Ali v AAI Limited

1. [1]

   BASTEN JA: On 13 November 2006 the appellant, Abbas Ibrahim Ali, was injured in a motor vehicle accident. He made a claim against the third party insurer for damages with respect to injuries incurred in the accident. In order to obtain an award of damages for non-economic loss he needed to demonstrate that he had suffered a degree of permanent impairment greater than 10%. [1] There being a dispute as to that fact, an assessment of permanent impairment was undertaken by a medical assessor. [2] Several medical assessments were undertaken, but relevantly for present purposes, Dr Ian Cameron undertook a “further assessment” on 16 July 2013 dealing with a traumatic brain injury, soft tissue injury to the lumbar spine and a fracture of the right clavicle. He assessed a degree of permanent impairment as 7%. This figure did not itself exceed the 10% floor, but in combination with other physical impairments, it was part of a final calculation of 11% permanent impairment.

2. [2]

   On 9 September 2013, AAI Ltd (“the insurer”), lodged an application for a review of Dr Cameron’s assessment, pursuant to s 63 of the MAC Act, on the ground that the assessment was “incorrect in a material respect.” [3] That application was refused by the proper officer, Medical Assessment Service, in a reasoned decision dated 5 December 2013.

3. [3]

   On 28 January 2014 the insurer sought review, pursuant to s 69 of the Supreme Court Act 1970 (NSW), of (a) the assessment by Dr Cameron (“the assessor”) and (b) the refusal of its application for review by the proper officer. For reasons which are obscure, that application was not heard until 13 February 2015 in the Common Law Division. On 4 August 2015 Wilson J made orders setting aside both decisions. [4]

4. [4]

   The submissions for the insurer (despite express denials), invited a blatant exercise in merit review, beyond the scope of the jurisdiction of the Court in exercise of its supervisory jurisdiction. Despite the claimant’s opposition to such a course, the primary judge accepted the insurer’s submissions and set aside the decisions under review.

5. [5]

   In this Court, the insurer sought to justify the judgment and, in respect of those issues not reached by the primary judge, reiterated by way of a notice of contention, the additional grounds presented in the Court below. It sought to have this Court engage in a general appellate review of the fact finding by the assessor; it also sought to import into the assessment process aspects of the judicial function. Neither approach should be accepted. The judgment and orders made below must be set aside; the insurer must pay the costs of the proceedings.

6. [6]

   The primary judge identified as central issues erroneously addressed by the assessor, (a) evidence of pre-accident impairments resulting from the claimant’s experiences as a young man in Iraq and (b) doubt cast upon his claimed current disabilities, as revealed in surveillance film. It is convenient to commence by outlining the approach taken by the assessor.

Reasoning of assessor

1. [7]

   The assessor dealt with the issues raised for consideration in an orderly fashion. He commenced by identifying the issue in dispute which was whether the degree of permanent impairment of the claimant as a result of injury caused by the motor accident was greater than 10%. (His certificate recorded three areas of physical injury and stated that they did not give rise to a permanent impairment greater than 10%.)

2. [8]

   Section 2 of the reasons, headed “Introduction”, noted the material available in the Medical Assessment Service files and additional information provided by the Service, which included further reports and surveillance films. By the time Dr Cameron came to carry out the further assessment on 16 July 2013, there had already been two previous assessments (in November 2008 and May 2011). Much material had been accumulated. By way of example, when the insurer sought a report from Dr Sydney Smith in January 2010, Dr Smith noted, among other classes of documents, no fewer than 27 extant reports. The volume of material before the assessor was in the order of 2,000 pages.

3. [9]

   The assessor stated that he had “seen and considered” all of that material and noted that both the claimant and the insurer had been provided with copies of the documentation and the surveillance film. He said that Mr Ali, accompanied by his wife and an interpreter, attended the assessment.

4. [10]

   Section 3 of the reasons set out the history given by the claimant. Section 4 outlined the assessor’s findings on his clinical examination. He noted that he had administered a “Mini-Mental Status Examination” on which the claimant achieved a “severely abnormal score”, which the assessor dismissed as not a valid score.

5. [11]

   Section 5 contained a review of the documentation. Having referred to the initial clinical records, including an ambulance report which confirmed the head injury and recorded an initial Glasgow Coma Score of 10/15, the assessor referred to the hospital admission records indicating a “right sided basal skull fracture extending through the temporal bone with a suspicion of a similar fracture on the left side … a cranial vault fracture involving the right temporoparietal bones and an extradural haematoma of 2cm in depth causing minimal midline shift.” [5]

6. [12]

   The assessor stated in respect of the surveillance material: [6]

7. [13]

   The assessor noted both the submissions and the further submissions from the insurer. He also referred to “multiple psychiatric reports of Dr Parmegiani [7] and specifically identified two reports by Dr Smith, the later one being in July 2013. The assessor stated: [8]

8. [14]

   In dealing with an early report of March 2007 by the treating rehabilitation physician Dr Veerabangsa, the assessor noted the opinion that the claimant’s “previous traumatic experiences in Iraq may have contributed to his post-trauma emotional state.” [9]

9. [15]

   The assessor noted that Dr Smith’s later report disagreed with an assessment made on behalf of the claimant by Dr Teychenne. On 27 May 2011, Dr Teychenne, reported that the claimant had suffered “a significant traumatic brain injury.” [10] By contrast Dr Spira thought that by June 2013, there was “no significant residual impairment related to traumatic brain injury”. [11]

10. [16]

    In section 6, headed “Conclusions”, he set out a finding that the claimant had sustained the various injuries under assessment in the motor vehicle accident. Having concluded that the claimant “sustained an extremely severe traumatic brain injury” in the accident, he continued: [12]

11. [17]

    He referred to the Guidelines for Assessment of Permanent Impairment published by the Motor Accidents Authority and dated 1 October 2007 (“the Guidelines”) and concluded that, six years and eight months after the accident, the claimant’s injuries were “stable”. [13]

12. [18]

    The critical findings were set out in section 7, headed “Determinations”. That section commenced with reference to the American Medical Association Guides and the (local) Guidelines, pursuant to which permanent impairment was to be assessed, in accordance with s 106 of the MAC Act. In determining the degree of permanent impairment, the reasons stated in part: [14]

13. [19]

    To understand this and subsequent findings made by the assessor, it is necessary to have regard to Chapter 5 of the Guidelines, Nervous System Impairment. However, first it is important to note a general feature of the Guidelines, namely that impairment resulting from a physical injury is to be assessed separately from impairment resulting from psychiatric or psychological injury. [15] The Guidelines further provide that when determining the degree of permanent impairment resulting from an accident, the rating for a physical injury cannot be combined with the rating for a psychiatric or psychological injury. [16] Those propositions follow from the terms of s 61(10) of the MAC Act, recognising that there may be separate assessments of different physical injuries, which are to be put together in a “combined certificate” to give the total degree of permanent impairment, but which cannot be combined with impairment resulting from a psychiatric or psychological injury. In the present case, the claimant obtained an assessment of greater than 10% (namely 11%) as a result of a combined certificate, demonstrating (although the combined certificate was not before this Court, and was not sought to be set aside) that the injuries being assessed by Dr Cameron were not psychiatric or psychological injuries.

14. [20]

    Turning to Chapter 5 of the Guidelines, and relevant to the conclusion reached above, the following passages appear under the heading “The central nervous system – cerebrum or forebrain”.

15. [21]

    There is no challenge to the finding that the criteria in par 5.9 were satisfied. Following that conclusion, the assessor continued: [17]

16. [22]

    The assessor then referred to the approach required in the Guidelines for assessment of mental status impairment by reference to the “modified clinical dementia rating scale.” As required by par 5.11, the assessor undertook the exercise required by Table 5.1. The table has six categories, being (i) Memory, (ii) Orientation, (iii) Judgement and Problem Solving, (iv) Community Affairs, (v) Home and Hobbies and (vi) Personal Care. To understanding the ratings given by the assessor, it is convenient to set out that part of the table dealing with the first factor identified, namely memory.

17. [23]

    For each category (bar the last), the assessor gave a score of 0.5, meaning that the relevant impairment was “questionable”. With respect to personal care, the scoring was zero, indicating “none”. The assessor continued: [18]

18. [24]

    The application of that calculation is set out in par 5.12 of the Guidelines which, to the extent relevant, reads as follows:

19. [25]

    Accordingly, Mr Ali’s clinical dementia rating was 0.5. Table 5.2 provided “criteria for rating impairment related to mental status”. There are four classes. It is only necessary to refer to class 1, which is as follows:

20. [26]

    The assessor then considered “emotional and behavioural functioning”, and assessed his current status as one of “mild limitation of daily social and interpersonal functioning”, on a basis which it is not necessary to set out. He evaluated the impairment due to the brain injury as 7% whole person impairment. His adoption of this figure which was in the middle of the range, was explained in the following terms: [20]

21. [27]

    Again using the Guidelines, the assessor concluded that the claimant’s whole person impairment due to brain injury was 7%.

22. [28]

    The assessor was required to address not only the consequences of the traumatic brain injury, but also the physical effects of a soft tissue injury to the lumbosacral spine and the fracture of the right collarbone. Because he dismissed the latter two injuries as involving no current degree of permanent impairment, findings in that regard may be ignored.

Procedural steps

1. [29]

   Before addressing the reasons of the primary judge, it is desirable to note why the proceedings may have been presented in a manner not conducive to their expeditious and correct resolution.

(a) grounds of review

1. [30]

   The difficulties in the Court below began with the grounds articulated in the summons commencing the proceedings. First, the relief claimed was directed to the “decision” of the assessor, Dr Cameron. Assuming that what was intended was an order setting aside his assessment certificate, the certificate which in fact produced the relevant legal consequence (entitling the claimant to an award of damages for non-economic loss) was the combined certificate. No order was sought seeking to set that aside, which could have given rise to confusion in the event that the certificate issued by Dr Cameron was set aside.

2. [31]

   Secondly, under the MAC Act, s 63, the insurer, as a party to a medical dispute, could apply to the proper officer of the authority to refer the challenged assessment to a review panel. [21] That course was taken, but the proper officer rejected the application, not being satisfied that there was “reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.” [22]

3. [32]

   The primary basis upon which the decision of the proper officer was challenged was that it was based on an invalid medical assessment. Although that ground may have been good for the combined certificate (based on legal invalidity) it is less clear that the same logic would apply to the decision of the proper officer, which required her to be satisfied that the assessment was “incorrect in a material respect” (primarily a factual question).

4. [33]

   Thirdly, the grounds were imprecise as to what constituted jurisdictional error and what constituted error of law on the face of the record. As will be seen, failure to identify with specificity the grounds relied upon [23] was apt to cause difficulties in determining what evidence should be admitted in proceedings, which were in the original jurisdiction of the Court.

5. [34]

   Fourthly, the grounds misstated the issues to which the assessment was directed, with the result that the alleged failure to deal with the issues, said to render the decision (and presumably the certificate) invalid, proceeded on a false premise. The issues were to be identified in accordance with the requirements of s 57 and s 61(1) of the MAC Act. Section 61(1) is in the following terms:

6. [35]

   The term “medical dispute” is defined to mean “a disagreement or issue to which this Part applies.” [24] Relevantly for present purposes, s 58 states:

7. [36]

   Contrary to the statutory identification of medical assessment matters, to which the Part applies, and which are to be the subject of a certificate under s 61(1), the summons identified the issues as “including” (but presumably not limited to), “(i) the claimant’s credit; (ii) the claimant’s wife’s credit; (iii) surveillance films; (iv) the absence of independent verifying evidence to support the claimant’s claim; (v) the correct and lawful approach to the Clinical Dementia Rating tables, causation; and (vi) determination of the extent of the claimant’s pre-accident mental or physical condition and what deduction or apportionment should be made for this pre-accident condition.” The summons thus broadened the subject matter of the assessment in a manner which was not consistent with the statutory scheme and which had potential consequences in identifying errors of law.

8. [37]

   The particulars also proved to be misleading. Thus, the alleged failure to deal with the claimant’s credit was palpably wrong, in so far as the reliability of his account of his condition was concerned. It was simply untrue that the assessor had failed to address that issue; by the time the matter came before the Court, the insurer’s position was that the assessor had in fact found that the claimant’s evidence was so unreliable that it made an error of law in placing any weight upon it at all. This aspect of the matter was significant, because it became an important element in the judgment of the primary judge and in relation to the matters relied upon on appeal by way of a notice of contention.

9. [38]

   The sixth particular was misleading because it implied that the claimant’s pre-accident “mental or physical condition” should have been taken into account in reduction of the degree of impairment caused by the accident. In fact, the evidence relied upon involved a psychiatric or psychological condition, which was required by the MAC Act and the Guidelines to be dealt with separately, as the insurer should have known.

(b) evidence admitted before primary judge

1. [39]

   Both parties filed submissions prior to the hearing before the primary judge. According to those written submissions, the insurer sought to read an affidavit of its solicitor which exhibited all the 2,000 pages of material before the assessor. [25] In his written submissions, the claimant asserted that the affidavits and exhibits were inadmissible. [26] Reference was made to Allianz Australia Insurance Ltd v Kerr. [27]

2. [40]

   When the matter came on for hearing, senior counsel for the insurer beguilingly noted that the four volume affidavit had been pared back to one volume (apparently being the 525 pages of material relied upon in this Court). Counsel for the claimant did not maintain a clear objection, merely noting that in her submission the judge “need not go to it” and promising to deal with it in oral submissions, but not objecting to the insurer relying on it for the purpose of advancing its argument. [28]

3. [41]

   In the course of submissions in this Court, counsel for the insurer accepted that in identifying error of law on the face of the record, he was confined to the document identifying the nature of the medical dispute and the reasons of the assessor. For the purpose of establishing jurisdictional error, he was entitled to rely upon other material. By way of example, had the insurer sought to rely upon a radiologist’s report denying that the claimant had suffered fractures to his skull in the accident, being a report which had been relied upon before the assessor and referred to in submissions filed with the assessor, but not referred to by the assessor in his reasons, then it would have been open to the insurer to tender the report and so much of the submissions as demonstrated how it was relied upon. That course would have been legitimate on the basis that there was either procedural unfairness or a constructive failure to exercise the assessor’s statutory function if such material had been entirely disregarded. Both procedural unfairness and a failure to exercise a statutory function may constitute jurisdictional error.

4. [42]

   Had the specific grounds been identified in the pleading and the relevant particulars set out, together with a characterisation as jurisdictional error, it would have been possible to rule on the admissibility of the material, much of which would probably have been rejected as irrelevant. In the result the primary judge was left with an unmanageable volume of largely irrelevant material.

Reasoning of primary judge

1. [43]

   The primary judge posed the question for determination in the following passages:

2. [44]

   Although using language which was apt to expand the legitimate grounds of judicial review, the second passage appeared to identify two issues, namely whether there had been a failure in some particular respect to consider relevant material or exercise the statutory function of assessment, and, separately, whether the statutory obligation to provide reasons had been satisfied.

3. [45]

   The first passage identified two factual issues, namely, the claimant’s pre-accident impairment and the doubt cast upon the level of his claimed current disabilities. The former appeared to rely on the factual analysis set out in the following terms: [29]

4. [46]

   The latter issue (credibility) was summarised in the following terms:

5. [47]

   The issue of credibility arose from what the judge described in a number of passages as evidence of “malingering”. (This language did not come from the assessor: rather it came from Dr Spira, who, while agreeing that the claimant had sustained “a significant head injury” in the accident, concluded that, because of the “frank malingering”, it was “all but impossible to determine whether there is any organic cognitive disorder” due to the accident.) The analysis continued in terms which appeared to identify both a failure to take material into account and inadequate reasons:

6. [48]

   The second error identified by the primary judge was that the assessor “failed to address and resolve the dispute between the parties as to the pre and post-crash impairment”. [30] The reasoning of the trial judge in this respect asserted that “there was evidence which clearly raised that issue as one for determination”, but that it was not dealt with by the assessor. [31] More precisely, the judge stated:

(a) inadequacy of reasons

1. [49]

   There was some confusion in the reasoning as to this supposed error. Either the assessor, having noted evidence of pre-crash impairment, nevertheless failed to consider it; or he failed to expose his reasons for the assessment. Generally, both errors are not committed in relation to the same material. As explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak, [32] considering the obligation to give reasons imposed on a medical panel under s 68 of the Accident Compensation Act 1985 (Vic):

2. [50]

   Self-evidently, a statement of “the actual process of reasoning” cannot be inadequate because it fails to set out a step which was not actually taken. The putative error must then have been failure to consider relevant evidence.

3. [51]

   It is not necessary to address further the scope of the reasons required; however, any finding of breach should properly address that issue by reference to the terms of the statutory obligation under s 94(5) of the MAC Act, requiring that the assessor “attach a brief statement to the certificate setting out the assessor’s reasons for the assessment”. It would also have been appropriate to note the principles set out by the High Court in Wingfoot v Kocak. As will be explained below the assertions of inadequate reasoning were based on a misapprehension as to the nature of the assessor’s function.

(b) failure to address relevant considerations

1. [52]

   Although it will be necessary to address the concept of irrelevant considerations in relation to the insurer’s contentions, it is not necessary to address its correlative concept, relevant considerations. It is sufficient to note that the approach of the primary judge cannot be accepted for two reasons. First, the references made to passages in the reasons of the assessor were materially incomplete; secondly, the inferences drawn did not follow from the premises.

2. [53]

   With respect to “malingering”, perhaps better described as exaggeration of disabilities, [33] the critical evidence relied on by the insurer to cast doubt on the claimant’s account was the surveillance material. Contrary to the statement of the primary judge, there were in fact, not two, but three passages in the reasons which dealt with the surveillance films. Further, the judgment set out portions only of the second in the following passage: [34]

3. [54]

   The omitted passage in the second extract (which is set out in full at [12] above) is by no means insignificant: it described the activities recorded on the films. Even more tellingly, a third passage (set out at [23] above) contradicts the conclusion reached by the primary judge: it demonstrates the assessor taking that material into account in relation to precisely those elements in the table to which it was most closely relevant, namely “community affairs and leisure and recreational interests”.

4. [55]

   The submission by the insurer that the assessor’s reasons did “no more than refer to the existence” of the surveillance evidence, without dealing with its significance, is untenable. The conclusions of the assessor based on that material were expressly stated in both the significant passages. If any more could have been said (which is doubtful) there was no legal error in failing to take the analysis further; the brief reasons addressing the precise point satisfied the statutory requirement. [35] The assessor’s conclusion based on the available material was a “questionable” disability; the surveillance evidence, together with conclusions derived from the clinical examination, formed part of that which led to an assessment in the middle of the prescribed range.

5. [56]

   The second area said to demonstrate a failure to take account of significant material involved the pre-existing impairment. The fatal flaw in that reasoning lay in the failure to identify with precision the nature of the medical dispute and hence the issue to be determined. Had that been done, it would have been understood that the evidence relied upon by the insurer, and to which reference was in fact made by the assessor, was not ultimately significant. Somewhat ironically, that was explained in the reasons given by the proper officer, who had been faced with a similar complaint. She said: [36]

6. [57]

   In the course of submissions in this Court, counsel for the insurer relied upon an affidavit of Dr Attia-Soliman, dated 23 July 2006 (some four months before the motor vehicle accident) noting that she had diagnosed the claimant as suffering from “marital problems as well as chronic depression and post-traumatic stress disorder.”

7. [58]

   The requirement to separate psychiatric injury and physical impairment is clearly stated in s 61(10) of the MAC Act (referred to at [19] above). Consistently with the legislative scheme, the Guidelines deal separately with psychiatric and psychological impairment. Dr Cameron was assessing an impairment which satisfied cl 5.9 of the Guidelines. Accordingly, the explanation given by the proper officer, set out above, was a full and correct answer to the insurer’s complaint. The conclusion of the trial judge that any form of error was identified in the failure to determine the extent of any pre-existing psychiatric condition, let alone one which invalidated the assessment, must be rejected.

Notice of contention – irrelevant considerations

1. [59]

   The thrust of the challenges raised in the notice of contention, which was limited to the assessment certificate issued by Dr Cameron, turned on par 7(d) which read:

(a) factual flaws

1. [60]

   The summary of the findings of the assessor is correct; what was said to flow from those findings is both factually and legally flawed. The factual flaw operates at two different levels. First, it was simply wrong to treat an assessment of the claimant’s account as “unreliable” to mean that it is worthless in all respects. Thus, to take an hypothetical example, to reject as unreliable a person’s statement that he is virtually blind, is not to deny that he may have some level of impaired vision. Secondly, at no point did the assessor treat the claimant’s account of his own disabilities as reliable; in all the prescribed areas (except personal care, which was entirely rejected) the extent of the disabilities was said to be “questionable”. Thus, under the heading “Judgment and problem solving” the assessor recorded a finding indicating that the impairment was “questionable” and stated, “there appear to be difficulties”. That finding was consistent with his earlier assessment of the clinical investigation the assessor had conducted.

2. [61]

   In describing his clinical examination, Dr Cameron stated: [37]

3. [62]

   The statement that the claimant “appeared to have substantial difficulties” in completing the tasks is entirely consistent with the final conclusion that “there appear to be difficulties”, but that their extent is “questionable”. In other words, the finding was not based upon what the claimant had said, but what the assessor had observed. Accordingly, the contention is factually misconceived.

(b) legal flaws

1. [63]

   The legal flaws involve an equally serious misconception. Even supposing that the assessor had, contrary to the explanation just given, relied upon the claimant’s self-reporting, self-reporting adjudged to be unreliable does not thereby become “irrelevant information”, which, if taken into account in the assessment process, will invalidate the process.

2. [64]

   The administrative law concept underlying this submission is conceived, at least in Australian law, as an expression of statutory construction. The language of “irrelevant consideration” is used to refer to factors which are extraneous to the proper exercise of the power, so that to take them into account will constitute legal error. [38] A clear example of an express prohibition may be found in equal opportunity legislation which makes it unlawful to take race into account in public decision-making. [39]

3. [65]

   Although the conventional statements of the principle refer to relevant and irrelevant “considerations”, [40] other language is sometimes used. [41] Further, there is a second principle that extends beyond “considerations”. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, [42] the Minister considering making a grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), was required to take into account detriment to an existing landholder, identified by the Aboriginal Land Commissioner. The issue was whether the requirement extended to further information supplied directly to the Minister. As explained by Mason J: [43]

4. [66]

   It is in such a context that reference is made to ignoring “relevant material”. [44] A statutory obligation to address the substance of an applicant’s case will readily be implied, as will an obligation to consider material relied on by an applicant which is, on its face, relevant and significant, and is credible or uncontested. [45] Failure to do so may involve a constructive failure to exercise the function conferred by the statute.

5. [67]

   In Minister for Immigration and Multicultural Affairs v Yusuf, the joint reasons of McHugh, Gummow and Hayne JJ addressed a submission that a statutory provision requiring the Refugee Review Tribunal to give reasons for its decision and set out findings on any material question of fact, imposed an obligation to make findings on material questions of fact. The joint reasons stated: [46]

6. [68]

   This was using the language of the first principle identified above; but the joint reasons continued: [47]

7. [69]

   These related principles are widely accepted and dealt with in Australian texts. [48] On the other hand, where a statute confers an exclusive power to determine facts and exercise discretion, there is limited room for implied limitations on how the repository of the power can exercise that power. Relevantly for present purposes, there was no basis for suggesting that the assessor did not have the power to identify particular material as unreliable, but give it some limited weight. Nor was any attempt made to find such an implied limitation in the statute, a necessary exercise but one which would readily have revealed its own futility.

Conclusions

1. [70]

   For these reasons the appeal must be upheld and the challenge to the assessor’s certificate set aside. No separate basis was relied on by the insurer to maintain the order setting aside the decision of the proper officer declining to refer the matter to a review panel.

2. [71]

   The extension of time within which to commence the proceedings should stand, but the summons must be dismissed.

3. [72]

   The primary judge reserved the costs of the proceedings before her, although costs had been sought in the summons. Given the result, the insurer should pay the claimant’s costs in this Court and in the Division.

4. [73]

   The Court should make the following orders:

   1. (1)

      Allow the appeal and set aside orders 2-5 made in the Common Law Division on 4 August 2015.

   2. (2)

      In place thereof dismiss the summons filed on 28 January 2014.

   3. (3)

      Order that the plaintiff pay the costs of the first defendant (Abbas Ibrahim Ali) in the Common Law Division.

   4. (4)

      Order that the first respondent (AAI Ltd) pay the appellant’s costs in this Court.

5. [74]

   LEEMING JA: I agree with the orders proposed by Basten JA, and with his Honour’s reasons. I wish to add the following concerning the status of and reliance upon guidelines, which was prominent in the insurer’s written and oral submissions on appeal. I do not regard any of what follows to be inconsistent with Basten JA’s judgment.

6. [75]

   It was submitted before the primary judge on behalf of the insurer that the Medical Assessment Guidelines were “delegated legislation” and that the Permanent Impairment Guidelines were “also delegated legislation under the scheme” (written submissions paragraphs 34 and 41). That submission was accepted by the primary judge and was repeated in writing and orally when the appeal was heard.

7. [76]

   At no stage was it explained in terms what was meant by “delegated legislation”. But the reason for the submission is plain enough. It was to support the proposition that a non-compliance by the assessor with the Guidelines amounted, in various ways, to judicially reviewable error.

8. [77]

   Thus it was said at first instance that a “failure to properly apply” the Guidelines led to a breach of statutory duty. It was submitted at first instance that:

9. [78]

   On appeal, where the focus of ground 1 had become the failure to consider “all relevant evidence”, in particular the evidence relating to the claimant’s unreliability and his pre-existing impairment, the insurer’s submissions sought to invoke the Guidelines to establish a failure to have regard to relevant considerations. Notwithstanding their length, it is fairer to reproduce material passages from them, rather than to attempt to summarise them.

10. [79]

    It was submitted that:

11. [80]

    The first of the pieces of “delegated legislation” was the Medical Assessment Guidelines, and the insurer pointed to the obligation in cl 9.11.5 in those Guidelines to provide all documents in support of the application to the assessor, and the general powers governing the assessor’s role in cll 11.1 – 11.5. More elaborate submissions were made concerning the Permanent Impairment Guidelines:

12. [81]

    These submissions are not, in my view, sound.

13. [82]

    Subsections 44(1), (4) and (7) of the Act are as follows:

14. [83]

    Thus, the Authority is empowered to issue guidelines, which are to be published in the Gazette and which are treated as being disallowable instruments for the purposes of ss 40 and 41 of the Interpretation Act 1987 (NSW): see subss 44(1), (4) and (7). Subsection (7) makes it plain (by providing that ss 40 and 41 apply as if the guidelines were statutory rules) that the guidelines are not statutory rules. (It is unnecessary in this appeal to say anything of the claims assessment guidelines which are dealt with by subss 69(1), (5) and (6).)

15. [84]

    Section 45 contains special provisions relating to the power to make guidelines relating to the assessment of permanent impairment. Such guidelines are subject to limitations which need not for present purposes be summarised. Such guidelines are also treated as disallowable instruments: s 45(4).

16. [85]

    None of those provisions converts a guideline into delegated legislation which binds the parties or an assessor of its own force. Certainly, the requirement of gazettal does not do so. Many, many instruments are required to be published in the Gazette. Nor does the extension of the provisions relating to disallowance to guidelines do so. Many instruments under many statutes are treated as disallowable instruments (examples include a recall order under s 46 of the Stock Medicines Act 1989 (NSW), a scheme under the Professional Standards Act 1994 (NSW), a determination under Part 3 of the Statutory and Other Officers Remuneration Act 1975 (NSW) and a proclamation or order under ss 8 or 37 of the Poisons and Therapeutic Goods Act 1966 (NSW) – see ss 47, 13, 19A and 46 respectively of those statutes). In such cases, the legal consequence of the instrument is determined by other primary legislation. The instrument does not of itself impose a statutory obligation. The central concept of “delegated legislation” is a delegation of legislative power by Parliament: see O Jones, Bennion on Statutory Interpretation (6th ed 2013, LexisNexis) at 219.

17. [86]

    There appear to be two provisions of the Act of present relevance. Section 65(1) now states the legal consequences of the Medical Guidelines:

18. [87]

    As presently advised, I incline to the view that s 65(1) lacks the force attributed to it in the insurer’s submissions. Far from a medical guideline having the force of delegated legislation, s 65(1) provides that medical assessments are “subject to” “relevant provisions of” the Guidelines. The relevant provisions are those “relating to” certain procedures: “the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment”. That picks up, almost precisely, the language of s 44(1)(d), which is also directed to procedures.

19. [88]

    Section 133(2) now provides that:

20. [89]

    Although s 133(2) is expressed more strongly than s 65(1), it was not mentioned in the insurer’s submissions. There may be a reason for that, or a subtlety I have overlooked, but prima facie it would appear that regard ought also be had to s 133(2). There are two other matters which emerge from the foregoing. It is plain from comparing the two provisions that statute treats different aspects of the tasks to be performed by medical assessors differently. And it is plain from ss 65(1) and 133(2) that the Guidelines do not bind of their own force.

21. [90]

    It is true that the Medical Assessment Guidelines contain two statements about their own status. Immediately following the table of contents, the Guidelines contain an explanatory note:

22. [91]

    Further, cl 1.1 provides:

23. [92]

    I cannot see how either or both of those two (mutually inconsistent) sentences in the explanatory note and cl 1.1 within the Guidelines themselves can, self-levitatingly, alter their status. Whether something is or is not delegated legislation turns upon what the Parliament has done, rather than the language of the instrument.

24. [93]

    In any event, unlike the Medical Assessment Guidelines, the Permanent Impairment Guidelines do not purport to have the force of delegated legislation, nor do they state that they operate as if they were delegated legislation, and it was the Permanent Impairment Guidelines which were the principal focus of the insurer’s submissions.

25. [94]

    Consistently with their force being less than legislative, cl 1.3 of the Permanent Impairment Guidelines provides:

26. [95]

    The Guidelines do not state what force is to be given to text which is not in bold, but it is plain that it is something less than a “directive”.

27. [96]

    Finally, it will be seen that the insurer relied on cl 1.19 (evaluation of impairment), 1.33-1.35 (pre-existing impairment) and 1.42 and 1.43 (consistency). None of those clauses is in bold. All of the clauses relied on by the insurer therefore amount to something which is less than a directive.

28. [97]

    Reading the clauses in the Permanent Impairment Guidelines on which the insurer relied together with the provisions of statute, I would conclude that an argument based upon a breach of statute must grapple with the more qualified obligation to conduct an assessment in accordance with guidelines all of which fall short of being directive. I do not wish to be taken as saying that such a submission could never succeed in giving rise to judicially reviewable error; I do not express a view either way on that issue. But it will be seen that it is quite a different submission from that propounded by the insurer.

29. [98]

    Further, the foregoing would appear to confirm that there is nothing in the Guidelines – and certainly nothing in those parts of the Permanent Impairment Guidelines which have less than “directive” force – which of itself leads to the conclusion that a failure to have regard to some matter vitiates the assessor’s determination.

30. [99]

    In short, I cannot agree that the Guidelines are “delegated legislation” in the sense that they bind of their own force. Instead, if judicial review is sought of a decision of an assessor based upon guidelines, it will be necessary to address the provisions of statute which make the guidelines applicable, and it will be necessary to address the particular clauses relied on, because both the Act and guidelines made pursuant to it proceed on the basis that they are not all of the same legal force.

31. [100]

    SIMPSON JA: I agree with Basten JA.