that Dr Bodel’s report” was incorrectly analysed and “not capable of having a material effect on the outcome of the previous assessment” and, further, “erred in law in wrongly finding … that the statement of Mr Newman was not capable of having a material effect on the outcome of the previous assessment because of some alleged contradictions” (plaintiff’s submissions at [34]). This aspect of the plaintiff’s argument should be dealt with – and rejected – at once, for the reasons immediately following.

Given the nature of these proceedings, a complaint that a decision-maker ‘wrongfully found’ something is insufficiently precise and, more fundamentally, is not a basis for review within the authorities earlier referred to, nor is a ‘wrong finding’ of fact in and of itself and error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 156 (‘Azzopardi’); Chan at [71]. Further, simply because, as here, the plaintiff has alleged that the delegate “erred in law” does not mean, without more, that she did – particularly in circumstances where it is said that the delegate erred in law in wrongly finding that the statement of Mr Newman was not capable of having a material effect on the outcome of the previous assessment. Again, an error of that kind (assuming that is what occurred), without more, is insusceptible to judicial review.

The plaintiff next argued that the delegate “applied the wrong legal test in that she sought to over-analyse the Claimant’s further Application” (plaintiff’s submissions at [37]). This was a slightly different way of expressing the submission advanced by the plaintiff, as set out in [52], above – viz., that the delegate acted as a medical assessor. The argument of the plaintiff is, in my view, more accurately expressed as: although the delegate correctly stated the legal test, she failed to apply it. That was the way in which the case was, ultimately, pressed during submissions. (Given that the delegate correctly stated the legal test – see [42], above, it was not, in my view, open to argue that the test was misstated). A complaint framed in that way focuses upon the substance of the delegate’s reasons so as to demonstrate the suggested failure to apply the correct legal test.

The plaintiff’s overarching submission was that, consistent with the delegate’s role as being a “gatekeeper” she was neither required, nor authorised, to make a “final assessment” – which is what the plaintiff argued the delegate did here (plaintiff’s submissions at [38]). Rather, the delegate was only required, and authorised, to determine whether the deterioration or “additional information is such as to be capable of having a material effect on the outcome of the previous assessment” (plaintiff’s submissions at [39]). The plaintiff submitted that the delegate “should not have analysed or over-analysed the medical report or the statement before her or subjected them to detailed scrutiny and determination” (plaintiff’s submissions at [40]). In my respectful view, as I later explain, the plaintiff’s precise argument of where – and why – error was demonstrated was somewhat elusive.

The first defendant submitted that the correctness of the delegate’s opinion “cannot be an issue before the court on the present application” because the Court’s task is firstly to “identify whether the Delegate held the opinion required by the section that the additional information ‘is capable of having a material effect on the outcome of the previous assessment’” and, if so, “whether that opinion was properly formed” (first defendant submissions at [3.5], [3.11]). These submissions align with the summary of principles earlier set out, and are plainly right.

The first defendant further submitted that the delegate did not subject the material before her to detailed scrutiny or over-analysis, but further that even if that had occurred, that could not form the basis for the relief sought by the plaintiff (first defendant submissions at [5.2]). That is because, as the first defendant submits, while it is true that the delegate is required to act as a ‘gatekeeper’ under s 62 of the MAC Act, all that was required was for the delegate to “form an opinion or state of satisfaction about the New Material pursuant to s 62(1A)”. This occurred. And further, in the absence of a submission from the plaintiff that the delegate’s opinion or state of satisfaction was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” – which it submitted, could not be made because the delegate set out the basis for her opinion in a “methodical fashion” – the findings of the delegate are not susceptible to judicial review.

Separately, the first defendant submitted that “the grounds of review in the Amended Summons do not articulate whether the allegations are errors of law on the face of the record, or jurisdictional, or both”.

As earlier noted, the plaintiff sought review on the basis that the delegate misapplied the terms of s 62. In that situation, where there has been a misconstruction or a misunderstanding of the nature of the opinion to be formed, it can be said that there has been no real exercise of jurisdiction such that, in law, the jurisdiction remains constructively unexercised: R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 432; [1944] HCA 42; Hebburn Ltd, Ex parte; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, 420; Miller at [36].

Before moving to consider the substance of the plaintiff’s argument, three matters should also be noted. First, the parties did not draw attention to, or rely in any way upon, the Motor Accident Permanent Impairment Guidelines (or any other guidelines) as assisting in the determination of the issue argued. Secondly, each side submitted that there were no decisions, of any kind, that address the ‘intensity’ of the assessment that was to be performed by the delegate when determining the plaintiff’s application. Thirdly, here, given the way the matter was argued, the relevant issue is not whether the delegate acted unreasonably, irrationally etc (there was no challenge to the decision of the delegate on that basis: see Miller at [36]); rather, the only relevant issue is whether the delegate posited and – more specifically – applied the correct test.

The fact that the delegate correctly stated the legal test to be applied (see [42], above) does not, of course, mean that it was. It is well recognised that “formulaic recitation of a statutory test is neither sufficient nor decisive in determining whether the correct test has in fact been applied”: IAG Limited t/as NRMA Insurance v Chahoud (2019) 89 MVR 87; [2019] NSWSC 767 at [56] (‘Chahoud’). That last statement reflects a broader principle – namely, in determining whether there has been a misapplication of a statutory test, the focus is upon the substance of the reasons, reading them fairly and as a whole: Chahoud at [57], [61]-[63]. The plaintiff’s argument here was that, as a matter of substance, it was evident that there had been a misapplication of s 62 of the MAC Act, and that the delegate’s statement of the test applied was simply “formulaic”, and did not reflect the substance of what, in fact, occurred.

The question, then, is: was the correct legal test applied?

The plaintiff’s essential argument was that the reasons demonstrate that the delegate ‘over-analysed’ the application by acting as a medical assessor and thus essentially determined the application – viz., determined the merits and substance of the application – as if she were a medical assessor, rather than as a delegate required to attend to the statutory test in s 62(1A). The plaintiff’s argument was advanced, and only advanced, through the way in which the delegate dealt with the report from Dr Bodel and the statement from Mr Rick Newman. In both respects it was argued that, in identifiable respects, the manner in which the delegate treated this material demonstrated that erroneous approach.

The plaintiff argued that the delegate fell into error in that she “determined that the reports [from Dr Bodel] were insufficient in [that] the specialist ‘relied’ on an old medical assessment of Medical Assessor Delaney and that his new medical report did not contain sufficient ‘analysis’ as to causation” (plaintiff’s reply submissions at [5]). The plaintiff argued that this approach was erroneous because:

Further, it was submitted that “the finding of ‘capability’ here is key” (plaintiff’s reply submissions at [17]). (Although not entirely clear, this submission may well have been linked to the submission to the effect that the delegate had engaged in over analysis, and otherwise acted as a medical assessor: see [64], above).

I do not accept the broad tenor, nor the specific parts, of these submissions. I will deal first with the ‘capability’ submission, and thereafter the submissions directed to the specific errors said to have been made by the delegate.

Given the plaintiff’s submission, it is necessary to restate (and emphasise) some matters of general principle in connection with s 62(1A), and the test to be applied.

As earlier noted, where s 62(1)(a) is engaged (as it was in this case), then a referral for further medical assessment is precluded unless the deterioration or additional information “is such as to be capable of having a material effect on the outcome of the previous assessment”: s 62(1A); see also [26], above and the authorities there cited. By its terms, s 62(1A) calls for a comparison between the deterioration and/or additional information, and whether it is capable of changing the outcome of the previous medical assessment if it were placed before a medical assessor. That approach has been authoritatively determined in a number of cases including Rodger at [48]-[49] and [106]-[107]; Miles at [34]-[35]; Chan at [25] and [70]. The capacity of the deterioration or additional information to affect a further medical assessment “is a matter for the subjective satisfaction of the [delegate]. It is not necessary that that capacity exist as a matter of objective fact”: Rodger at [70] and [113]; Henderson at [78]; Miller at [34]-[35]; Chan at [23].

As to this last matter – viz., the satisfaction of the delegate – this has been expressed as a requirement “that the characterisation of the information is a matter to be considered in the first instance by the [delegate] and not one to be determined by this Court afresh on judicial review application” (Miller at [36]) or conditioned upon whether the delegate “has formed an opinion as to whether the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment” (Chan at [20] and [22]).

Although the plaintiff, during argument, specifically eschewed framing what the delegate should, on his argument, have done in the present case, the ‘capability’ argument of the plaintiff appeared to be that, s 62(1)(a) being satisfied, then essentially so long as there is some difference between what is contained in the further material to what was found in the previous assessment, then that was material that was ‘capable’ of having a material effect, with the consequence that the delegate was bound to refer the matter for further medical assessment (plaintiff’s reply submissions at [17]). Consistent with this, the plaintiff argued that there should not have been any “detailed scrutiny” (plaintiff’s submissions at [40]). To do otherwise, or to go further, would involve the delegate acting as a medical assessor.

I do not accept the submission. In my respectful view the submission advanced sits incompatibly with the well-established matters of principle referred to.

In my view it is clear, from the terms of the section and the authorities, that s 62(1A) operates so that where a delegate is satisfied that an application for further referral for medical assessment is not capable of having a material effect on the outcome of the previous assessment, then the application cannot succeed, and the matter cannot be referred for further medical assessment. The very terms of the statutory test require this comparison to be made by the delegate, and contrary to what the plaintiff at least implicitly argued, involves a consideration as to whether the further evidence is capable of changing the outcome.

A consideration of the decision in Chan provides practical illustration of that approach. In that case, the claimant alleged that he sustained an injury to his neck and right shoulder in a motor vehicle accident. His claim in relation to his neck was accepted, but not for the injury to his right shoulder. The decision of a medical assessor was confirmed upon review by a medical review panel under s 63. The claimant secured further medical evidence to support his argument that the injury to his right shoulder was caused by the motor vehicle accident. He applied for a further medical assessment under s 62. The delegate refused to refer the matter because, although finding that the further medical reports were additional relevant information, she was not satisfied that it was capable of having a material effect on the outcome of the previous assessment (at [36]). The delegate then provided reasons explaining why she reached that conclusion – reasons that provided a detailed examination of the reasons of the medical assessor and the review panel as well as the further medical evidence that the claimant adduced to support the referral for a further assessment, notably directed to the ‘causation’ question (at [37]-[38]). The Court considered these reasons, and the approach more generally – a consideration that included the following (at [72] and [75]):

In my view the approach advocated by the plaintiff – set out in [66] and [71], above – also stands inconsistently with the approach taken in Chan: on the approach argued by the plaintiff, the delegate in that case would have engaged in “over-analysis”, and fallen into legal error. Yet the Court of Appeal did not accept this; indeed, it supported as permissible the approach of the delegate.

The plaintiff’s submission, by the emphasis upon the word ‘capable’, seeks to elevate and give primacy to that word, as it appears in s 62(1A), rather than construe the phrase as a composite one that – importantly – includes the qualifying term “material effect”. Further, to the extent that the plaintiff sought to suggest that, because Leeming JA in Chan at [24] suggested that the threshold in s 62(1A) was not a “high bar”, the application should therefore have been referred for further medical assessment, I do not accept the submission. The determination of whether the matter should be referred is for the satisfaction of the delegate: in the present case, the task of the Court is not concerned with whether that opinion was right or wrong, only whether the opinion of the delegate was correctly formed according to law: Chan at [28]. I am satisfied that it was and, further, it is not reasonably open to suggest that what the delegate did was evidence of a formulaic application of the test: the delegate, in my view, correctly posed the statutory test, and applied it.

The plaintiff also argued, again at a more general level, that the ‘satisfaction’ required “is the delegate acting as a gatekeeper and not as a medical assessor” (plaintiff’s reply submissions at [14] and [16]). To the extent that this argument was that the test in s 62(1A) needs to reflect the fact that the delegate was a “gatekeeper” and not a medical assessor, then I do not accept this implied limitation. Nor do I accept that it is appropriate to reformulate the statutory test: the delegate’s task was simply to apply the statutory language: Chahoud at [65]-[66].

It is important to emphasise a further matter. The argument in this Court had as its focus the issue of causation in connection with the cervical spine and lumbar spine – and this issue was obviously prominent before the delegate. The self-evident explanation for that approach was that Medical Assessor Truskett concluded that there was an absence of causation in connection with any impairments in those body parts and the motor vehicle accident. Given the nature of the issue presented, it is therefore entirely understandable why the delegate was required to address causation of these impairments. To do so was not, as the plaintiff argued, evidence of the delegate engaging in a “final assessment”, but merely a step in the comparative exercise that the delegate was called upon to address under s 62(1A). That approach is entirely consistent with the approach in Chan, and the language of the section.

The plaintiff additionally raised three complaints about the way that the delegate dealt with Dr Bodel’s report: see [65], above. Each of these complaints are directed to questions of fact or findings of fact that are alleged to be erroneous; they did not involve errors of law. Furthermore, it should be emphasised, the plaintiff argued the matter on the basis of these matters illustrating a misapplication of the statutory test, and not demonstrative of any reviewable error. In my view they fall demonstrably short of doing so.

To the above I would, briefly, add the following:

The plaintiff also argued that there was a further error – namely, that the delegate “wholly failed to assess Dr Bodel’s reports by reference to the original assessment”, going so far to submit that the delegate “did not mention Medical Assessor Truskett at all, let alone why the new reports were not capable of affecting that assessment” (plaintiff’s reply submissions at [22]-[26]).

This alleged error is not within the widely expressed grounds contained within the amended summons (or the submissions filed in support), nor was it identified as part of the plaintiff’s case following clarification of the ground at the commencement of the hearing. The argument was not developed during the hearing, and the first defendant did not address it at all. In fairness, however, it should be pointed out that this argument was first raised in the plaintiff’s reply submissions filed the afternoon before the hearing and the fact that the first defendant did not address it understandably may have followed from the way that the plaintiff confined his case at the commencement of the hearing.

In any event, I do not accept the argument. In my respectful view it is clearly wrong: the delegate expressly referred to Medical Assessor Truskett in her reasons at [4]:

Separately, whether the delegate referred to “Medical Assessor Truskett” is of no moment; what is important is the reference to the substance of what the medical assessor (relevantly) concluded: it is upon those conclusions that any comparison would be made. As I have earlier noted, the central argument, below and in this Court, related to causation, particularly in connection with the cervical and lumbar spines. This is precisely the task undertaken by the delegate: see her reasons at [4], as set out in [83], above. Thus, in relation to Dr Bodel, the delegate expressly considered whether the impairment assessed by Dr Bodel was attributable to the motor accident: that she did so is evident from her reasons at [16] where she noted that Dr Bodel assessed the plaintiff as having a “20% WPI which was attributable to the motor accident” and thereafter undertook a consideration of Dr Bodel’s report in connection with causation: reasons at [17]-[24].

In connection with Mr Newman’s statement, the plaintiff argued that there was “no discussion or reasoning” – merely a “conclusion” – in relation to the delegate’s finding that there was a contradiction between the ‘contemporaneous’ medical records from the plaintiff’s general practitioner about an incident in September 2006, and Mr Newman’s statement (plaintiff’s reply submissions at [31]-[33]). The plaintiff also argued that the delegate made an error in connection with the “glass door incident”, failing to “mention that this glass door incident was described” in the clinical notes as ‘minor’ (plaintiff’s reply submissions at [34]-[35]).

I do not accept these submissions. Aside from the overarching submission that the delegate, by dealing with the matter in this way, “was acting as a medical assessor” (plaintiff’s reply submissions at [37]) and failed to assess “capability” (plaintiff’s reply submissions at [38]) – both of which were said to evidence an “erroneous approach” (plaintiff’s reply submissions at [39]), no error of law is identified (or suggested). In this respect it should (again) be emphasised that no part of the plaintiff’s application for review of the delegate’s decision involved any question about the reasonableness of the decision or argument that the decision was irrational, illogical etc (Miller at [36]); nor was any issue raised about the adequacy of the delegate’s reasons.

In relation to the suggested erroneous approach, for the reasons that I have earlier given when dealing with the argument about Dr Bodel’s report, I do not consider that what the delegate did was demonstrative of a misapplication of s 62(1A). Rather, consistent with the statutory directives contained within the reasons (see [42] and [51], above; and the further statement in connection with Mr Newman’s statement: reasons at [39]), the delegate correctly approached the determination of the plaintiff’s application. In the context of the application, s 62(1A) required the delegate to consider whether the statement addressing matters 15 years earlier was capable of having a material effect on the outcome of the previous assessment. The delegate was not satisfied that it was for a range of reasons, including because there were contemporaneous medical records from Dr Webber (the plaintiff’s treating medical practitioner between 2002 and 2006) supportive of the conclusion that the medical assessor reached – which was to the effect that the plaintiff had “long standing moderately severe back pain”, and was being prescribed regular narcotic analgesic medication for this condition. The conclusion was unexceptional, and in any event was fundamentally a question of fact for the delegate, not this Court. Further, the plaintiff’s submission that the delegate erred in relation to her treatment of the “glass door incident” – failing to mention that it was “minor” – also does not give rise to any error of law, nor is it demonstrative of an error in approach.

For the above reasons, I make the following orders: