Briggs v IAG Limited t/a NRMA Insurance

1. [1]

   By a summons filed on 20 May 2021, the plaintiff, Mr Briggs, sought judicial review of the decision made on 20 February 2021 by the third defendants, namely the three medical assessors comprising the review panel, constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (MAI Act) by the President of the Personal Injury Commission of New South Wales (PIC), the second defendant.

2. [2]

   The decision of which Mr Briggs sought judicial review related to his claim for damages and benefits arising out of injuries he allegedly suffered as a result of a motor vehicle accident that occurred on 22 May 2018 at Turramurra in New South Wales. The first defendant, IAG Limited trading as NRMA Insurance, was the compulsory third party insurer in respect of the vehicle at fault in that accident. NRMA accepted liability to pay statutory benefits under the MAI Act for up to 26 weeks from the date of the accident but not thereafter on the basis that any injury suffered by Mr Briggs as a result of the motor vehicle accident was a “minor injury”, as defined in s 1.6 of the MAI Act and cl 4 of the Motor Accident Injuries Regulation 2017 (NSW) (MAI Reg).

3. [3]

   On 23 June 2021, NRMA filed a response to the summons setting out the basis on which it opposed the plaintiff’s application for judicial review.

4. [4]

   On 29 June 2021, with the consent of all the defendants, the plaintiff filed an amended summons which correctly identified the second defendant as the President of the PIC. Apart from that change, the relief sought in the amended summons was the same as that sought in the original summons. The relevant prayers for relief are set out below at [28] of this decision. On the same day, the second and third defendants entered submitting appearances, save as to costs.

5. [5]

   Despite its initial response opposing the plaintiff’s application for judicial review, on 13 September 2021 NRMA filed a submitting appearance which stated:

6. [6]

   Thus, although initially there was a contradictor, by the time the matter came on for hearing on 18 February 2022, there was no opposition to the orders sought being made.

7. [7]

   In the circumstances, it appeared to me that the interests of justice required me to consider the plaintiff’s application in light of the evidence adduced and to take into account the absence of an active contradictor at the hearing when determining whether or not to grant any relief.

Background

1. [8]

   The plaintiff claimed that, as a result of the accident on 22 May 2018, he suffered injuries to his right leg, his cervical spine and his lumbar spine, including an annular tear of the L4/5 disc, among others.

2. [9]

   If a claimant’s only injuries resulting from a motor accident are “minor injuries” within the meaning of that expression in the MAI Act, there is no entitlement to damages, by virtue of s 4.4, and the entitlement to statutory benefits ceases after 26 weeks, by operation of s 3.28 of that Act.

3. [10]

   There was a dispute between the plaintiff and NRMA as to whether the injuries suffered as a result of the accident were “minor injuries”. “Minor injury” is defined in s 1.6 of the MAI Act, which provides relevantly for present purposes:

4. [11]

   Clause 4(1) of the MAI Reg provides:

5. [12]

   As a result of the last clause of s 1.6(2), if there is a complete or partial rupture of ligaments or cartilage, the injury will not be a “minor injury”. From p 6 of the review panel’s certificate and reasons dated 2 February 2021, it appears that the core matrix relating to a vertebral disc is cartilage and the annulus is a ligament.

6. [13]

   The dispute about whether the plaintiff’s injuries which he alleged were suffered as a result of the accident were minor injuries gave rise to a “medical assessment matter” within the meaning of s 7.1(1) of the MAI Act, by virtue of cl 2(e) of Sch 2, which establishes that the question of “whether the injury caused by the motor accident is a minor injury for the purposes of the [MAI] Act” is a medical assessment matter.

7. [14]

   As a result of there being a dispute about a medical assessment matter, the plaintiff was assessed by a medical assessor in accordance with s 7.20 of the MAI Act.

8. [15]

   On 14 December 2018, Medical Assessor Carr gave a certificate, under s 7.23(1), in the following terms:

9. [16]

   Medical Assessor Carr’s reasons included the following:

10. [17]

    Mr Briggs applied, under s 7.26(1) of the MAI Act, for the medical assessment to be referred to a review panel for review and this was done.

11. [18]

    This first review panel proceeded to determine the matter without re-examining the plaintiff. On 7 November 2019, it revoked the previous certificate and issued a new certificate together with reasons. The certification was as follows:

12. [19]

    In their reasons, the review panel said that they noted and confirmed the findings of the MRI scan of the plaintiff’s lumbar spine dated 14 August 2018 including:

13. [20]

    In relation to the L4/5 annular tear, after considering a number of articles including one referred to as the “Spine Journal” article and other matters, the first review panel concluded as follows:

14. [21]

    Mr Briggs sought judicial review of the first review panel’s decision and was ultimately successful, with Harrison AsJ setting aside that decision on 29 September 2020: Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318; 94 MVR 127. In those proceedings, Harrison AsJ made orders as follows:

15. [22]

    Her Honour’s reasons for making those orders are set out in her judgment referred to above. Mr Briggs’s grounds of review in those proceedings were that the review panel erred in the following respects:

    1. (1)

       by denying the plaintiff procedural fairness, in that it did not give him notice of its intention to rely on the Spine Journal article;

    2. (2)

       by failing to apply the correct principles of causation to the plaintiff’s injury; and

    3. (3)

       by failing to give proper and lawful reasons for its decision, in breach of s 7.23(7) of the MAI Act.

16. [23]

    As to the first ground of review and after noting that the review panel had included significant portions of the Spine Journal article as part of its reasons without indication that they were quotations and without acknowledgement, Harrison AsJ held, at [60]:

17. [24]

    Her Honour did not uphold the second or third grounds of review.

18. [25]

    As a result of the orders of Harrison AsJ, the plaintiff’s review of the medical assessment of Assessor Carr was allocated to a differently constituted, second review panel, which comprised the third defendants in this case, in order to complete a fresh review according to law.

19. [26]

    The second review panel determined that a re-examination of the plaintiff was not required and proceeded to determine the matter on that basis.

20. [27]

    On 20 February 2021, the second review panel issued a certificate as follows:

Current judicial review application

1. [28]

   As noted above, on 20 May 2021, the plaintiff sought judicial review of the second review panel’s assessment as set out in the certificate of 20 February 2021. The relief sought was relevantly as follows:

2. [29]

   The plaintiff contended that the second review panel had made jurisdictional errors and/or errors of law on the face of the record and identified the specific grounds of review as follows:

3. [30]

   In order to consider these grounds, it is necessary first to identify the relevant statutory and other provisions relating to a review panel’s functions under the MAI Act and then to review the second review panel’s reasons.

Relevant statutory and other provisions

1. [31]

   The objects of the MAI Act are set out in s 1.3(2)(a)-(h) of the MAI Act and relevantly include the following:

2. [32]

   In undertaking a medical assessment review under the MAI Act, the second review panel was required to comply with s 7.26(6) of that Act which provides as follows:

3. [33]

   It was not in dispute that the Motor Accident Guidelines (Version 6 effective from 18 December 2020) (Guidelines) applied in relation to the second review panel’s review.

4. [34]

   Part 5 of the Guidelines dealt with assessing whether an injury was a minor injury and contained the following provisions:

5. [35]

   The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:

6. [36]

   In relation to the review of a medical assessment by a review panel, Part 7 of the Guidelines relevantly provided as follows:

The second review panel’s reasons

1. [37]

   The second review panel’s reasons for its certificate of 20 February 2021 were set out in the certificate, as required by s 7.23(7) of the MAI Act.

2. [38]

   The second review panel commenced its reasons with the following:

3. [39]

   There appear to be at least two errors in those paragraphs. First, it was not the case that the first review panel’s certificate of 7 November 2010 or its reasons were referred to the second review panel for determination. The decision contained in that certificate had been quashed. Secondly, Medical Assessor Carr did not certify what was set out in section 3 of the second review panel’s reasons. What Assessor Carr actually certified is set out above at [15] above.

4. [40]

   The second review panel then continued its reasons as follows:

5. [41]

   From section 4, it appeared that the second review panel proceeded on the mistaken basis that it was to review the first review panel’s assessment limited to the ground upheld by Harrison AsJ, namely that the first review panel had relied on a scientific journal article which had not been made available to the plaintiff in breach of the duty to accord procedural fairness.

6. [42]

   After identifying the documents considered and the relevant legislation and guidelines, the second review panel’s reasons then contained the following:

7. [43]

   The first and second dot points under the heading “Evidence Considered” indicated that, contrary to the second review panel’s statement that they “considered afresh all aspects of the assessment under review”, they understood their task to be to review the first review panel’s assessment having regard only to the ground upheld by Harrison AsJ in first judicial review application.

8. [44]

   The reasons of the second review panel then continued:

9. [45]

   The second review panel’s reasons then recorded their relevant deliberations as follows:

10. [46]

    There followed the second review panel’s understanding of what was revealed by various studies, obtained from the internet, to which they had regard, including the following propositions:

    1. (1)

       “A significant percentage of asymptomatic people had … circumferential annular tears”;

    2. (2)

       Autopsy studies indicated that annular tears “were more clearly described as splits in the annular ring structure of the disc” and are now called circumferential fissures or de-laminations;

    3. (3)

       When “provocative contrast discography” is used, “pain correlates more with advanced radial tears than circumferential fissures”;

    4. (4)

       “The cause of lumbar disc pathology and annular defects is not well understood and there are competing theories”;

    5. (5)

       Radial and circumferential fissures “may or may not be painful or symptomatic”;

    6. (6)

       “The observation of a circumferential annular fissure in a lumbar intervertebral disc cannot be interpreted as traumatic in origin even if the patient … records pain following a trauma, based on research findings”, which findings included that “[t]he researchers found no difference between the groups [those with ‘insidious onset pain’ and those with ‘trauma induced pain’] in disc pathology or concordant pain generation.” (underlining in original);

    7. (7)

       “The research and similar studies, tell us that disc disease can become painful, with or without a precipitating trauma” (underlining in original);

    8. (8)

       “the observation of annular disc pathology and circumferential fissures in particular cannot be interpreted as traumatic. This pathology or structural change is not a ‘tear’. It is a degenerative defect, split or delamination in the annular ring structure of the disc and can arise without any identified trauma” (underlining in original);

    9. (9)

       “These research findings lead to the conclusion that most traumatic injuries to the disc cannot be diagnosed with current technology”.

11. [47]

    On the basis of these propositions, the second review panel concluded:

12. [48]

    As to the material supplied by the plaintiff’s lawyers, the second review panel “was unpersuaded”. Nonetheless, the panel said that they had “no disagreement with the proposition that disc disease may be initiated and aggravated by trauma” and that “[t]rauma along with other factors are implicated”.

13. [49]

    The second appeal panel, then identified the issue they were required to address as being whether “the motor vehicle accident trauma [w]as a cause of a ‘left posterolateral annular tear’ with ‘mild disc desiccation’” (emphasis in original) and stated:

14. [50]

    After considering certain other injuries which are not relevant to the present proceedings, the second review panel concluded its reasons as follows:

15. [51]

    It can be noted that this determination was not given effect to by the second review panel’s certificate, which has been quoted above at [27] and which expressly confirmed the first review panel’s certificate dated 7 November 2019 and not the certificate issued by Assessor Carr on 14 December 2018.

16. [52]

    I now turn to consider the grounds of review relied upon by the plaintiff, noting that if the first or second, more specific grounds of review are upheld, it will not be necessary to consider the more general grounds of review.

Ground 1

1. [53]

   The first ground involved the contention that the second review panel failed to conduct its assessment afresh as required by s 7.26(6) and thereby failed to perform its statutory task and fell into jurisdictional error.

2. [54]

   By virtue of s 7.26(6) of the MAI Act, the second review panel’s review:

   1. (1)

      was not limited to a review of only that aspect of the assessment under review that was alleged to be incorrect; and

   2. (2)

      was to be by way of a new assessment of all the matters with which the medical assessment was concerned.

3. [55]

   One consequence of the terms of s 7.26(6) is that a review panel will fall into error if it limits its review to only that aspect of the assessment under review that was said to be incorrect. Another effect of s 7.26(6) is that, although styled a “review”, a review panel is actually determining afresh the medical assessment matters referred to it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] (Leeming JA, Beazley P and Basten JA agreeing) noting that s 63(3A) of the Motor Accidents Compensation Act 1999 (NSW) is in the same terms as s 7.26 of the MAI Act.

4. [56]

   An illustration of the correct approach to what a fresh assessment under s 7.26(6) might involve is found in Sydney Trains v Batshon [2021] NSWCA 143, where the Court of Appeal (Leeming JA, White and McCallum JJA agreeing) contrasted reviews under the motor accidents legislation with those under the workers’ compensation legislation and said, at [41]:

5. [57]

   This approach is also consistent with cll 5.6 and 7.279 of the Guidelines which establish that an assessment of whether an injury caused by the accident is a minor injury for the purposes of the MAI Act should be based on the evidence available and include all relevant findings derived from “a careful and thorough physical … examination” and a review is to be conducted using, among other things, “medical examinations as appropriate”.

6. [58]

   In this case, the medical assessment matter referred to Assessor Carr and, thus, to the second review panel was whether Mr Brigg’s injuries caused by the motor accident were minor injuries for the purposes of the MAI Act. The second review panel’s task was, therefore, to conduct a “new assessment” of that matter, including a re-examination of the plaintiff unless inappropriate. There was no suggestion that there had been any limitation of the scope of the review agreed between the parties for the purposes of cl 7.278 of the Guidelines.

7. [59]

   From the form of the second review panel’s certificate and sections 1, 4 and 8 of their reasons (relevant parts of which have been quoted above), it is clear that the second review panel proceeded on the mistaken basis that it was reviewing the assessment of the first review panel whose certificate had been quashed by Harrision AsJ and not Assessor Carr’s assessment, even if its reasons in section 9 and the certificate issued by the second review panel indicated a degree of confusion on the part of the panel as to what it actually decided. This was an error.

8. [60]

   This error led to a further error by the second review panel. An examination of Mr Briggs was not undertaken by the panel because:

9. [61]

   The remainder of the reasons also appeared to be based on this mistaken approach.

10. [62]

    The focus of the panel’s deliberations was almost entirely confined to consideration of studies and research papers it had discovered by conducting an internet search “seeking to obtain all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”. It was expressly noted by the second review panel that “[r]elevant references the Panel would rely upon in their deliberations were distributed to the parties”, presumably to correct the error of the first appeal panel which had been found by Harrison AsJ.

11. [63]

    Apart from the reference to the results of the MRI examination of Mr Briggs, very little if any of the second review panel’s reasoning related to any of the other information before it. As the panel itself observed, it proceeded “to re-examine the facts of the case and research the scientific literature for any further knowledge which might assist at reaching a valid decision”.

12. [64]

    Reading the second review panel’s reasons as a whole, fairly and not overly critically, in my view they show that the panel was limiting its review to that aspect of the quashed assessment by the first review panel that was found to involve error, namely reliance on studies of which the plaintiff was not made aware, rather than undertaking its own fresh and comprehensive assessment of the plaintiff’s medical assessment matter.

13. [65]

    Consequently, the second review panel’s approach was contrary to the requirements of s 7.26(6), especially when viewed in light of cll 5.6 and 7.279 of the Guidelines. The panel’s failure to re-examine the plaintiff for the purposes of the review or to address other material before the second review panel in the “Panel Deliberations” section or elsewhere in their reasons demonstrated that they proceeded on an erroneous understanding of their task.

14. [66]

    On these bases, I am of the view that the second review panel failed to conduct their assessment of the correct matter, and failed to conduct their assessment afresh as required by s 7.26(6) and thereby failed to perform their statutory task. As a result, the panel fell into jurisdictional error and the error was also an error of law on the face of the record. Therefore, the first ground of review has been made out.

Ground 2

1. [67]

   The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.

2. [68]

   As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:

   1. (1)

      “[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period”, and Mr Briggs only had post-accident MRI results;

   2. (2)

      “a delamination may not fall within the definition of a tear”; and

   3. (3)

      “the defect may not be the source of his pain and disability”.

3. [69]

   The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.

4. [70]

   This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):

5. [71]

   The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:

6. [72]

   Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].

7. [73]

   The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.

8. [74]

   The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:

9. [75]

   This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for “all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain”, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:

   1. (1)

      a comprehensive, accurate history, including pre-accident history and pre-existing conditions;

   2. (2)

      a review of all relevant records available at the assessment;

   3. (3)

      a comprehensive description of the injured person’s current symptoms;

   4. (4)

      a careful and thorough physical examination; and

   5. (5)

      diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

10. [76]

    In Mr Briggs’s case that would include, without attempting to be exhaustive:

    1. (1)

       Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;

    2. (2)

       the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and

    3. (3)

       Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.

11. [77]

    In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made “a non-medical informed judgement” as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.

12. [78]

    On a fair reading of the second review panel’s reasons, the panel failed to apply the correct test of causation in relation to Mr Briggs’s injury which had the consequence that the panel also failed to obtain or consider relevant material. The panel in effect asked itself the wrong question in this regard and failed to perform the statutory task required of it. Thus, the second review panel made a jurisdictional error and the error was also an error of law on the face of the record.

13. [79]

    For these reasons, ground 2 has been made out.

Grounds 3, 4 and 5

1. [80]

   Since grounds 1 and 2 have been made out, it is not necessary to consider grounds 3, 4 and 5.

2. [81]

   Nonetheless, it can be noted that, in substance, grounds 3 and 4 have been addressed as part of ground 2 where it was concluded that, inter alia, the second review panel failed to consider all of the material before it including:

   1. (1)

      what should have been taken into account by reason of cl 5.6 of the Guidelines; and

   2. (2)

      the “substantial and clearly articulated argument” advanced on behalf of the plaintiff in relation to causation and the material in support of that argument.

3. [82]

   Ground 5 involved a contention that there had been a failure to give adequate reasons as required by s 7.23(7) of the MAI Act. Since the second review panel’s certificate and reasons have disclosed the nature and extent of the panel’s reasoning by which it reached its conclusions sufficiently to allow the reasons to be considered properly for the purposes of the other grounds, I do not accept that any additional or independent ground of inadequacy of reasons has been made out.

Relief

1. [83]

   Since I have reached the conclusion that the second review panel’s certificate of 20 February 2021 was affected by jurisdictional error and error of law on the face of the record, the certificate is liable to be set aside. In deciding whether to grant such relief by way of an order in the nature of certiorari, under s 69 of the Supreme Court Act, the Court has a discretion: Navazi v New South Wales Land and Housing Corporation [2015] NSWCA 308 at [121] (Sackville AJA, Leeming JA and Adamson J agreeing) citing Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16 at [95] (McHugh J); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [33] (Gummow and Callinan JJ).

2. [84]

   No factors militating against granting relief were raised by the plaintiff. In the absence of an active contradictor at the hearing, I gave particular attention to whether there was any reason why the relief sought should not be granted in this case but I could discern none.

3. [85]

   Accordingly, in my view the third defendant’s decision as set out in the certificate of 20 February 2021 should be set aside. In this situation, it will be necessary for the second defendant to refer the plaintiff’s medical assessment to a review panel to consider the matter afresh in accordance with s 7.26(6) and other relevant provisions and principles of law. Consequently, it will be appropriate also to order that the plaintiff’s matter be remitted to the second defendant to be referred to a review panel to be dealt with according to law.

4. [86]

   In all the circumstances, it would also be preferrable for the review panel to which the plaintiff’s matter is to be referred for review, after remittal, should be constituted differently from both the first and second review panels.

Costs

1. [87]

   In light of the submitting appearances filed by all defendants in these proceedings, the plaintiff’s position at the hearing was that he did not seek any order as to costs.

Orders

1. [88]

   For the reasons set out above, the orders of the Court are:

   1. (1)

      The certificate of the third defendants dated 20 February 2021 is set aside.

   2. (2)

      The plaintiff’s review of the medical assessment of Assessor Carr which is the subject of the certificate dated 14 December 2018 is remitted to the second defendant to be referred, under s 7.26 of the Motor Accident Injuries Act 2017 (NSW), to a review panel to be dealt with according to law.

   3. (3)

      There is no order as to costs, to the intent that the parties are to pay their own costs.