Adam Briggs v IAG Limited t/as NRMA Insurance

1. [1]

   This is a judicial review of a medical assessor’s review panel of the Personal Injury Commission. The proceedings between the parties in the Personal Injury Commission and the Supreme Court of New South Wales have quite a history. This judicial review is the third one.

2. [2]

   By summons filed on 10 August 2023, the plaintiff seeks orders quashing the decision of a medical assessor’s review panel (‘the review panel’) dated 12 May 2023 (‘the decision’). By summons filed 10 August, 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 [the third] Review Panel[‘s] Certificate dated 12 May 2023 made purportedly pursuant to sections 7.23 and 7.26 of the Motor Accidents Injuries Act 2017 (NSW) (‘the Act’) (‘the review panel decision’).

   2. (2)

      An order in the nature of mandamus remitting the matters the subject of the review panel decision and the [third] Review Panel Certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel for determination of the matter according to law.

3. [3]

   The plaintiff is Adam Briggs. The first defendant is IAG Limited t/as NRMA Insurance. The second defendant is Geoffrey Stubbs, Shane Moloney and Michael Couch as a review panel, constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW). The third defendant is the President of the Personal Injury Commission of New South Wales. At the judicial review, the plaintiff is represented by D. Hooke SC and J. Gumbert of counsel. All of the defendants have filed a submitting appearance.

4. [4]

   While there is no contradictor, nevertheless, this Court has an obligation to satisfy itself as to whether these grounds of review constitute errors of law on the face of the record or jurisdictional errors.

5. [5]

   The plaintiff relies upon the affidavit of Scott Hall-Johnston sworn on 19 October 2023 (‘SHJ’), which contains the decision under review and the documents that were before the third review panel at the time of making the decision.

6. [6]

   These proceedings arise from a claim by the plaintiff (‘the claimant below’) for damages under the Act for injuries caused by a motor vehicle accident on 22 May 2018.

7. [7]

   There was a dispute between the plaintiff and the insurer as to whether the plaintiff’s injury was a “threshold injury” (previously called “minor injury”) in accordance with s 1.6 of the Act.

8. [8]

   Pursuant to s 1.6(2) of the Act, an injury that includes “complete or partial rupture of tendons, ligaments, menisci or cartilage” is not a “threshold injury”. The dispute as to whether the claimant’s injury was a “threshold injury”, was a “medical assessment matter” pursuant to ss 7.1 and 7.17 of the Act.

9. [9]

   The plaintiff was assessed by Medical Assessor Carr, who issued a certificate of reasons dated 14 December 2018 certifying that the plaintiff’s injury was a minor injury for purposes of the Act (SHJ-365).

10. [10]

    The plaintiff lodged an application for review of Assessor Carr’s decision pursuant to s 7.26 of the Act on the grounds that, relevantly, the assessor had mischaracterised the plaintiff’s lumbar spine disc injury as a “bulge” rather than an annular tear (SHJ-375). The insurer lodged a reply to the plaintiff’s application (SHJ-381). The matter came before a review panel in accordance with s 7.26 of the Act. The review panel proceeded to determine the matter without re-examining the claimant.

11. [11]

    In the decision of the review panel dated 7 November 2019 (SHJ-402) (‘the first review panel decision’), the review panel decided that the claimant did in fact suffer an annular tear at L4/5, but that the tear was not causally related to the subject accident (SHJ-407). Consequently, the review panel concluded that the injuries sustained by the claimant in the subject accident were minor injuries for the purposes of the Act.

12. [12]

    In the first judicial review, the plaintiff sought judicial review of the first review panel decision (‘Briggs (No. 1)’). On 29 September 2020, I quashed the first review panel decision on the grounds that the plaintiff had been denied procedural fairness when the review panel relied on medical studies without notice to the parties [1] (SHJ-413). The matter was remitted to the Personal Injury Commission to be dealt with according to law.

13. [13]

    On 20 February 2021, the matter was then allocated to a newly constituted review panel (‘the second review panel’). The second review panel determined that a re-examination of the plaintiff was not required, and proceeded to determine the matter on the papers.

14. [14]

    On 20 February 2021, the second review panel issued a decision on 20 February 2021, where it determined that the plaintiff's injuries were "minor injur[ies]", for the purposes of the Act (SHJ-461) (‘the second review panel decision’).

15. [15]

    The plaintiff sought a second judicial review in relation to the decision of the second review panel (‘Briggs (No. 2)’). On 31 March 2022, Wright J quashed the second review panel decision by consent on the bases that the second review panel had failed to conduct the assessment afresh and failed to apply the correct test of causation [2] (SHJ-470).

16. [16]

    Again, the matter was allocated to a newly constituted review panel (‘the third review panel’ or ‘the second defendant’). It is the decision of the third review panel that is the subject of this third judicial review.

17. [17]

    The plaintiff seeks relief from the whole of the third review panel’s decision pursuant to s 69 of the Supreme Court Act 1970 (NSW).

18. [18]

    Section 7.17 of the Act relevantly reads:

19. [19]

    The certificate issued by a medical assessor or medical assessors is conclusive evidence in relation to any matter certified. [3]

20. [20]

    A review panel must conduct its assessment afresh. [4]

21. [21]

    A threshold (previously minor) injury is defined in section 1.6 of the Act, which reads:

The plaintiff’s contentions

1. [22]

   In these proceedings, the plaintiff contends that the errors identified in the grounds in the Summons constitute:

2. [23]

   All that is required for the plaintiff to establish his case, and so to enliven the Court's power to issue remedies, is for the Court to find an error of law on the face of the record (the “record” includes the written reasons - see, s 69(3) & (4) of the Supreme Court Act 1970). Errors of law on the face of the record need not be errors going to jurisdiction. [5]

3. [24]

   In Pham v NRMA Insurance Ltd (2014) 66 MVR 152 at [27] it was held (per Leeming JA, Tobias AJA agreeing) that under the Motor Accidents Compensation Act 1999 (NSW) (‘MACA’) both a claims assessor’s certificate and reasons form part of the record, by reason of the statute requiring reasons to be given. In Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786, Adamson J held (at [44]) that same principle applies to medical assessors’ decisions in the scheme. [6]

4. [25]

   As to the issue of jurisdictional error, the plaintiff says that the errors result in a constructive failure to exercise jurisdiction.

5. [26]

   The Court of Appeal in Rodger v De Gelder (2015) 71 MVR 514 said at [95] (per Gleeson JA, Macfarlan and Leeming JJA agreeing):

6. [27]

   The question here is whether there is relevant error of law on the face of the record or jurisdictional error established that warrants quashing the decision.

7. [28]

   The decision of the third review panel dated 12 May 2023. On 7 December 2022, the plaintiff was examined by two members of the third appeal panel.

8. [29]

   The third review panel then stated at [19]:

9. [30]

   At [25] and [26], the third review panel in relation to the cervical and lumbar spine stated:

10. [31]

    The third review panel correctly recorded that this is a complicated dispute. Of significance in all of the review, what was in dispute was firstly the Assessor’s consideration of the lumbar spine, particularly the significance of the annual tear reported on imaging and whether this constituted “a complete or partial rupture of tendons, ligaments, menisci or cartilage. If it did, then the injury would not be minor, now the “threshold” under the Act.

11. [32]

    Judicial ground 1: In relation to the finding as to the causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In particular, the third defendant failed:

12. [33]

    The third review panel was required to assess causation of injury as required by the guidelines and the common law.

13. [34]

    The guidelines are made pursuant to section 10.2 of the Act. Section 1.6(5) provides that “the Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act.” Part 5 of the guidelines contains the provisions for assessment of threshold injury disputes. Clause 5.6 provides:

14. [35]

    Clauses 6.5 – 6.7 of the guidelines set out the principles relating to assessment of causation of injury, that medical assessors must apply. Although the clauses are contained in the part of the guidelines dealing with assessment of permanent impairment, Wright J held in Briggs (No. 2) that there was “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” (at [35]). The clauses provide:

15. [36]

    In Briggs (No. 2), Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]:

16. [37]

    The third review panel went on to note that the high Intensity zone (‘HIZ’) is commonly seen in MRI studies including in people who do not have back pain (SHJ-528). Further, “HIZ are also seen in people with acute onset low back pain on MRl's performed within the first 36 hours of back pain onset” (SHJ-529). However, the review panel concluded “that the HIZ must predate the onset of the back pain” (SHJ-529). This last finding is the basis for judicial review ground 4.

17. [38]

    The third review panel then concluded that “HIZ therefore have very limited utility in the management of back pain. They do not predict surgical outcomes. They do not indicate that an injury has occurred. They do not give any useful guide as to what the management should be. In practice we can only confidently determine the cause of back pain in about 15% of sufferers.”

18. [39]

    The third review panel’s decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused.

19. [40]

    The third review panel concluded that the plaintiff sustained a soft tissue injury to the lumbar spine in the accident, but did not sustain the injuries referred for assessment, being “L4/5 disc bulge - incidental radiological finding, and Annular fissure/tear- incidental radiological findings” (at SHJ-529]).

20. [41]

    In conducting its assessment, the third review panel failed to consider all of the evidence referred to by Wright J in the above passage from Briggs (No. 2). In particular, the review panel failed to consider any of the following matters that Wright J had identified as being necessary considerations in this particular case:

21. [42]

    The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines, and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make “a non-medical informed judgement” as to whether it was likely that the motor accident caused or contributed to the plaintiff’s injury.

22. [43]

    In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities.

23. [44]

    In Briggs (No. 2), Wright J said at [69] – [73]:

24. [45]

    I agree with the plaintiff’s submissions that explain why the third review panel did not correctly address the issue of causation. This constitutes a constructive failure to exercise jurisdiction.

25. [46]

    I disagree with the plaintiff that the third review panel failed to address all of the matter identified by Wright J in Briggs (No. 2), as necessary considerations. It did consider the relevant medical history at the time of the accident and that there was no prior history of prior back complaints.

Judicial ground 2

1. [47]

   The third review panel relied on the Motor Accident Guidelines (Permanent Impairment Guidelines - incorrectly referred to by the panel as the "PIG") to support a finding that the plaintiff's injury was a threshold injury. In so relying on those guidelines, the third review panel fell into error as follows:

2. [48]

   The third review panel relied on the Motor Accident Guidelines (incorrectly referred to by the panel as the “PIG” – Permanent Impairment Guidelines) to support a finding that the plaintiff’s injury was a threshold injury (SHJ-527):

3. [49]

   The part of the guidelines relied upon by the panel appears to be clause 6.121, which states:

4. [50]

   Although some parts of the guidelines apply universally to different kinds of medical assessments (as set out by Wright J in Briggs (No. 2) regarding causation principles) there are some parts that are specific to one type of assessment. Clause 6.121 is one such clause, given that it refers to “DRE category”, which is a concept that appears only in the part of the guidelines dealing with assessment of permanent impairment (for the purpose of classifying different types of injury into permanent impairment categories), and does not have relevance to minor injury disputes.

5. [51]

   Given that DRE categories are not relevant to threshold injury disputes, cl 6.121 was not relevant to the review panel’s determination.

6. [52]

   In relying on that clause in its determination, the review panel had regard to irrelevant considerations, which is jurisdictional error. [7]

7. [53]

   In the alternative, if cl 6.121 was relevant, the review panel failed to explain why it was relevant, and in doing so failed to expose its actual path of reasoning, which is an error of law on the face of the record. [8]

8. [54]

   The third review panel relied on the part of cl 6.121 that provides, “In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category”. The review panel found that this operated as a “caveat” against finding a causal connection between the accident and the claimed injury (as extracted above).

9. [55]

   In making this finding, the third review panel failed to have regard to cll 6.6 and 6.7 of the guidelines (i.e, made an error in its approach to causation as identified in Ground 1).

10. [56]

    The panel also failed to have regard to cl 6.120 of the Guidelines which provides:

11. [57]

    The review panel thereby misapplied the relevant guidelines by finding that the imaging result could not establish a causal connection, instead of applying the correct test, which was that it was necessary to base the assessment on all of the evidence, rather than solely on the imaging results. This was jurisdictional error.

12. [58]

    I agree with the plaintiff’s submissions that the third review panel applied the wrong guideline that refers to DRE categories. The correct guidelines were clauses 6.6. and 6.7.

13. [59]

    The plaintiff also refers to guideline clause 6.120. The same subject matter (although not that guideline) was referred to in Judicial Ground 1. The third review has made jurisdictional errors.

Judicial Ground 3

1. [60]

   Judicial ground 3 is that the third review panel purported to redefine or otherwise alter the nature of the claimed injury, without notice to the parties, and without giving the parties an opportunity to be heard. This was a denial of procedural fairness, and thus jurisdictional error.

2. [61]

   The review panel concluded (SHJ-530):

3. [62]

   The failure to give the parties notice of the intention to redefine or alter the nature of the claimed injury denied the parties an opportunity to be heard in relation to the new injury determined by the panel, and in doing so failed to afford procedural fairness. This is the same kind of error committed by the first review panel and dealt with in Briggs (No. 1) at [37] – [43].

4. [63]

   I agree with the plaintiff’s submissions that the third review panel determined a new injury.

Judicial appeal ground 4

1. [64]

   Judicial ground 4 is that the third review panel purported to conduct a meta-analysis of a number of unidentified scientific studies, which were selectively chosen by the review panel, without notice to the parties and without giving the parties an opportunity to be heard. This was a denial of procedural fairness.

2. [65]

   The third review panel stated, “The literature is large and of uneven quality, it is possible to cherry-pick references to support any particular prejudice. Only the peer-reviewed literature is considered” (SHJ-528).

3. [66]

   Having self-professed to be cherry-picking the studies it would rely on, the appeal panel then said (SHJ-529):

4. [67]

   The conclusion that the high intensity changes seen on MRI scans of patients soon after onset of pain in the lumbar spine must predate the onset of the back pain, is apparently relied on by the review panel to support its finding that the plaintiff’s HIZ must have pre-dated the accident.

5. [68]

   There have been a number of cases (including Briggs (No. 1)) where it has been held that a review panel has denied procedural fairness to the parties by relying on scientific studies, without notice. [9]

6. [69]

   In Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457; 98 MVR 77, I held that there was no error in a review panel referring to “many studies” without naming the studies, as it would be accepted as basic medical knowledge (at [126]). However, in that case the reference to the studies was in a single sentence, and it was held that the studies were not a critical factor in the review panel’s determination in any event (at [127]).

7. [70]

   The situation is very different in the present matter, where the studies were clearly the critical determinative factor, dealt with in detail over many pages, and there was plainly substantial practical injustice occasioned as a result. [10] The fact that the studies are not named does not detract from the denial of procedural fairness in this case, especially where the third review panel acknowledges having been selective in its choice of references.

8. [71]

   The conclusion reached by the panel, based on its cherry-picked meta-analysis of a number of unidentified scientific studies, was done without notice to the parties and without giving the parties an opportunity to be heard. This was a denial of procedural fairness, as set out in Ground 3 above, and in Briggs (No. 1) and the cases that have subsequently applied the same principles regarding failure to give parties an opportunity to be heard before scientific studies are relied upon as a foundation for decision making.

9. [72]

   I have carefully read and considered the plaintiff’s submissions. Having been the judicial officer who decided (Briggs (No. 1)). I have some familiarity with the subject matter.

10. [73]

    I accept that the third review panel referred to unnamed peer reviewed articles. They are not articles which only deal with common medical knowledge, but rather specific scientific knowledge. In these circumstances, parties should have been afforded procedural fairness by referring them to the peer reviewed articles, it had relied upon and asked them for comments on them.

Conclusion

1. [74]

   I have carefully considered and analysed the plaintiff’s submissions. I agree with them. Judicial grounds 1, 2 and 4 grounds of the judicial review are made out.

2. [75]

   I have added my additional reasoning. In relation to causation, I accept that the review panel’s decision depends, to a large extent on the medical practitioner’s experience, knowledge and clinical experience, but in reaching its opinion it has to also comply with its statutory duties and the guidelines. In Briggs (No. 2), Wright J set out what these requirements were. It appears that the Review Panel after stating it cannot make a finding about the radiological finding, moved on to discuss the significance of the bright signal seen on the T2 weighted image described as an annular tear by the radiologist. The review panel relied on analysing the peer review literature that was not identified, but should have been to determine that the annular fissure pre-dated the accident. This was said by Wright J in Briggs (No. 2) at [71]—[72], set out earlier in this judgment.

3. [76]

   There have been errors of law on the face of the record and jurisdictional errors. The decision of the review panel dated 12 May 2023 is set aside.

4. [77]

   The matter is remitted to the Personal Injury Commission to be dealt with according to law. While I rarely make any recommendations, here I recommend that the matter be remitted to a differently constituted Review Panel.

5. [78]

   Costs are discretionary. As the plaintiff’s application was unopposed, I reserve costs.

   1. (1)

      The third review panel made errors of law on the face of the record and jurisdictional errors.

   2. (2)

      The decision of the review panel dated 12 May 2023 is set aside.

   3. (3)

      The matter is remitted to the Personal Injury Commission to be dealt with according to law. It is recommended that the matter be remitted to a differently constituted Review Panel.

   4. (4)

      Costs are reserved.