Cornwall v Allianz Australia Insurance Limited

1. [1]

   HER HONOUR: This is a judicial review of a decision of the Proper Officer of the President of the Personal Injury Commission of New South Wales.

2. [2]

   The Proper Officer, Tami O’Carroll (“the Proper Officer”) made a decision under s 62 of the Motor Accidents Compensation Act 1999 (NSW) (“MAC Act”) dismissing the plaintiff’s application for a further medical assessment referral.

3. [3]

   By amended summons filed 28 May 2021, the plaintiff relevantly seeks:

   1. (1)

      An order that plaintiff’s application for further medical assessment be referred to a medical assessor for assessment under the MAC Act;

   2. (2)

      In the alternative, that the plaintiff’s application for further assessment be remitted to the Proper Officer of the President of the President of the Personal Injury Commission for determination according to law.

4. [4]

   The plaintiff is David Cornwall. The first defendant is Allianz Australia Insurance Limited (“the insurer”). The second defendant is the President of the Personal Injury Commission. The third defendant is the Proper Officer. The parties relied on a joint court book (“Ex A”).

Background

1. [5]

   On 3 January 2015, the plaintiff suffered injuries in a motor vehicle accident. He was "rear ended" twice. The first collision was when he was driving his vehicle and the second as he was leaning through the window of his car from outside to obtain something from the glovebox of his car after both vehicles had pulled to the side of the road. Both collisions were the fault of the insured driver for whom the first defendant is the relevant compulsory third party insurer.

2. [6]

   On 15 January 2015, the plaintiff lodged an application for assessment of permanent impairment with the second defendant (Ex A, 56). On 10 March 2017, the plaintiff then lodged an application for assessment of a permanent impairment dispute by the Medical Assessment service (Ex A, 68).

3. [7]

   The plaintiff had a history of back complaints prior to assessment. The nature and extent of those problems and their relationship to the injuries suffered in the subject accident is the essential controversy between the parties.

4. [8]

   On 11 September 2017, the plaintiff’s claim was the subject of a medical assessment by the Medical Assessor, Dr Alan Home (“the Assessor”). On 14 September 2017, the Assessor issued a Medical Assessment Certificate pursuant to Pt 3.4 of the MAC Act (Ex A, 101).

5. [9]

   The Medical Assessment certificate deposes that the injuries to be assessed were the following (Ex A, 102):

6. [10]

   Under the heading ‘Post-accident’ the Assessor stated (Ex A, 110):

7. [11]

   Under the heading ‘Diagnosis and Causation’ the Assessor stated (Ex A, 112):

8. [12]

   The Assessor subsequently found the plaintiff to have a 25% whole person impairment (“WPI”) caused by the motor accident (Ex A, 114).

9. [13]

   On 24 September 2017, the insurer lodged an application for review of the Assessor’s Medical Assessment Certificate (Ex A, 117).

10. [14]

    On 2 January 2018, the Proper Officer of the State Insurance Regulatory Authority (“SIRA”) decided that there was reasonable cause to suspect a material error in the medical assessment and referred the matter to an Appeal Panel for review (Ex A, 137). At the time s 63(3) of the MAC Act provided:

11. [15]

    On 25 January 2018, following a teleconference the Review Panel contacted the plaintiff requesting the following additional information (Ex A, 140):

12. [16]

    On 2 February 2018, the solicitor for the plaintiff responded via email attaching the clinical notes of Dr Raoul Pope and the clinical notes of Associate Professor Al Muderis (Ex A, 142).

13. [17]

    On 26 April 2018, the Appeal Panel revoked the Assessor’s Certificate and substituted its own view in accordance with s 64(4) of the MAC Act and issued a certificate (Ex A, 145).

14. [18]

    Under the heading ‘Panel Deliberations’ the Appeal Panel stated in relation to the lumbar spine (Ex A, 149):

15. [19]

    The result was that the Appeal Panel found the plaintiff had suffered 0% WPI as a result of the accident.

16. [20]

    On 28 March 2019, the Appeal Panel’s Certificate was set aside by Schmidt J in Cornwall v Allianz [2019] NSWSC 324. In this decision, Her Honour stated at [47], [60]-[61] and [72]-[73]:

17. [21]

    The matter was remitted to the Proper Officer to be determined according to law. On 5 August 2019, an Appeal Panel (“the second Appeal Panel”) issued a further certificate (Ex A, 207).

18. [22]

    Under the heading ‘This Review Panel noted the following documentation’ the second Appeal Panel stated (Ex A, 218):

19. [23]

    Under the heading ‘C. Panel Deliberations’, the second Appeal Panel relevantly stated (Ex A, 226):

20. [24]

    Under the heading ‘4. Panel Decision’ The second Appeal Panel made the following findings (Ex A, 227):

21. [25]

    Following these findings, the Second Appeal Panel assessed the plaintiff’s injuries at 0% WPI (Ex A, 227).

22. [26]

    On 7 October 2020, the plaintiff made an application under s 62(1)(a) of the MAC Act for further assessment (Ex A, 229).

23. [27]

    In support of his application, the plaintiff relied on the reports of Dr Dawish (dated 5 March 2020 and 14 July 2020), the reports of Dr Giblin (dated 31 March 2020 and 12 May 2020), the reports of Dr Parkinson (dated 13 July 2020) and the report of Ben Reidy (5 May 2020).

24. [28]

    On 15 February 2021, the Proper Officer delivered her determination of the plaintiff’s application for further Medical Assessment (Ex A, 32):

25. [29]

    The Proper Officer summarised and set out both party’s submissions in her reasons. She summarsied the decision of the second Appeal Panel. The relevant portions record at [15]-[23] (Ex A, 35):

26. [30]

    Then the Proper Officer turned her attention to the contents of the reports of Drs Darwish, Giblin, Parkinson and Reidy. In her reasons, she relevantly recorded at [26]-[50] (Ex A, 38):

27. [31]

    The Proper Officer was not satisfied that there was a deterioration of the injury or additional relevant information about the injury such as to be capable of having a material effect on the outcome of the previous assessment. The application for further medical assessment was refused.

28. [32]

    The essential question in this appeal is whether the Proper Officer misconstrued the precondition to a referral of a medical dispute for further assessment under s 62(1) of the MAC Act on the ground of additional relevant information as qualified by s 62(1A).

Relevant legislation

1. [33]

   The relevant provisions of the MAC Act are as follows:

The legal principles

1. [34]

   Both parties referred to Jubb v Insurance Australia Limited [2016] NSWCA 153 (“Jubb”) and AAI Ltd t/a AAMI v Chan [2021] NSWCA 19 (“Chan”).

2. [35]

   In Jubb, at [54], [55], [60] and [80], Gleeson JA (with whom Meagher JA and Emmett AJA agreed) stated:

3. [36]

   In Chan, Leeming JA (with whom Gleeson JA agreed) stated at [16]-[22], [68]-[70], [72], [74]-[75] and [79]:

Grounds of judicial Review

1. [37]

   As noted in the insurer’s submissions, the plaintiff’s submissions do not follow the grounds set out in the amended summons and instead addressed both grounds of judicial review together. Hence it is difficult to dissect them into the separate grounds of judicial review as the defendant has done. I will adopt the same approach as the plaintiff, summarising the submissions of the parties followed by my resolution.

2. [38]

   The plaintiff contended that the principle issue raised is one of causation – was the condition of the plaintiff’s spine which necessitated multiple surgical treatments caused or contributed to by the motor accident?

3. [39]

   The plaintiff submitted that he failed before the second Appeal Panel because it was not satisfied of the causal connection between these matters, the resulting impairment and the motor accident. However, the fact that an issue had been a live one determined by an Appeal Panel no longer precludes new evidence on the topic from being characterised as additional: see Chan at [18].

4. [40]

   The plaintiff acknowledged the nature of the Proper Officer's decision is that of a gatekeeper but submitted that the Proper Officer’s satisfaction as to whether additional information is capable of altering the result is subjective: see Rodger v De Gelder [2011] NSWCA 97. The plaintiff submitted that the Proper Officer's "satisfaction", or lack of it, must be arrived at legally.

5. [41]

   Further, the Proper Officer’s decision must be attended by error falling within the constraints of judicial review, being either error of law on the face of the record or jurisdictional error. The face of the record extends to the Proper Officer's reasons: See Supreme Court Act 1970 (NSW) s 69(4).

6. [42]

   The plaintiff contended that the Proper Officer fell into both forms of error. In the plaintiff’s submission, she misdirected herself as to the test which the new medical evidence needed to meet, thereby committing legal error on the face of the record, and she failed to consider whether the evidence was capable of leading to a different outcome.

7. [43]

   The plaintiff noted that the history given to the second Appeal Panel was provided 4¼ years after the motor vehicle accident and the immediate post-accident period. The plaintiff submitted that this was the time during which the pattern and nature of symptoms was critical and the best evidence of what was occurring at that time is the clinical record of treatment of the plaintiff coupled with expert analysis by a medical practitioner.

8. [44]

   With regards to the Proper Officer’s decision at [26] and [29], the plaintiff submitted that the reasoning adverts to Dr Darwish's view that the need for surgery arose from the accident and concludes "this opinion" had been put to the Second Appeal Panel. The plaintiff contended that the opinion could not have been put to the Appeal Panel as it had not been expressed. The plaintiff submitted that as made clear in Chan, the fact that the argument or point was put does not mean that Dr Darwish's evidence on the issue is not additional relevant information. It follows, in the plaintiff’s submission, that the Proper Officer was in error by holding that the opinion was not additional. That is an error of law on the face of the record.

9. [45]

   The plaintiff contended that this also constitutes jurisdictional error, in combination with the analysis which follows, because the preconditions to the exercise of the Proper Officer’s power to refer for further assessment were present and should have been exercised. The Proper Officer erred in failing to enter upon the jurisdiction he had to refer the matter. It was also submitted that the reasoning fails to deal with 2 other aspects of the doctor's view: symptoms developed after the subject motor vehicle accident, and 95% of the symptoms and impairment were due to that accident. The Proper Officer does not say that either of these opinion or propositions had been put before the second Appeal Panel.

10. [46]

    The plaintiff submitted that this is an error of law in that the Proper Officer has, either, not considered relevant material when answering the question as to "additional relevant information" or has failed to disclose her reasoning so as to enable one to understand the actual process of reasoning in which he engaged to get to his conclusion. In the face of the decision in Chan, such a clear-cut expression of an additional opinion would require some exposed analysis for it to be rejected (if it was).

11. [47]

    Further, it is submitted by the plaintiff that in the concluding sentence at [29] of her decision, the Proper Officer exceeds her mandate and falls into jurisdictional error. There, the Proper Officer criticises the asserted lack of exposition by Dr Darwish of a basis for his views and thereby acts as if he constitutes the decision-making entity. The plaintiff submitted that it is not for the Proper Officer to weigh the evidence except at the threshold to determine if it is capable of affecting the outcome. To determine, effectively, that it lacks weight because of paucity of reasoning usurps the medical function of the second Appeal Panel. The Proper Officer is not exercising any medical function in determining an application under s 62 of the MAC Act.

12. [48]

    The plaintiff submitted that the scheme of the MAC Act and its interpretation involves recognition that the resolution of medical issues is left to Assessors and Medical Panels, they being qualified medical practitioners. When one medico uses a medical term or expresses a medical opinion another medical person is able to evaluate the idea advanced by the term by drawing on professional qualifications. They are permitted to apply their learning to evaluate what is being said. The Proper Officer is not. The plaintiff submitted that it is not for the Proper Officer to decide that a medical opinion lacks sufficient explanation of its scientific or other basis. Rather, the Proper Officer's role is to take the opinion at face value and determine whether it could impact on the assessment.

13. [49]

    The plaintiff contends that the Proper Officer fell into jurisdictional error by engaging in a critique of the weight to be given to Dr Darwish's opinion because it went beyond the question posed for his satisfaction, namely, whether the information was capable of materially affecting the assessment.

14. [50]

    In support of this submission, the plaintiff noted that Dr Darwish reported having an MRI dated 20 February 2015. He noted the plaintiff had seen Dr Pope in 2012 who treated him conservatively and from which the plaintiff made a good recovery maintaining full time employment. Dr Giblin said the plaintiff had a DRE 4 category injury "in terms of the motor vehicle accident" amount to 20% WPI.

15. [51]

    The plaintiff submitted that in coming to an opinion as to whether the new material was capable of materially altering the assessment, it was incumbent on the Proper Officer to compare the characterisation of the clinical record as propounded in the new material with the approach of the Appeal Panel whereby determinative significance was given to the recollections of the plaintiff without reference to the contemporaneous clinical records. It should be apparent, the plaintiff submitted, that using the clinical evidence and judgments is a permissible, if not desirable, means of evaluating causation. Approaching the issue in that way could lead to no other conclusion that that Dr Darwish's opinion was capable of relevantly changing the result. His failure to do so was a failure by him to exercise the jurisdiction placed in him to evaluate the potential impact of the substance of the new material on an Assessor.

16. [52]

    The plaintiff drew attention to where the Proper Officer extracted from the Certificate:

17. [53]

    The Appeal Panel had been unable to identify any specific triggering event when taking the history recorded. In paragraph [22] of the Reasons the Proper Officer identifies the critical conclusion of the Appeal Panel, namely:

18. [54]

    The plaintiff submitted that as paragraph [20] of the Proper Officer's Reasons reveals the first bout of decompression surgery occurred as shortly after the accident as 2 April 2015. By combination of paragraphs [19], [20] and [22] it is apparent that the critical issue is the nature and extent of symptoms between 3 January 2015 and 2 April 2015. All subsequent analysis is no more than repetition of the Appeal Panel's decision.

19. [55]

    The plaintiff submitted that by failing to compare the history identified and analysed by Dr Darwish with what the Proper Officer, correctly, saw as the determinative basis for the Appeal Panel's conclusion as to causation (the plaintiff’s memory) the Proper Officer failed to deal with the basis on which the plaintiff was contending the new material had the capacity to change the outcome.

20. [56]

    From [25] the Proper Officer recounts one of the pieces of additional evidence or information, namely the reports of Dr Darwish dated 5 March 2020 and a supplementary report dated 14 July 2020.

21. [57]

    The plaintiff notes that in Dr Darwish's report of 5 March 2020 the following relevant information appears:

22. [58]

    The plaintiff further noted that as the Proper Officer says at [28] of her Reasons, one of the significant factors leading to the Appeal Panel's conclusion "was the Claimant's pre-existing symptomatic low back pain and the fact that leg pain did not develop until 4 weeks after the accident".

23. [59]

    The plaintiff submitted that the Proper Officer erroneously stated that there is nothing in Dr Darwish's report which is capable of having any effect on the outcome of that assessment. It was submitted that whether one accepts it or not, Dr Darwish's analysis of the factual material has led him to state that the position is the opposite of that which the Appeal Panel found. Therefore, the Proper Officer must be wrong to say that the opinion he expresses is incapable of having an effect on that assessment. It may be that the opinion does not persuade or otherwise cause the Appeal Panel to doubt the decision to which it had earlier come but that does not mean it is incapable of doing so.

24. [60]

    The plaintiff drew attention to paragraph [29] of the Proper Officer’s decision, where she says that Dr Darwish provides little reasoning for his opinion and identifies as significant the absence, as the Proper Officer conceives it, of the conclusion being based on history. The plaintiff submitted that too is a misdirection as to the force of the evidence, which is clearly based on the history. The same errors are perpetrated in relation to Dr Giblin's opinion: see [35] of the Proper Officer's Reasons.

25. [61]

    The plaintiff submitted that the problem is exacerbated by consideration of [41] and [42] of the Proper Officer's Reasons. The question ultimately is whether the assumption Dr Parkinson was asked to make is one which the material bears out. This must be irrespective of whether the plaintiff gave an accurate or reliable history concerning the onset of pain. It is unavoidably the case that the contemporaneous records prepared when reviewing the plaintiff are likely to be a far more accurate account of events. Therefore, if the assumption italicised and bolded in paragraph [41] of the Reasons given by the Proper Officer is one which the clinical records support then, self-evidently, it has the capacity to affect the assessment.

26. [62]

    The insurer submitted the substance of the plaintiff’s position is an argument as to the merits of the Proper Officer’s decision as it alleges that a different decision should have been reached. The insurer submitted that this does not constitute grounds for judicial review. The determination was a matter for the subjective satisfaction of the Proper Officer, and absent one of the narrow type of errors being present as outlined in the authorities referred to earlier, the decision is not subject to challenge.

27. [63]

    The insurer submitted that, with regards to Judicial Ground (1)(a), the plaintiff complains that the Proper Officer has incorrectly interpreted what ‘additional’ means in the context of the statutory test in section 62(1)(a), and that this has affected the consideration of the reports of Dr Darwish and Dr Giblin.

28. [64]

    The insurer drew attention to where the plaintiff says at [19] of their submissions:

29. [65]

    The insurer submitted that this submission misconceives the decision in Chan. If a doctor expresses an opinion that has previously been expressed by a different doctor, that may constitute additional relevant information, but it does not necessarily constitute such. In fact, this may “point against its being capable of having a material effect on the outcome”: see Chan at [68]).

30. [66]

    It is not the case that, as the plaintiff says at [20]: “It follows the Proper Officer was in error by holding that the opinion was not additional. That is an error of law on the face of the record.” As the Court of Appeal indicated Chan, if there is an error in this respect, it is an error of fact rather than an error of law, and it is not amenable to judicial review.

31. [67]

    The insurer noted that at [22] of his submissions, the plaintiff contends that the Proper Officer did not deal with Dr Darwish’s view that symptoms developed after the subject motor accident and that 95% of the symptoms and impairment were due to the accident. However, the Proper Officer does deal with this, at [28] of the decision, where she states that a significant factor in the second Appeal panel’s decision was that the relevant pain did not commence until 4 weeks after the accident. The Proper Officer says that there is nothing in Dr Darwish’s report that would be capable of having any effect on the outcome of that assessment. This responded to the question that the Proper Officer had to ask herself which was whether Dr Darwish’s report (including his opinion as to causation) was additional relevant information that was capable of having a material effect on the outcome of the previous assessment.

32. [68]

    The insurer drew attention to where the plaintiff’s submissions say at [30] that “it was incumbent on the Proper Officer to compare the characterisation of the clinical record as propounded in the new material with the approach of the Panel whereby determinative significance was given to the recollections of the plaintiff without reference to the contemporaneous clinical records” and then at [34]–[36] refer to Dr Darwish. However, in the insurer’ submission, Dr Darwish has nothing to say about the timing of the onset of symptoms, except to say that it was “after” the subject motor accident. On the basis of this evidence, the insurer submitted that it cannot be said that it was not open to the Proper Officer to find as she did, that the evidence was not capable of changing the second Appeal Panel’s determination that rested significantly on the finding that there was a delayed onset of pain for 4 weeks after the accident.

33. [69]

    The insurer submitted that at [40] and [41] of the plaintiff’s submissions the same errors are perpetrated in relation to the consideration given to Dr Giblin and Dr Parkinson. However, Dr Giblin and Dr Parkinson also have nothing to say about the timing of the onset of pain, except Dr Parkinson who (as the Proper Officer noted) was asked to make an assumption.

34. [70]

    Next, the insurer notes that the plaintiff says at [41] that “if the assumption italicised and bolded in paragraph 41 of the Reasons given by the Proper Officer is one which the clinical records support then, self-evidently, it has the capacity to affect the assessment.” However, the insurer submitted that the clinical records that the plaintiff relied on were already before the second Appeal Panel and specifically referred to by them and did not form part of the new material relied upon in the application for further assessment.

35. [71]

    In the insurer’s submission, even if the Proper Officer had erred in relation to the consideration of “additional”, it would be immaterial to the decision because the Proper Officer’s decision does not turn on whether Dr Darwish and Dr Giblin were “additional”. Rather, the Proper Officer determined to her own subjective satisfaction, that the reports could not be capable of having a material effect on the previous assessment.

36. [72]

    The insurer notes that the Proper Officer relevantly states at [27] of her decision:

37. [73]

    Further, the Proper Officer then states at [35], in relation to Dr Giblin’s report:

38. [74]

    The insurer referred to Hossain v Minister for Immigration and Border Protection [2018] HCA 34 and MZAPC v minister for Immigration and Border Protection [2021] HCA 17 and submitted that even if there were error in the approach of the Proper Officer as to whether the material was or was not additional, the argument is moot because, ultimately, the Proper Officer lawfully satisfied herself that the material would not be capable of having a material effect on the outcome of the previous assessment.

39. [75]

    With regards to Judicial Ground 1(b), the insurer submitted that the Proper Officer considered the reports of Dr Darwish and considered the submissions of the plaintiff as summarised at [11] of the decision. While there was some consideration as to whether or not the material referred to in this ground was in fact additional relevant material this consideration was moot point. The Proper Officer explains that she was not satisfied that the material was capable of having a material effect on the previous assessment. Ultimately, the Proper Officer has asked herself the correct legal questions and applied the correct statutory test throughout.

40. [76]

    The insurer submitted that it is clear from the ordinary wording in the reasons that the Proper Officer was cognisant of the statutory framework of the empowering provision and made her determination in accordance with both Chan and s 62 of the MAC Act. Ultimately the material was considered and the application was rejected on the primary basis of materiality. If that threshold is not met then whether or not the material is additional is irrelevant, because of the prohibition in s 62 of the MAC Act.

41. [77]

    In the insurer’s submission this path of reasoning discloses no error as outlined in Chan at [78].

42. [78]

    In relation to Judicial Ground 1(c), the insurer submitted that the Proper Officer has been clear in her reasons in declining the application. There is no requirement to respond to every sentence submitted by the applicant, as long as the substance of the application is addressed. The Proper Officer has done this and her reasons are plainly set out. To require further explanation of the Proper Officer’s reasons would be requiring a standard above that which is required of an administrative decision maker. The Proper Officer is entitled to a beneficial construction, read fairly and as a whole.

43. [79]

    The insurer submitted that the decision did not turn on the question of whether the material was additional relevant information. The Proper Officer considered that the material was not capable of having an effect on the outcome of the previous assessment, thereby rendering a final determination on the question of whether the material was “additional relevant information” otiose. There was no requirement to give further reasons on that redundant point, and even if there was, it could not be material to the outcome of the decision, given that it was decided on other grounds.

44. [80]

    With regards to Judicial Ground (1)(d), the insurer submitted that it is the plaintiff’s contention that the Proper Officer has applied the incorrect legal test of materiality. However, this is demonstrably not the case in either form or substance. The Proper Officer states the correct test at [10], [11], [27], [28], [31], [32], [35], [39], [40], [40], [45], [46], [50], [51] and [52] and appears to apply the correct test throughout the decision. The plaintiff does not substantiate how it is said that the Proper Officer applied a test of “would” rather than “could”.

45. [81]

    The insurer submitted that Judicial Ground 2(a) is, in effect, a reframing of the above grounds. There is no error in the findings of the Proper Officer. There was no legal requirement to make such a finding. All that was required of the Proper Officer was an evaluation of the application to determine a base level of satisfaction, and this was a matter of subjective satisfaction for the Proper Officer. If that satisfaction was not met, then the Proper Officer was required to reject the application. The Proper Officer has done so here.

46. [82]

    In relation to Judicial Grounds (2)(b), the insurer submitted that it is the plaintiff’s contention that the Proper Officer has fallen to jurisdictional error in engaging in a process of weighing the information that was said by the plaintiff to be additional or relevant. The test required to be applied by the Proper Officer required evaluation and subjective satisfaction. When read fairly and as a whole, it is apparent that the Proper Officer is simply making an evaluation of the application by considering whether Dr Darwish’s report would meet the threshold of capacity to have a material effect on the outcome of the second Appeal Panel’s assessment.

47. [83]

    The insurer noted that the plaintiff specifically takes issue with the Proper Officer’s reasons at [29], where the Proper Officer states that Dr Darwish appears to provide little reasoning in this supplementary report to support his conclusion and it is not evident that his conclusion is based on any findings.

48. [84]

    The insurer submitted that, read in its proper context, it is clear that the Proper Officer is not overstepping her jurisdictional limit. The Proper Officer makes an assessment and asks prudent questions in applying the lawful test of materiality. In fact, Chan supports this very kind of evaluation. Furthermore, when read as a whole (as is required) it is clear that the Proper Officer considered that Dr Darwish’s opinion did not satisfy the test because it had already been put to the second Appeal Panel for consideration in earlier reports (including an earlier report of Dr Darwish himself). The final sentence at [29] simply elaborates as to why the allegedly “additional” opinion is not in fact additional.

49. [85]

    The insurer contends that it must be within the scope of the Proper Officer’s role to be able to consider whether a further report that expresses the same opinion as previous reports actually contains anything of substance to differentiate it from the previous reports. Otherwise, any further report that expresses an opinion would mandate a referral for further assessment. This is directly at odds with the authorities. The Proper Officer had a statutory function to perform, and that required her to be satisfied that the material relied upon by the plaintiff was capable of having a material effect on the outcome of the previous assessment. The evaluative process that she engaged in was within the bounds of her jurisdiction.

50. [86]

    In relation to both Grounds 2(c) and 2(d), the insurer submitted that the Proper Officer has been clear in her reasons. She plainly considers whether the reports of Dr Darwish and Dr Giblin are capable of having a material effect on the outcome of the previous assessment, and explains why, in her opinion, they do not satisfy that threshold.

Resolution

1. [87]

   Despite being expressed in two different Grounds of Judicial Review, the plaintiff’s challenge to the decision of the Proper Officer involves the consideration of one issue. That is, did the Proper Officer incorrectly exercise her discretion under s 62(1) of the MAC Act in refusing the plaintiff’s application for further assessment.

2. [88]

   The leading authority with regards to s 62(1) and s 62(1A) of the MAC Act is the recent Court of Appeal decision in Chan. The relevant passages of which are set out earlier in this judgment. Here it was held that the threshold question for the Proper Officer is whether the additional reports are such as to be capable of having a material effect on the outcome of the previous assessment. Only if she formed the opinion that they were, was the prohibition in s 62(1A) of the MAC Act inapplicable. If she did form that opinion, then it would be necessary to exercise a discretion under s 62(1) of the MAC Act.

3. [89]

   The prohibition in s 62(1A) of the MAC Act turns on whether the Proper Officer has formed an ‘opinion’ as to whether the additional information is such as to be capable of having a material effect on the outcome of the previous assessment. It is established that in respect of s 62(1A) of the MAC Act, despite the absence of any explicit reference to the opinion of the Proper Officer, as opposed to the fact that the additional relevant information is capable of having a material effect on the outcome of the previous assessment, that nonetheless the prohibition in s 62(1A) of the MAC Act turns on the Proper Officer’s opinion: See Jubb at [33] where Gleeson JA collects the authorities regarding this principle.

4. [90]

   Whether or not additional relevant information is capable of having a material effect on the outcome of a previous assessment depends upon the reasons for the previous assessment and the nature of the additional information. For example, if the additional information contains a new opinion as to the mechanism of injury, then that would be a factor pointing towards its being capable of having a material effect on the outcome of the previous assessment. If on the other hand the additional information substantially overlaps with material already considered by an assessor or an Appeal Panel, then that would point against its being capable of having a material effect on the outcome. However, in either case this is a question of fact.

5. [91]

   The task for this Court on review is confined to whether the opinion has been properly formed according to law. The issue is not whether the Proper Officer was right or wrong to hold the opinion: See Chan at [28]. The issue is whether the opinion has been shown to be vitiated on administrative law grounds. That might be because it is based on a misconstruction of the legislation, because it paid regard to something that is prohibited by statute, or because it was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: See QBE Insurance v Miller [2013] NSWCA 442 at [36]. With regards to the reasons of the Proper Officer, it is to be borne in mind that the Proper Officer is not necessarily as qualified as a legal practitioner or a medical practitioner, and the brief written reasons which accompany the decision are not to be construed as if they were reasons for the judgment of a court: See Chan at [29].

6. [92]

   Turning to the Proper Officer’s decision, there would be judicially reviewable error if the Proper Officer had merely confined her inquiry to whether the reports were not based on new findings or information not available to the previous assessors. In accordance with the decision of Jubb, the additional reports are not precluded from being considered ‘additional new information’ for the purposes of s 62 simply because the issues discussed in the reports were alive at the previous assessment. As stated above, that is not the question posed by s 62(1A). However, in my view, that is not what she did. The Proper Officer went further and asked precisely the question posed by statute – were the new reports capable of having a material effect on the outcome of the previous assessment?

7. [93]

   In answering this question, the Proper Officer firstly summarised the evidentiary documentation that was before the second Appeal Panel. She then summarised the reasoning of the second Appeal Panel at [22] of her decision, stating that the second Appeal Panel concluded that the plaintiff sustained a soft tissue injury of the lower back from the motor accident, the effects of which had resolved and that the accident was not a cause of the right-sided SI radiculopathy due to L5-S1 disc prolapse requiring lumbar spine decompression and later, lumbar fusion. She further stated at [23] that symptoms of persisting lower back pain after the accident were similar to those which had preceded the accident. The Proper Officer identified that a significant factor in the second Appeal Panel’s theory of causation was the finding that there was no clinical evidence of right lower limb symptoms until four weeks after the accident.

8. [94]

   With regards to the reports of Dr Darwish, the Proper Officer firstly summarised the report noting Dr Darwish’s theory of causation and specifically that he had opined that “symptoms developed after the first motor vehicle accident” and that “95% of the symptoms and the impairment was caused by the first motor vehicle accident.” The Proper Officer considered that even if she considered the reports of Dr Darwish to be ‘new information’ she was not satisfied that the information was capable of having a material effect on the previous assessment. She stated that a key aspect of the second Appeal Panel’s determination was the plaintiff's pre-existing symptomatic low back pain and the fact that leg pain did not develop until four weeks after the accident. She stated that there appeared to be nothing in the reports from Dr Darwish that she considered such as to be capable of having any effect on the outcome of those findings made by the second Appeal Panel.

9. [95]

   With regards to the report of Dr Giblin, the Proper Officer summarised the report of Dr Giblin and opined again that even if she accepted that the reports provided additional relevant information about the injury, she was not satisfied that the additional relevant information was such as to be capable of having a material effect on the outcome of the previous assessment of the lumbar spine. In the Proper Officer’s view, the information on which Dr Giblin relied in his supplementary report had already been considered by the second Appeal Panel and there was little reasoning to support his conclusion.

10. [96]

    With regards to the report of Dr Parkinson, the Proper Officer summarised the report. She noted that despite Dr Parkinson stating that the temporal association between the accident and symptom development strongly suggests a causative connection, this view was based upon a number of assumptions which were at odds with the information provided by the plaintiff to the second Appeal Panel and not supported by further information. For this reason, she found that the report of Dr Parkinson was not capable of materially affecting the decision of the second Appeal Panel.

11. [97]

    It is clear that lack of contemporaneous documentation of complaints regarding the right lower limb until four weeks after the accident was a significant factor in the second Appeal Panel’s determination that the injuries sustained by the plaintiff were not caused by the motor vehicle accident. While the additional reports of Dr Darwish, Dr Giblin and Dr Parkinson do provide further support to the theory of causation put forward by the plaintiff, the information referred to by these additional reports, notably the physiotherapist report of Ms Crapp, had already been before the second Appeal Panel. Furthermore, the additional reports did not substantiate any arguments dispensing the second Appeal Panel’s theory of causation involving the lack of contemporaneous complaints regarding the plaintiff’s right lower limb during the four-week period after the accident. In my view, it was open to the Proper Officer to form the opinion that the additional material adduced was not capable of materially affecting the decision of the second Appeal Panel.

12. [98]

    The plaintiff submitted that the Proper Officer exceeded her jurisdictional limit by criticising the lack of reasoning provided in Dr Darwish’s report. I do not accept this submission. In order to properly form an opinion as to whether the reports were ‘new relevant information’, in accordance with s 62(1A) the Proper Officer must evaluate whether the new information is capable of materially affecting the outcome of the previous assessment: See Chan at [25]. In doing so, it must be within the scope of the Proper Officer’s jurisdiction to provide reasons as to why they have formed such an opinion. As stated above these ‘brief reasons’ are not to be construed as if they were reasons for the judgment of the court. In my view, this ground of judicial review in reality seeks to argue the merits of the Proper Officer’s decision and fails to disclose any error of law.

13. [99]

    The Proper Officer applied the correct statutory test set out in s 62 of the MAC Act and described in Chan and when doing so and did not overstep her jurisdictional limit. The plaintiff has failed to establish error on the face of the record, or jurisdictional error on behalf of the Proper Officer.

Result

1. [100]

   The result is that the Proper Officer’s decision was not vitiated by error on the face of the record or jurisdictional error. Both Judicial Grounds of Review (1) and (2) fail.

Costs

1. [101]

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

   1. (1)

      The amended summons filed 28 May 2021 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs on an ordinary basis.