Robson v QBE Insurance (Australia) Ltd

Mr Robson, the plaintiff, was injured in a motor vehicle accident near Failford in New South Wales on 16 May 2012. QBE Insurance (Australia) Ltd (QBE), the first defendant, was the compulsory third-party insurer in respect of the vehicle at fault in the accident and was the only active defendant in these proceedings. The State Insurance Regulatory Authority (SIRA), the second defendant, and Drs Cameron, Gray and Rosenthal in their capacity as assessors on the medical review panel, the third defendant, entered submitting appearances.

By his amended summons filed on 18 September 2020, Mr Robson seeks judicial review of the decisions of the review panel contained in three certificates issued under s 63(4) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) in relation to medical disputes arising out of the injuries said to have been suffered in the 2012 motor accident.

On 17 February 2015, Mr Robson lodged an application with the Medical Assessment Service (MAS) for determination of an impairment dispute as to whether a C5/6 disc rupture and nerve compression, said to have been caused in the motor accident on 16 May 2012, gave rise to permanent impairment in excess of 10%.

On 15 May 2017, Mr Robson underwent a C5/6 anterior cervical discectomy and fusion performed by Prof Owler.

On 5 September 2018, QBE lodged an application for assessment by the MAS of a treatment dispute in effect as to whether the C5/6 anterior cervical discectomy fusion surgery was reasonable and necessary and whether such treatment related to any injury caused by the motor accident.

On 15 February 2019, a medical assessor, Dr Philip Truskett, undertook an assessment of Mr Robson.

On 22 February 2019, Dr Truskett issued three certificates under s 61(1) of the MAC Act certifying that:

On 23 March 2019, QBE applied, under s 63 of the MAC Act, for a review of Dr Truskett’s medical assessment.

On 30 May 2019, the proper officer of the MAS determined that she was satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. Consequently, in accordance with s 63(3) of the MAC Act, QBE’s review application was referred to a medical review panel.

On 24 July 2019, the review panel decided that a re-examination of Mr Robson was necessary.

By letter dated 30 July 2019, the parties were informed by email from a Case Manager on behalf of the Proper Officer of the MAS that an examination of Mr Robson had been scheduled for 1 October 2019 and that:

The letter also included an invitation to the parties to provide submissions by 20 August 2019. In response to the invitation from the review panel, both Mr Robson and QBE made further submissions on the issue raised in the letter.

On 1 October 2019, Mr Robson was examined by Drs Cameron and Gray.

On 30 January 2020, the review panel revoked, under s 63(4) of the MAC Act, the certificates of Dr Truskett, and issued review panel certificates, together with reasons, certifying that:

On 29 April 2020, Mr Robson filed a summons in this Court effectively seeking orders setting aside the medical review panel’s certificates and having the matter remitted to SIRA for reallocation to another review panel and determination in accordance with law. The only substantive ground identified in the summons was that the review panel’s decision was affected by jurisdictional error or error of law on the face of the record because:

The summons came on for hearing before me on 18 September 2020. At the commencement of the hearing, however, Ms Gumbert of counsel, who appeared for Mr Robson, sought leave to file in court an amended summons, which contained an additional ground of review.

Mr Rewell of Senior Counsel, who appeared for QBE, opposed the filing of the amended summons on the basis that “[t]he ground was not pleaded in the summons. It was raised first in submissions. We responded. But we were entitled to rely on the summons.” It was not submitted that QBE could not meet the amended summons. Furthermore, the additional ground raised in the amended summons had been addressed by both sides in their written submissions. As there was no prejudice to QBE, leave to file the amended summons was granted.

The additional ground of review raised in the amended summons was that:

In order to consider these grounds it is necessary to review the review panel’s decision in some detail.

As mandated by the combined operation of ss 61(9) and 63(6) of the MAC Act, the review panel set out, in the same document as the certificates, the reasons for its findings.

After noting preliminary matters in part 1 sections A and B, the review panel’s reasons recorded, in part 1 section C, the documentation and other material, which the panel members had considered, namely: Dr Truskett’s certificates and reasons; the application for review form with attached documents and the reply form with attached documents; the proper officer’s determination referring the assessment for review; all the documents provided to Dr Truskett prior to his assessment; an additional document from the plaintiff’s lawyers requesting that the review panel should re-examine Mr Robson, a further statement from Mr Robson and further submissions; additional submissions from QBE lawyers; and, a further certificate including reasons of Assessor W Mason dated 18 February 2019.

It can be noted at this point that the review panel did not include in the list of documents considered by them a study by K Radhakrishnan, W J Litchy, W M O’Fallon and L T Kurland entitled “Epidemiology of cervical radiculopathy: A Population-based study from Rochester, Minnesota, 1976 through 1990” (1994), 117 Brain 325-335 (the Minnesota 1976 – 1990 Study), although it is clear from their reasons that they did consider this study. Furthermore, based on the unchallenged evidence of Mr Ian Graham, who was the contact solicitor who acted and acts for Mr Robson, I find that Mr Robson was not given notice of this study or the review panel’s intention to consider or rely upon it.

In part 2, the review panel noted, in section A of their reasons, what Dr Truskett had certified and, in section B, the disputes identified by the parties were recorded.

In part 3, the review panel set out at length what were described as “Matters Considered and Decided by the Panel”, under three headings: “A. Evidence Considered”; “B. Additional Evidence”; and, “C. Panel Deliberations”.

In part 3 section A, it was noted that the review panel had decided, after considering “all of the available evidence”, that a re-examination of Mr Robson was necessary in order to reach its decision, “because there was varying documentation available regarding the time course of the onset of [his] symptoms post the motor accident and the Panel wished to review [Mr Robson’s] own history”. It was also noted by the panel that the “clinical findings/documentation of possible cervical radiculopathy varied amongst medical assessors and a contemporary WPI assessment post cervical spine surgery may be indicated” and that there had been a request by Mr Robson for re-examination.

Furthermore, it was said under this heading that:

The review panel’s record of additional evidence, and its assessment of that evidence, in section B of part 3, was divided into subsections which generally dealt with the topics as set out below.

Section B commenced with a lengthy description of the history and other information obtained from Mr Robson at the re-examination on 1 October 2019. This included Mr Robson’s report that he could not use his left arm and could not effectively move his left arm in front of his torso without distress as well as his suffering from anxiety/depression which was “pretty bad” which came on after the accident and required ongoing treatment.

It was noted that Mr Robson denied any past history of injury or symptoms with regard to the neck, left shoulder, left upper limb or back but there had been a recurrent feeling of “general discomfort” related to work activities, before and after the motor accident. At this point, the review panel inserted the first of numerous paragraphs with the subheading “Comment”, although at this point the “comment” was simply to note that Mr Robson said that a statement from one of his employers that he had complained of pins and needles in the left upper arm in the six months or so before the motor accident and after the accident was “totally incorrect”.

The review panel then recorded the current symptoms complained of by Mr Robson.

Next, the review panel recorded the results of their examination of Mr Robson.

The review panel then summarised various investigations by way of x-rays, ultrasounds, MRIs and similar investigations of the left shoulder and cervical spine during the period from June 2012 to July 2013.

Under the heading “Review of File Material”, the review panel included summaries of, or extracts from, a large number of documents as follows:

Despite being included under the heading “Review of File Material”, it does not appear that the Minnesota 1976 – 1990 Study was “File Material”. It was not part of the material provided to the review panel in accordance with cl 16.19 of the Medical Assessment Guidelines issued by SIRA effective from 1 October 2008.

Interspersed with the extracts and summaries of the “File Material” were the review panel’s comments on the information provided in some of the documents. Those comments were generally provided under the subheading “Comment”. The “comments” largely appeared to be limited to comments or arguments supportive of the conclusion that Mr Robson had suffered no relevant injury relating to the C5/6 disc in the 2012 motor accident, often on the ground that there was no documentation recording complaints of neck injury or localised symptoms in the cervical spine immediately following the motor accident.

In addition, the review panel’s “comments” also included suggestions to the effect that Mr Robson’s C5/6 disc issues were associated with general cervical degenerative changes. The support for general cervical degenerative changes accounting for Mr Robson’s C5/6 disc problems and symptoms appears to have been found in the Minnesota 1976 – 1990 Study. The review panel referred to this study in the following terms at the end of its “Review of File Material”:

Despite the heading of section C, the review panel did not record extensive “deliberations” in this section but stated as follows:

The review panel consequently stated “as no injury was caused by the motor accident … there was no resultant permanent impairment and no apportionment indicated”.

The review panel also concluded that, as no injury was caused by the motor vehicle accident, the C5/6 anterior cervical discectomy and fusion surgery performed by Associate Professor Owler on 15 May 2017 did not relate to any injury caused by the motor accident, and these treatments were therefore not reasonable and necessary in the circumstances.

In the remaining parts of its reasons, parts 4, 5 and 6, the review panel merely restated its conclusions, expressed the view that all of the issues raised in the application had been dealt with and noted that all assessors on the review panel agreed with the certificate.

In his amended summons, Mr Robson is relevantly seeking orders as follows:

As has been noted above, the two grounds of review said to give rise to both jurisdictional error and error of law on the face of the record were in substance that:

The relevant principles were not the subject of any substantial dispute between the parties. It is sufficient, in these circumstances, to note what follows.

The review panel’s certificates in a case such as this are liable to be set aside either for jurisdictional error or error of law on the face of the record: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot); [2013] HCA 43 at [26] – [27] (French CJ, Crennan, Bell, Gageler and Keane JJ). This Court’s power to grant relief in such cases is confirmed by s 69 of the Supreme Court Act 1970 (NSW).

Jurisdictional error embraces different types of error but, relevantly for present purposes, includes failing to afford each party procedural fairness: Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81. Jurisdictional error may be established by any admissible evidence that is relevant for that purpose: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 (McGiffen) at [45] (Meagher, Simpson, Payne JJA).

By way of contrast, if relief is to be granted as a result of an error of law within jurisdiction, the error must be identified “on the face of the record”: McGiffen at [69]. In this case, the “record” included the review panel’s reasons which were set out in the certificates viewed by the panels, as required by the combined operation of ss 61(9) and 63(6) of the MAC Act: Rodger v De Gelder [2015] NSWCA 211 at [73].

The MAC Act provides for the medical assessment of injuries and impairment which result from motor vehicle accidents, such as were allegedly suffered by the plaintiff in the present case.

Section 131 of the MAC Act provides that no damages for non-economic loss are to be awarded unless the degree of permanent impairment of the injured person as a result of the motor accident is greater than 10%. Section 132 provides that if there is a dispute about whether the degree of permanent impairment exceeds the 10% threshold, a court may not award any such damages unless the degree of impairment has been assessed by a medical assessor under Pt 3.4 of the MAC Act. In the present case, there was a dispute as to whether Mr Robson’s degree of impairment as a result of the motor accident was greater than 10%.

In addition, there was also a dispute as to whether the treatment received by Mr Robson in relation to his C5/6 disc problems was “reasonable and necessary in the circumstances” and whether such treatment related to the injury caused by the motor accident.

These disputes or disagreements each related to a medical assessment matter as referred to in s 58(1) of the MAC Act which relevantly provides:

Consequently, those medical assessment matters were dealt with under Pt 3.4 of the MAC Act. For this purpose, an assessment was carried out by Dr Truskett and, as noted above, he provided his three certificates on 22 February 2019. As it was entitled to do, QBE sought a review of those medical assessments, under s 63 of the MAC Act.

Section 63 provides:

The effect of s 63(3A) and (6) is that the review panel is to conduct its review by way of a new assessment of all the medical assessment matters addressed in the original assessment and is to comply with s 61 in determining new certificate or certificates issued by it, including s 61(9) which requires that reasons be set out in the certificate or certificates.

In addition, s 65(1) of the MAC Act, which is also in Pt 3.4 provides:

Further and in particular in relation to the dispute as to Mr Robson’s degree of permanent impairment, s 133 of the MAC Act prescribes the method for assessing the degree of impairment. That section provides:

Section 44 of the MAC Act empowers SIRA to issue Motor Accidents Medical Guidelines, as referred to in ss 65 and 133.

It was not in dispute that the relevant guidelines for present purposes were the Motor Accident Medical Assessment Guidelines issued by SIRA under s 44(1)(d) of the MAC Act, with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Part 3.4 of the MAC Act, effective from 1 October 2008 (the Medical Assessment Guidelines).

Chapter 12 of the Medical Assessment Guidelines deals with documentation and other supporting material that may be considered by the assessor conducting the original assessment of the relevant medical assessment matters. It relevantly provides:

Chapter 16 of the Medical Assessment Guidelines makes provision in relation to reviews of medical assessments by a review panel in accordance with s 63 of the MAC Act.

Clause 16.10 expressly makes Ch 12 of the Medical Assessment Guidelines applicable to reviews by the review panel. Clause 16.10 provides:

Clause 16.16 permits the proper officer to obtain further information or documentation as follows:

The material to be put before the review panel by the proper officer is dealt with in cl 16.19 as follows:

The assessment process to be undertaken by the review panel is governed by cl 16.21 as follows:

Clause 16.23 provides that, if required, the proper officer is to advise the parties of any determinations made in a panel conference within five days of being advised of any such determination.

From these provisions of the Medical Assessment Guidelines, it can be seen that one of the objects of Chs 12 and 16 is to ensure that parties to a medical assessment under s 61 and a review under s 63 of the MAC Act are afforded procedural fairness by having all documents before the assessor or review panel disclosed to the parties so that they are informed of, and can adduce evidence and make submissions in relation to, the material which the assessor or review panel may take into account.

The substance of Mr Robson’s first ground of review was that the review panel’s conduct in considering and relying on the Minnesota 1976 – 1990 Study in determining the review, without putting him on notice of its intention to do so or affording him the opportunity to respond to it, amounted to a denial of procedural fairness. Thus, the review panel’s decision was affected by jurisdictional error and the review panel’s certificates should be set aside.

Mr Robson submitted in substance that:

It was contended that if Mr Robson had been put on notice of the review panel’s intention to consider the study, he could have responded in a number of ways, including, for example, by making submissions as to its lack of relevance to the Mr Robson’s situation in Australia in 2020 and drawing attention to deficiencies in the study. Consequently, the failure to give the parties notice of the intention to consider or rely on the study led to practical injustice in the present case. Ms Gumbert referred to a number of authorities including Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; [1994] FCA 293.

While QBE accepted that the review panel was required to accord procedural fairness to Mr Robson, it was contended that such a duty did not extend to notifying him of the panel’s single reference to peer-reviewed medical literature that was a small part of its analysis. In the present case, it was submitted that the determination that the C5/6 disc protrusion that led to the surgery by Prof Owler was not caused by the motor accident was not dictated or determined by the study to which the review panel briefly referred but followed from a multi-factorial analysis of the circumstances of the motor accident, the extensive history taken from Mr Robson, the medical treatment history and the radiological evidence, each aspect of which involved the exercise of the panel’s collective clinical judgement.

Further it was contended that the review panel is not required to give notice to the parties of its intention to cite a peer-reviewed medical journal in its reasons and, in any event, the review panel did not rely on the study in a substantial way. QBE relied on the contention that, as explained by the High Court in in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the function of the review panel is to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. It was submitted that this was what the review panel did in the present case and that merely referring in passing to a medical journal article did not involve any denial of procedural fairness.

Mr Rewell also sought to distinguish this case from Pascoe v Mechita Pty Ltd [2019] NSWSC 454, in which Button J stated, at [65], that a reliance by a review panel on literature that is critical to the actual process of calculating WPI must be disclosed to the parties and:

Mr Rewell submitted that unlike in Pascoe where the actual process for calculating the extent of an injury was not disclosed to the parties, in this case the journal article did not dictate the determination of a certain WPI but merely formed, at most, one part of the multi-factorial analysis referred to above.

It was accepted by the parties that the review panel owed a duty to accord procedural fairness to Mr Robson and to QBE. This was correct, see for example Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 (Frost) at [31].

The content of the obligation to accord procedural fairness depends on what is required to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]; Frost at [41].

At a general level, procedural fairness requires a decision-maker such as the review panel:

Beyond that, however, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision: SZGUR at [9].

Where a person is entitled to procedural fairness, that person will generally be entitled to be made aware of, and have the opportunity to address any adverse information that is credible, relevant and significant to the decision to be made: Kioa v West (1985) 159 CLR 550 at 629 (Brennan J) (and note also Mason J at 587).

How those general principles are to be applied in a context such as the present, where the administrative decision making body is comprised of persons with relevant medical expertise, was considered by Ashley JA in North v Homolka [2014] VSC 478. At [104], it was held:

In the present case, the Minnesota 1976 – 1990 Study was expressly referred to under the heading “Review of File Material” in section B of part 3 of the review panel’s reasons. As already noted, to the extent that this indicated that the study was part of the “File Material”, this was incorrect.

What the review panel said about the study has been quoted in full above. Most significantly, the review panel quoted the following passage directly from the study:

Thus, the two aspects of the Minnesota 1976 – 1990 Study which the review panel manifestly saw as relevant in the present case were that rear end collisions did not cause intervertebral disc extrusion and the major cause of cervical radiculopathy was degenerative disease of the spine.

The review panel’s history taken from Mr Robson clearly described the motor accident in a way which established that it was a rear-end collision and the panel also referred to a “context of general cervical degenerative changes” in rejecting other experts’ opinions concerning causation of Mr Robson’s injuries.

One particular example of how these two aspects of the Minnesota 1976 – 1990 Study probably influenced the review panel’s reasoning can be found in the panel’s consideration of Dr Wallace’s conclusions in his report of 17 October 2012. In that report, Dr Wallace expressed the opinions that “Mr Robson suffered an injury at his cervical spine as a result of a rear end motor vehicle collision …” and “Mr Robson has no evidence of a pre-existing degenerative condition at his cervical spine”. Both of these opinions were rejected by the review panel. Their express reasoning referred to the lack of documentation of neck injury or symptoms related to the motor accident in the early post-accident period and the contention that “subsequent MRI and bone scans showed established mid-cervical degenerative changes of longstanding nature”. Although the study is not expressly mentioned by the review panel at this point in its “comments” in relation to Dr Wallace’s opinions, passages from the study relied on by the review panel can be seen as informing and supporting the reasoning.

A further example of the influence of the Minnesota 1976 – 1990 Study can be seen in the review panel’s “comments” on the Workers’ Compensation Commission Medical Assessment Certificate prepared by Dr Drew Dixon, dated 12 September 2017, in which he said that Mr Robson:

The review panel “comment” in this regard included:

Given the parts of the Minnesota 1976 – 1990 Study to which the review panel drew attention in their reasons and their “comments” relating both to the nature of the accident and general cervical degeneration, it appeared to me that the study was likely to have influenced the review panel to a significant degree to reach the conclusion that Dr Dixon’s opinion should be rejected.

I am also satisfied more generally that the conclusions in the Minnesota 1976 – 1990 Study to which the review panel drew attention and which were potentially applicable to Mr Robson’s particular circumstances, constituted adverse information that was relevant to and significant for the decision to be made. The review panel considered the information sufficiently credible to quote it in their reasons. In those circumstances, Mr Robson was entitled to be made aware of, and have the opportunity to address, the study including the particular aspects identified by the review panel. Notwithstanding this, the review panel did not at any stage bring to the attention of Mr Robson the existence of the Minnesota 1976 – 1990 Study or that the review panel might rely to a greater or lesser extent on that study in determining the review adversely to him.

This involved practical injustice to Mr Robson. The relevance and reliability of the Minnesota 1976 – 1990 Study were far from unassailable. Although self-described as an “epidemiological survey”, the study related only to 561 persons from one town in Minnesota, with a population of about 70,000 persons, treated at one clinic over a period of 14 years from 1976 to 1990: see p 325. Only 14.8%, or 83 persons, had a history of physical exertion or trauma preceding onset of symptoms and, of those:

In addition to questioning the statistical validity and reliability of this “epidemiological survey”, especially in relation to conclusions concerning automobile related injuries, Mr Robson could also have made submissions as to the lack of relevance of this study to persons injured in New South Wales in 2012:

The Minnesota 1976 – 1990 Study was not before the review panel by any of the processes provided in Chs 12 and 16 of the Medical Assessment Guidelines nor was it otherwise brought to the attention of Mr Robson or QBE. It was not obvious, nor would it have been reasonably anticipated, on the material known to Mr Robson to be before the review panel (which did not include the study), that the review panel might proceed on the basis that it had been established that rear end collisions did not, or were unlikely to, cause intervertebral disc extrusion and that the major cause of cervical radiculopathy is degenerative disease of the spine, having regard to the passages from the Minnesota 1976 – 1990 Study adopted by the review panel.

The decision of Button J in Pascoe v Mechita Pty Ltd [2019] NSWSC 454 is similar to the present case. In Pascoe, a medical appeal panel relied on ISO tables 1999 to 2013 with regard to progressive hearing loss induced by noise in the process of calculating whole person impairment as a result of hearing loss for the purposes of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). In that case, the plaintiff had no notice that ISO tables could play a role in the subsequent adverse determination. It was held that the plaintiff had been denied procedural fairness. In considering the situation of an expert panel as an administrative decision maker, Button J stated, at [73] and [74]:

A similar approach was adopted in Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 by Harrison AsJ at [60].

I have already explained why the Minnesota 1976 – 1990 Study was not “unassailable”. Nor can the conclusions of the study relied on by the review panel be said to be common knowledge. The fact that the study did not determine the outcome in the present case but was part of a multi-factorial analysis, if that be the case, does not, however, establish that the aspects of the study identified by the review panel were not a more than minimal factor in the review panel’s conclusions, such as to attract the obligation to disclose the study to Mr Robson and allow him the opportunity to respond it.

In all these circumstances, in my view, Mr Robson was denied procedural fairness as contended in his first ground of review. As a result, the review panel fell into jurisdictional error in making the determinations recorded in the three certificates and those certificates are liable to be set aside.

It could not be said in this case that the absence of the opportunity for Mr Robson to make submissions and lead evidence in response to the Minnesota 1976 – 1990 Study did not deprive him of the possibility of a successful outcome. Hence, there is no reason why relief should be refused.

The second ground of review relied upon by Mr Robson was to the effect that the review panel impermissibly treated the absence of contemporaneous medical records of injury to his cervical spine as a decisive or determinative factor when considering the causation of Mr Robson’s injury and thereby fell into jurisdictional error.

Ms Gumbert submitted in effect that the review panel impermissibly relied on the absence of contemporaneous evidence of cervical spine injury in making its decision and treated that absence as a determinative factor in relation to the question of causation. In this way, it was said that the review panel fell into jurisdictional error. More particularly, it was submitted that a review of the review panel’s reasons demonstrated that the overriding theme was that the absence of reference to injury to or symptoms in the cervical spine in Dr Hussein’s clinical notes taken during consultations immediately after the motor accident led to the conclusion that Mr Robson’s C5/6 disc injury was not caused by the motor accident.

Mr Rewell submitted that the review panel concluded that the symptoms of which Mr Robson complained were related to a pre-existing degenerative disease in the cervical spine and were neither caused nor aggravated nor accelerated by the motor accident. It was also contended that these conclusions were reached by a multifactorial analysis which included, inter alia, factors such as: the nature of the motor collision itself; the fact that Mr Robson told the review panel that he did have some general discomfort after the accident but that discomfort was typical of what he experienced at the end of the usual working day when he had done heavier activity; Mr Robson telling the panel that he maintained his normal work duties after the accident; the panel’s view that there were no reported symptoms consistent with a C5/6 disc bulge until at least September 2012; the panel’s view that the symptoms reported after September 2012 were not consistent with true radiculopathy; and the panel’s view that the radiological findings at C5/6 were not consistent with traumatic injury in the context of the symptom history, but were consistent with degenerative change.

This ground was based upon the type of error identified by the Court of Appeal in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229; 77 MVR 348 (McGiffen). At [64] – [65] Meagher, Simpson and Payne JJA said:

Earlier, Campbell J in Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; (2012) 61 MVR 245 (Owen) had identified this type of jurisdictional error as identifying a wrong issue as follows, at [52]:

It can be accepted, as Mr Rewell submitted, that the review panel took into account the factors identified in his submissions in reaching their conclusion. In this sense, the panel can be said to have adopted a multifactorial approach.

On a fair reading of the review panel’s reasons as a whole, however, it appears to me that the panel regarded the absence of documentation, such as clinical notes made immediately following the accident, referring to symptoms in or related to Mr Robson’s neck, as the determinative factor, albeit among other factors, in reaching their conclusion as to causation. While my conclusion concerning the review panel’s reasons is based on reading them as a whole, what is set out in the following paragraphs highlights some of the material which gave rise to this understanding.

Towards the beginning of their reasons, the review panel stated that, after considering all of the available evidence but before the review panel had examined Mr Robson, they were “inclined to find that an injury to the cervical spine did not occur in the subject accident due to the lack of contemporaneous documentation.” (underlining added). This was a significant indication that the review panel was disposed to rely on “the lack of contemporaneous documentation” as determinative of whether Mr Robson’s C5/6 disc rupture or bulging was caused by the motor accident, subject to the examination of Mr Robson and any further submissions of the parties.

Mr Robson was re-examined and the most significant purpose for this appeared to be to obtain a further history from Mr Robson. The review panel’s record of Mr Robson’s account of what occurred in the motor accident on 16 May 2012 included that he was stationary at the time and suffered a rear end collision leaving him suddenly covered in glass with his vehicle potentially on the path of oncoming traffic. He was able to drive the vehicle off to the side and alight. He then drove 2 to 3 km home and had a shower to remove the glass. He had no idea of being injured from the accident at that stage but had some general discomfort, with that discomfort being typical of that he experienced at the end of the usual working day when he had to do some heavier activity. The review panel then recorded as follows:

In addition to his re-examination, Mr Robson provided a further statement to the review panel in which he explained how his GP, Dr Hussain, came to prepare his notes of the consultations immediately after the accident. That statement contained the following:

This additional statement does not, however, appear to have been the subject of specific comment in the review panel’s reasons.

As explained above, the review panel also provided quite extensive extracts from, and summaries of, the material before it, under the heading “Review of File Material”. Interspersed with these extracts and summaries of the “File Material” were the review panel’s comments on the information provided in some of the documents, generally but not always with the subheading “Comment”. These “comments” often included comments or arguments supportive of the conclusion that Mr Robson had suffered no relevant injury relating to the C5/6 disc in the 2012 motor accident, on the ground that there were no documented complaints of neck injury or localised symptoms in the cervical spine immediately following the motor accident.

The “Review of File Material” included the following in relation to the immediate post-accident clinical notes of Mr Robson’s GP, Dr Hussain:

Thus, two weeks after the accident there is documentation of symptoms related to the motor accident including pain, limitation of movement and radiation to the upper limb. Notwithstanding this, the review panel’s “comment” indicates an apparently pedantic focus on absence of reference to “cervical” or “specific” injury.

The review panel’s further consideration of the GPs post-accident notes continued:

The consistent theme in these “comments” is lack of documentation of specific cervical related complaint or symptoms.

The “Review of File Material” continued with material including what follows.

Relying generally on the lack of documentation of neck injury or symptoms related to the motor accident in the very early post-accident period or disagreement as to the interpretation of investigative reports, the review panel made “comments” rejecting not only the opinions of Dr Wallace, Dr Kennedy and Assessor Hyde Page but also rejected some of the histories taken by, and opinions of, Dr Hsu, spinal surgeon, Dr Kleinman, orthopaedic surgeon, Dr Owler, neurosurgeon, Dr Harbison, orthopaedic surgeon, Dr Hopcroft, general surgeon (orthopaedic), Dr Carney, neurosurgeon, Dr Millons, surgeon, Dr Drew Dixon in his medical assessment certificate for the Workers Compensation Commission, and Dr Truskett in his certificates of 22 February 2019. The reasons for rejecting these opinions set out in the “comments” included, without attempting to be exhaustive:

From the comments in the “Review of File Material”, I was left with the distinct impression that the absence of documentation of specifically identified cervical injury by Dr Hussain in the period immediately following the motor accident was the determining factor, even in the context of a multifactorial approach, in the review panel’s conclusion that Mr Robson’s C5/6 disc protrusion was not caused by the motor accident.

This impression was confirmed by section C of the review panel’s reasons under the heading “Panel Deliberations”. There, it was stated in relation to, inter alia, the C5/6 disc protrusion:

This part of the review panel’s reasons confirms my understanding of the panel’s approach to the assessment of causation of Mr Robson’s injury since it makes explicit that the panel’s “deliberation” on the question of causation of the C5/6 disc protrusion was confined to one factor or basis, namely “the early post-accident history and medical documentation”. No other factor was noted as affecting the panel’s conclusion in this regard. The review panel, in substance, addressed only the question of whether there was contemporaneous documented complaint of injury to the cervical spine and did not address the actual question posed by s 58(1)(d), namely what was the degree of permanent impairment of Mr Robson as a result of the injury caused by the motor accident.

For these reasons, I conclude that the review panel made the type of jurisdictional error identified in McGiffen and Owen, referred to above. In addition, in my view, the following comment of R S Hulme AJ in Bugat v Fox [2014] NSWSC 888 at [32] are also applicable in the present case:

Consequently, the three certificates issued by the review panel are also liable to be set aside on the basis of the second ground of review.

It was not submitted by QBE that if there was found to be jurisdictional error or error of law on the face of the record, the Court should nonetheless, in the exercise of its discretion, refuse relief. Nor do I accept that there are any grounds which would justify refusal of relief in the present case.

The plaintiff has been successful in his application for judicial review. There do not appear to me to be any circumstances which would render it appropriate to deviate from the usual rule that costs follow the event.

Accordingly, I propose to order that the defendant pay the plaintiff’s costs of this application as agreed or assessed. Should the parties wish to make an application for a different costs order, this may be done by way of a notice of motion filed within 14 days of the entry of these orders, pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW).

Mr Robson sought that, in remitting the matter, the Court should direct that it be dealt with by a differently constituted review panel. In the circumstances of the present case and given the nature of the matters taken into account by the review panel, there does appear to me to be some substantial basis for adopting this approach and, in my view, the interests of justice require the making of an order to that effect, notwithstanding the general reluctance of the Court to interfere with the management of the Medical Assessment Service.

Accordingly, the orders of the Court are: