Brammer v AAI Limited t/as AAMI

1. [1]

   HER HONOUR: This is a judicial review of the decisions of two Medical Assessors and the Proper Officer of the State Insurance Regulatory Authority (“SIRA”) under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”).

2. [2]

   The plaintiff is Jennifer Brammer. The first defendant is AAI Limited t/as AAMI (“the insurer”). The second defendant is SIRA. The third defendant Philippa Harvey-Sutton in her capacity as a Medical Assessor of the State Insurance Regulatory Authority. The fourth defendant is Kathryn Williamson in her capacity as a Medical Assessor of the State Insurance Regulatory Authority. The second, third and fourth defendants have filed submitting appearances. The parties relied on a joint court book.

3. [3]

   By amended summons filed 27 April 2021, the plaintiff relevantly seeks:

   1. (1)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and certificate of the third defendant, Dr Philippa Harvey-Sutton, in her capacity as a medical assessor of the second defendant, SIRA dated 16 December 2019, made purportedly pursuant to s 61 of the MAC Act (“the Medical Assessor’s decision).

   2. (2)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and certificate of the fourth defendant, Kathryn Williamson, in her capacity as a medical assessor of SIRA, dated 10 August 2020, made purportedly pursuant to section 61(10) of the Act (“the combined certificate”).

Extension of time

1. [4]

   The plaintiff sought an order that an extension of time to commence proceedings, pursuant to Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) with respect to the Medical Assessor’s decision and the combined certificates. The insurer does not oppose an extension of time being granted to the plaintiff to bring proceedings in relation to the certificates issued by the Medical Assessors. I grant an extension of time to file the summons.

2. [5]

   If the decision of the Medical Assessor is set aside, the insurer agrees that the decision of the proper officer and the combined certificate should be set aside.

Background

1. [6]

   On 26 May 2012, the plaintiff was involved in a motor vehicle accident (“the accident”). The insurer is the CTP insurer of the vehicle at fault in the accident.

2. [7]

   There was a dispute between the plaintiff and the insurer as to the medical assessment matter in s 58(1)(d) of the MAC Act, namely, whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Accordingly, an application for assessment of that dispute was made to SIRA.

3. [8]

   On 16 December 2019, Assessor Harvey-Sutton (“the Medical Assessor”) issued a certificate and a statement of reasons made in accordance with Part 3.4 of the MAC Act (“the Medical Assessor’s decision”). The certificate certified that 0% of the plaintiff’s whole person impairment (WPI) was causally related to the injuries sustained in the accident.

4. [9]

   As more than one medical assessor was required to assess whether the plaintiff’s WPI exceeded 10%, the plaintiff was also assessed by Medical Assessor McGlynn, who issued a certificate dated 24 July 2020. He assessed 5% WPI in relation to a skin condition (this decision is not the subject of this judicial review).

5. [10]

   A combined certificate was then issued by Medical Assessor Kathryn Williamson, purportedly pursuant to s 61(10) of the MAC Act, on 10 August 2020, certifying that the plaintiff’s total WPI was 5% (‘the combined certificate”).

6. [11]

   In accordance with cl 16.3 of the SIRA Medical Assessment Guidelines, the plaintiff could not seek review of the Medical Assessor’s decision until after the combined certificate was issued.

7. [12]

   The plaintiff then lodged an application for review of the Medical Assessor’s decision, pursuant to s 63 of the MAC Act.

8. [13]

   On 3 November 2020, the proper officer of SIRA dismissed the plaintiff’s application for review of the assessor’s decision (“the proper officer’s decision”).

9. [14]

   The plaintiff seeks relief from the whole of the Medical Assessor’s decision, the combined certificate and the proper officer’s decision.

The relevant statutory framework

1. [15]

   I shall briefly set out the relevant statutory framework of the provisions of the Motor Accidents Compensation Act 1999 (NSW) at the time of the decisions under review.

2. [16]

   Part 3.4 of the MAC Act provides for the medical assessment of claimants injured in a motor vehicle accident, and Part 5.3 provides for damages for economic loss. Sections 57 to 58, 60, 61, 63, 131 and 133 are relevant here. They read:

The relevant Guidelines

1. [17]

   The SIRA Motor Accident Permanent Impairment Guidelines (“the Permanent Impairment Guidelines”), as at 1 June 2018, made pursuant to s 44(1)(d) of the MAC Act, apply to the assessment of permanent impairment disputes by virtue of ss 133 and 106(1) of the MAC Act. The Court of Appeal has held that a failure to comply with these guidelines may constitute a constructive failure to perform a statutory duty: see Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356 at [9], [16-22], [44], [49], [51], [56], [108].

2. [18]

   The SIRA Medical Assessment Guidelines (“the Medical Assessment Guidelines”), as at 1 October 2008, made pursuant to ss 44(1)(d) and 65(1) of the Act, apply to medical assessments conducted pursuant to the MAC Act.

3. [19]

   Clauses 1.5, 1.6 and 1.7 of the Permanent Impairment Guidelines refer to causation. They read:

4. [20]

   The subject of this judicial review is the Medical Assessor’s decision on causation in relation to the plaintiff’s left ankle injury. The plaintiff submitted that there are a number of jurisdictional errors and/or errors on the face of the record that occurred in the making of the decisions of the Medical Assessor and the proper officer. I shall start with the Medical Assessor’s decision and then proceed to the proper officer’s decision, if necessary.

5. [21]

   The first ground of judicial review is that the Medical Assessor failed to provide proper and lawful reasons for her conclusions as to causation in relation to the plaintiff’s left ankle. In particular, the Medical Assessor failed to explain why the existence of previous fractures in the feet, and the fact that the plaintiff had competed in multiple events prior to the accident, meant that it was “only a matter of time” before the plaintiff would have developed a fracture of the ankle, even if the accident had not occurred (the failure to provide proper reasons).

6. [22]

   The second ground of judicial review is that there was no evidence of a pre-existing injury or pre-existing problems in the left ankle and there is no evidence that any such injury was impending or would have occurred without the intervening accident. The assessor erred in law in finding that an injury would have occurred even if the accident had not occurred, when there was no evidence to support this finding (no evidence).

The Medical Assessor’s decision dated 16 December 2019

1. [23]

   The Medical Assessor (at p 2) of her decision identified that the injury to be assessed was:

2. [24]

   The Medical Assessor (at p 3) noted that the plaintiff had a history of past stress fractures in her feet. However, there was no history referred to of any prior injury to the plaintiff’s left ankle (My emphasis).

3. [25]

   Prior to the accident, Ms Brammer did not suffer from left ankle impairment. There is evidence of stress fractures in her feet in 1996/97 (16 years before the accident) and podiatry consultations (not related to her left ankle) in 2003 and 2005 (9 and 7 years before the accident). There is no evidence of left ankle problems pre-dating the accident.

4. [26]

   Under the heading “Pre-Accident Medical history and personal details”, the Medical Assessor recorded:

5. [27]

   Under the heading “History of the Motor Accident”, the Medical Assessor stated:

6. [28]

   Under the heading “History of Symptoms and Treatment Following the Motor Accident”, the Medical Assessor noted that Ms Brammer stated that she cannot recall having pain in the left ankle on weight bearing and is unsure if she had any pain in the left ankle or not.

7. [29]

   The Medical Assessor also recorded that she:

8. [30]

   The Medical Assesor continued:

9. [31]

   The Medical Assessor conducted a medical examination of Ms Brammer’s left ankle and found inconsistencies in her ranges of left ankle movement. These inconsistencies were also brought to Ms Brammer’s attention by the medical assessor between the time when she was formally examined and when she was standing and indicating the ranges in her ankle movement. Ms Brammer explained that there was pain in her left ankle and that she had difficulty remembering and difficulty with recall.

10. [32]

    Under the heading “Conclusion – Diagnosis and Causation” Medical Assessor stated (at p 11-12):

11. [33]

    In the summary of injuries listed by the parties and not caused by the accident the following injuries were not caused by the motor accident:

Judicial review ground 1 – Adequacy of reasons

1. [34]

   The Medical Assessor is obliged to set out lawful reasons for the determination pursuant to section 61(9) of the Act and clause 13.2, and 16.24 of the Motor Accident Guidelines.

2. [35]

   In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (“Wingfoot”), the High Court determined in a similar statutory regime concerning a medical panel of assessors in a Victorian workers compensation context, in relation to the duty to give reasons (at [55]) that:

3. [36]

   Wingfoot has been applied in New South Wales relation to medical assessors under the New South Wales scheme in the MAC Act: see Frost v Kourouche (2014) 86 NSWLR 214 at [2] and [40].

4. [37]

   The plaintiff submitted that the Medical Assessor in making her decision, was bound to set out her actual path of reasoning and to do so in terms sufficiently clear so as to enable one to determine whether or not she fell into legal error pursuant to s 61(9) of the MAC Act. The Medical Assessor failed to do this with respect to her findings of causation of the left ankle injury.

5. [38]

   The Medical Assessor had concluded that the injuries were, effectively, inevitable, and this was a material and determinative factor in the decision regarding the issue of causation of the left ankle injury, even if the Medical Assessor had also had regard to some other factors leading up to her determination.

6. [39]

   It may well be that the Medical Assessor could have determined that the left ankle injury was unrelated to the accident, due to the delayed onset or delayed reporting (although the plaintiff does not concede that). However, ultimately, the reasons given for the Medical Assessor’s decision strayed from that consideration and reveal that the other considerations (previous stress fractures, prior sporting events) were significant determinative factors.

7. [40]

   Neither of those two factors explain how or why the Medical Assessor has concluded that an injury to the left ankle (a different body part) was inevitable and that the left ankle injury was not causally related to the accident.

8. [41]

   The Medical Assessor did not identify or explain the connection between stress fractures to both feet and a subsequently inevitable left ankle injury. Nor did she identify the probability of ankle injury as it relates to the activities of the plaintiff, when it would have eventuated or why those particular activities would have resulted in the ankle injury.

9. [42]

   The connection between the factors identified by the Medical Assessor, and the causation of the left ankle injury, are wholly unexplained. The duty to give lawful reasons is not fulfilled: see Wingfoot. These are not gaps that can be filled by necessary inference.

10. [43]

    In Sadsad v NRMA Insurance Ltd and Others (2014) 67 MVR 601 (“Sadsad”), Hamill J said at [47]:

11. [44]

    Also in Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 (“Francica”), Hall J stated, at [17]- [18]:

12. [45]

    On any reading of the Medical Assessor’s decision, the left ankle causation was a key battleground between the parties. There was more than one conclusion open to the Medical Assessor. In circumstances where there was no pre-accident injury or impairment in the left ankle, one available conclusion was that the ankle impairment was caused by the accident (as had been submitted by the plaintiff below). The Medical Assessor has not lawfully explained why she preferred the conclusion that it was not causally related to the accident. Indeed, the purported “reasons” do not provide any actual support for the conclusion she did reach, let alone explain why it was her preference over the other available conclusion.

13. [46]

    The stress fractures to the foot were expressly distinguished from any subsequent injury to the ankle. There was no explanation from the assessor as to how a historical stress fracture to the foot amounted to evidence that an ankle injury was inevitable.

14. [47]

    This case embodies the circumstance envisaged by the Court of Appeal, in Francica and Vegan, where there was a precise battleground between the parties, more than one conclusion was open to be made. Having regard to the precise battleground between the parties, the assessor was required to give reasons for the preference of one conclusion over another.

15. [48]

    In IAG Limited v Sleiman [2017] NSWSC 1346 (“Sleiman”), Fagan J (at [29]) held that an unexplained leap in the reasoning process, and internally inconsistent reasoning resulted in the decision lacking evident and intelligible justification and therefore the decision should be set aside for legal unreasonableness. Even on the most beneficial of constructions, there is a leap in the path of reasoning here, like that observed in Sleiman and Zurich Australia Insurance Limited v Drca and Ors (2018) 87 MVR 100 at [65].

16. [49]

    In oral submissions, counsel for the plaintiff submitted that the insurer’s argument is essentially akin to a materiality argument or a futility argument in that it is saying, look, this part of the reasons that the plaintiff says was inadequately reasoned and/or based on no evidence (the second ground of judicial review , it did not make a difference to the decision because the assessor had already determined that the left ankle injury could not have been caused by the accident.

17. [50]

    The first point is that having regard to the decision that the Medical Assessor had never formed the conclusion that it could not be related to the accident and in fact didn’t form any conclusion about causation until she embarked on the unlawful reasons section of the decision where she referred to this alleged inevitability.

18. [51]

    Counsel for the plaintiff referred to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALRJ 780 (“Hossain”), where the High Court as [30] stated:

19. [52]

    The second point is, did the impugned passage afflict the consideration of causation in any way? Having regard to Robson v QBE Insurance (Australia) Limited [2020] NSWSC 1558 (“Robson”) at [93], it only had to be a factor, a factor in a multifactorial analysis, and if you answer “yes” to both of those questions, then the decision in relation to causation is afflicted by legal error and the decision should be set aside. And in this case that ought to be the decision reached because it plainly forms part of the reasons, it is a direct answer to the question on causation that the assessor poses with specific reference to clause 1.7, which is the test of causation in the guidelines, and that the Medical Assessor intends to explain or bolster her findings on causation by reference to that impugned paragraph.

20. [53]

    Can the Court be satisfied that the impugned part of the reasons were not at least a factor in this decision making process? The Court should not feel comfortable in making that decision. It is certainly possible being the language of the High Court in Hossain that this was at least a factor and the relief sought by the plaintiff should be granted.

21. [54]

    The insurer submitted that the errors alleged by the plaintiff are based on the plaintiff’s misunderstanding of the Medical Assessor’s reasons.

22. [55]

    The plaintiff’s argument is that the primary basis for (or “determinative factor’’ in) Medical Assessor’s decision, is her statement that having regard to the fact that the plaintiff engaged in strenuous travel and athletic activities, and had already suffered stress fractures in both feet, “it was only a matter of time before the pathology (in the left ankle) developed or occurred, whether she had had the accident or not.”

23. [56]

    Importantly, this statement by the Medical Assessor, did not actually deal with the cause of the plaintiff’s left ankle pathology at all. Read in context, all the Medical Assessor says is that the plaintiff would probably have had the same pathology sooner or later that she has now, regardless of the accident. The Medical Assessor did not state that the plaintiff’s travel and athletic activities caused the left ankle pathology she has now, ie. at the time of the Medical Assessor’s assessment, although they may have done so.

24. [57]

    The plaintiff reads the next paragraph of the Medical Assessor’s reasons, as basing her conclusion that no injury to the left ankle was caused by the accident on 26 May 2012 on the stress fractures and travel and athletic activities to which Dr Harvey-Sutton referred in the previous paragraph. However, what the Medical Assessor stated was:

25. [58]

    This final paragraph in which she states her conclusion provides three bases for her finding that no injury to the left ankle was caused by the accident. They are:

    1. (1)

       Dr Harvey-Sutton’s enquiries in relation to the accident, ie. the mechanism of the accident;

    2. (2)

       The subsequent chronology, ie. the plaintiff did not seek medical attention for left ankle pain until 4 June 2012, nine days after the accident;

    3. (3)

       The documents provided by the parties to the Medical Assessor’s for assessment of the impairment dispute.

26. [59]

    The Medical Assessor’s reasons set out a number of facts, and matters of clinical judgment, that led to her conclusion on causation of the plaintiff’s ankle pathology, and which excluded the motor accident as a cause.

27. [60]

    One basis for this conclusion is that in the Medical Assessor’s opinion, the plaintiff would not have been able to get out of her car or walk or sit on a wall with weight on her left foot if she had suffered a significant injury to her left ankle.

28. [61]

    In the Medical Assessor’s opinion, neither the mechanism of the accident, nor a “jarring” of the left foot on the footpad, were capable of causing the condition for which Dr Lam performed surgery; and there would not have been a delay in the onset of intense pain in the left ankle if that condition was caused by the motor accident. Nor would the plaintiff have omitted to mention left ankle pain to Dr Humphrey on the day of the accident.

29. [62]

    The Medical Assessor further noted that on 5 October 2012, the plaintiff told Dr Bell (four months after the accident) that the pain in her left ankle and foot had gradually increased over a period of months after the accident, particularly when walking. In the Medical Assessor’s opinion that history, too, was not consistent with the accident having caused the condition for which Dr Lam performed surgery.

30. [63]

    It was the matters set out in the last four paragraphs of her decision that led the Medical Assessor to conclude that the plaintiff did not injure her left ankle in the accident on 26 May 2012.

31. [64]

    Having carefully explained why the mechanism of the accident, and the plaintiff’s actions subsequent to the accident, negated any causal link between the accident and the pathology later identified in the plaintiff’s left ankle, the Medical Assessor chose to provide an alternative explanation for that pathology. It was certainly open to the Medical Assessor to do so, although this is not required as part of her statutory task.

32. [65]

    Therefore, the Medical Assessor provided clear and cogent reasons for her opinion that the accident did not cause any injury to the Plaintiff’s left ankle or left foot. That completed the Medical Assessor’s statutory task, so far as assessment of the alleged injury to the left ankle was concerned.

33. [66]

    The Medical Assessor noted that Dr John Cummine, an orthopaedic specialist, was of the same opinion in his report dated 16 August 2019, having received the same history.

34. [67]

    The insurer submitted that it is wrong to assert, as the plaintiff has done, that the Medical Assessor concluded that the pathology in the plaintiff’s left ankle was “inevitable” and to “leap” to the conclusion that the motor accident was therefore no part of the cause of that pathology.

35. [68]

    To the contrary, the Medical Assessor’s process of reasoning was to first consider the accident itself, its aftermath, and the early history of medical treatment, and to conclude that all of these events from the time of the accident were completely inconsistent with the plaintiff having suffered an injury to her left ankle. That was an exercise of the Medical Assessor’s clinical judgment.

36. [69]

    It was only once the Medical Assessor had determined that the accident could not be responsible for the plaintiff’s left ankle pathology, that the Medical Assessor explained that the pathology was probably a consequence of the plaintiff’s strenuous travel and athletic activities. Just how strenuous those activities were was confirmed by the fact that the plaintiff had suffered stress fractures in both feet.

37. [70]

    When understood in this way, the errors asserted by the plaintiff in the amended summons and in her submissions fall away. There is no error in the reasoning process of the Medical Assessor. The path of reasoning is clearly exposed.

38. [71]

    In oral submissions, counsel for the insurer submitted that Dr Harvey‑Sutton’s reference to the “test” in the guidelines for causation was unnecessary to her reasons, was not a factor in her reasons and, if it did anything at all, was simply a confirmation of the conclusion that she had already reached. The insurer accepted that the Medical Assessor did not have the evidence to make the statements she did about this injury would have beset the plaintiff at some time in the future in any event. That is probably the Medical Assessor’s clinical experience but it is not a medical explanation that follows as night follows day. It was, as I put it earlier, nothing other than her “musing” as to how the plaintiff could have come to this state given the conclusion the Medical Assessor had already reached and expressed.

39. [72]

    She had explained in nine consecutive paragraphs what the factors were and they are all unimpeachable because they are expressions of her clinical judgment, clinical opinion, and where she has relied on facts, the facts are accurate.

40. [73]

    So her path of reasoning is complete at the end of the paragraph beginning “Furthermore”, and she summarises the previous nine paragraphs in the paragraph, “Based on my enquiries” and that is a ten paragraph set which completely and conclusively establishes and justifies and exposes her path of reasoning on the question of causation in a manner that is unimpeachable.

41. [74]

    I have earlier referred to Wingfoot, Sadsad, Francica and Sleiman as to what constitutes adequate reasons of a Medical Assessor.

42. [75]

    I also accept that reasons of administrative decision-makers are not to be considered with “an eye minutely and keenly attuned to error” but are to be read beneficially and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272).

43. [76]

    The Medical Assessor set out the correct Guidelines as to causation in relation to the injury to the plaintiff’s left ankle. Where there was no pre-accident injury or impairment in the left ankle, one available conclusion was that the ankle impairment was caused by the accident. It is fair to say that there were medico legal reports that both supported the plaintiff’s case and the insurer’s case on causation. Dr John Cummine in his report dated 18 August 2019 opined that:

44. [77]

    These findings accord with those of the medical assessor. However, he does not go further and proffer an alternative cause as an explanation for the plaintiff’s injury to her left ankle.

45. [78]

    Hence, there was more than one conclusion open to the Medical Assessor on the issue of causation. The Medical Assessor agreed that the left ankle causation was the key battleground between the parties.

46. [79]

    In reaching her decision the Medical Assessor took into account the accident itself, its aftermath and the early history of medical treatment, and concluded these events from the time of the accident were inconsistent with the plaintiff having suffered an injury to her left ankle. Under the heading “Conclusion – Diagnosis and Causation” the Medical Assessor concluded that based on her enquires in relation to the accident and subsequent chronology and the documentation outlined above, the injury to her left ankle was not caused by this accident because the accident was not a more than a negligible contributing cause of her condition.

47. [80]

    In the penultimate paragraph before reaching her ultimate conclusion, the Medical Assessor provided an alternative explanation for the pathology in the plaintiff left ankle when she said “I note that the plaintiff had stress fractures in her feet in the past from walking as a tourist also and the multiple events the plaintiff competed in within a short period of time prior to the motor vehicle accident, and considered that it was only a matter of time before the pathology described above, developed or occurred, whether the plaintiff had had the accident or not” (the alternate cause).

48. [81]

    While the insurer submitted that the alternate cause was a “musing” and did not form part of the Medical Assessor’s reasoning process in reaching her decision on causation, I cannot be satisfied that the alternate cause was not at least a factor in her decision making process on causation. The Medical Assessor has not provided any cogent explanations as to why she favoured the “alternate cause” over the medical view that the injury to the left ankle was caused by the accident. It is my view that the Medical Assessor failed to provide lawful reasons for her conclusions as to causation in relation to the plaintiff’s left ankle.

Judicial review ground 2 – No evidentiary basis for decision

1. [82]

   The plaintiff submitted that there was no evidentiary basis available to the Medical Assessor to make the conclusion that it was “only a matter of time” before the left ankle injury occurred, even if the accident had not happened.

2. [83]

   The plaintiff referred to IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105, where Hall J stated at [15]:

3. [84]

   Similarly, in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517, it was accepted that the question was not whether there was literally no evidence to support the finding of fact but whether there was more than a mere scintilla of evidence favouring such a finding. Kirby J (in dissent) emphasized (at [560]) that:

4. [85]

   His Honour further stated at [16]:

5. [86]

   In Gordian Runoff Limited v Ozurumba [2020] NSWSC 774 (“Ozurumba”), Fagan J stated at [34]:

6. [87]

   Having regard to the decision of Fagan J in Ozurumba, it may be that the plaintiff’s first ground of review becomes subsidiary, on the basis that there was no evidence for the finding for which inadequate reasons have been given. In the present case, as in Ozurumba, there was no evidence to sustain the factual conclusion upon which the Medical Assessor made her determination that “it was only a matter of time” before the left ankle injury occurred.

7. [88]

   The only supporting basis for this finding was the plaintiff’s pre-accident stress fractures to her feet, and the fact she had competed in multiple events shortly prior to the accident. These do not provide any evidentiary basis for an injury to the ankle being inevitable prior to the motor accident.

8. [89]

   For the reasons set out in relation to Ground 1, Ground 2 is misconceived.

9. [90]

   The plaintiff asserted that there was no “evidentiary basis” on which the Medical Assessor could conclude that it was “only a matter of time” before the plaintiff developed pathology in her left ankle, even if the accident on 26 May 2012 had not occurred.

10. [91]

    The Medical Assessor’s statement that in light of the plaintiff’s history of strenuous travel and athletic activities, it was only a matter of time before she developed pathology in her ankle(s), had nothing to do with the Medical Assessor’s conclusion that the left ankle was not injured in the motor accident on 26 May 2012.

11. [92]

    The Medical Assessor may be right or wrong in her opinion that even if the accident had not occurred, the plaintiff’s travel and athletic activities would probably have led to the development of ankle pathology. It may be the Medical Assessor’s opinion that these activities explain the pathology identified in the plaintiff’s left ankle. But for the reasons set out above, that was no part of Medical Assessor’s reasons for excluding the accident in May 2012 as a cause of the plaintiff’s ankle pathology.

12. [93]

    No doubt, the Medical Assessor’s belief that the plaintiff’s strenuous travel and athletic activities would probably lead to ankle pathology sooner or later, was based on her many years of clinical experience. But given that this was not a factor, much less a “material and determinative” factor, in excluding the motor accident as a cause of the plaintiff’s ankle pathology, it simply does not matter whether the Medical Assessor’s belief is right or wrong, nor does it matter whether there was any “evidentiary basis” for that belief (or whether an “evidentiary basis” is required for a statement based on a medical assessor’s clinical experience).

13. [94]

    In oral submissions, the insurer submitted that the penultimate paragraph of the Medical Assessor’s reasoning was nothing other than “a musing” as to how the plaintiff could have come to this state given the conclusion she had already reached and expressed (T25.18-20).

14. [95]

    The Medical Assessor had explained in nine consecutive paragraphs what the factors were and they are all unimpeachable because they are expressions of her clinical judgment, clinical opinion, and where she has relied on facts, the facts are accurate.

15. [96]

    While I accept that a Medical Assessor is entitled to reach her own conclusion as to causation, it has to be based upon some medical evidence that was relied upon by the parties. There was no medical evidence relied upon by the parties of a pre-existing injury or pre-existing problems in the plaintiff’s left ankle, nor was there evidence that such an injury was impending or would have occurred without the intervening accident. If the Medical Assessor had an alternate cause in mind, she could have sought submissions from the parties. The medical assessor erred in law in finding that an injury would have occurred when there was no evidence to support it. In so doing the Medical Assessor erred in law by reaching her decision based on no evidence. Judicial review grounds 1 and 2 are upheld.

16. [97]

    The result is that the decision of the Medical Assessor dated 16 December 2019 is set aside.

The proper officer’s decision and combined certificate – 10 August 2020

1. [98]

   The combined certificate dated 10 August 2020 and the Proper Officer’s decision dated 3 November 2020 were made after the Medical Assessors decision and certificate dated 16 December 2019.

2. [99]

   It was also agreed by the parties that if the Medical Assessor’s decision was quashed the Proper Officer’s decision dismissing the plaintiff’s application for review must also be quashed because it relies upon the validity of the Medical Assessor’s decision.

3. [100]

   The second decision is a combined certificate that is issued because there was more than one assessment. The parties agree that if the Medical Assessor’s decision is quashed, the combined certificate would either fall of its own accord or preferably would be quashed as a matter of formality. Hence, I quash the decision of the fourth defendant in her capacity as a Medical Assessor of SIRA dated 10 August 2020.

Costs

1. [101]

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