Cable v Gray

The plaintiff, Stephen Cable, was injured in a car accident on 15 November 2017. He seeks judicial review of the Review Panel’s assessment of his whole person impairment. The issue is whether or not the Review Panel (the Panel) fell into jurisdictional error by refusing to delay the assessment of whether he suffered greater than 10% whole person impairment and for failing to provide reasons for the decision not to postpone the assessment.

Mr Cable seeks an order in the nature of certiorari or alternatively a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the Review Panel Certificate and reasons dated 5 December 2021 are invalid and that the matter be referred for further assessment and determination by a different Review Panel.

All active defendants filed submitting appearances.

For the reasons that follow, there was a failure to provide procedural fairness, the orders Mr Cable seeks should be made, and the matter should be referred to a different review panel for a decision to be made according to law.

Pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW) (the Act), for Mr Cable to have an entitlement to a sum for non-economic loss, he needs to show a whole person impairment of greater than 10%.

There was no agreement between the parties as to the whether Mr Cable’s level of whole person impairment exceeded 10%.

Mr Cable made an application to the Medical Assessment Service for an assessment to be carried out. A report of Dr Dixon, orthopaedic surgeon, assessed his whole person impairment under the relevant guidelines at 16%.

Mr Cable underwent a further medicolegal examination by Dr Dixon who provided a report dated 30 June 2020, stating that Mr Cable’s right shoulder and lower back injuries had not yet stabilised and that it was probable that he would require further operative intervention.

On 3 July 2020 Mr Cable had surgery on his right shoulder by Dr Petchell. On 17 September 2020 Mr Cable had lumbar spine surgery performed by Dr Davies. On 6 May 2021 Mr Cable had further surgery on his lower back, again performed by Dr Davies.

On 7 December 2020 Dr Rosenthal issued a certificate concluding that Mr Cable’s injuries comprising injury to his cervical thoracic and lumbar sacral spine did not give rise to a whole person impairment of greater than 10%.

On 20 August 2021 Mr Cable sought a review of Dr Rosenthal’s assessment on the basis that the assessment was incorrect in a material respect. This was accepted by the relevant officer at the Person Injury Commission, (“the Commission”), and the application for review was granted.

As provided by s 63(3A) of the Act a review panel’s task is to make a fresh assessment of all matters. The Panel was not confined to a review of Dr Rosenthal’s error. As part of his application for review, Mr Cable provided written submissions which requested that he be physically examined by the Panel and that further medicolegal evidence regarding his recent surgeries be received. It was stated that this could not occur until 2022 because of Dr Dixon’s unavailability.

On 19 October 2021 the Commission advised that a physical examination by the Panel (or part of it) by Assessors Dr Moloney and Dr Gray would take place on 24 November 2021.

On 29 October 2021 Mr Cable’s solicitor wrote objecting to the examination being conducted before the further report had been obtained from Dr Dixon.

On 4 November 2021 the Commission responded to the letter as follows:

On 12 November 2021 Mr Cable’s solicitor responded, submitting that it was premature for the Panel to assess Mr Cable and again, sought an opportunity to obtain medicolegal evidence from Dr Dixon and to obtain expert evidence from a biomechanical engineer in response to evidence served by the insurer. There was no reply.

On 23 November 2021 Mr Cable’s solicitor again wrote to the Commission explaining that Mr Cable was scheduled for further back surgery on 2 December 2021. There was no reply.

The Panel issued a certificate dated 5 December 2021, revoking the certificate of Dr Rosenthal and certifying that the only injury suffered by Mr Cable in the accident was: “cervical spine - soft tissue injury”. That gave rise to a whole person impairment of 5%. The Panel concluded that “the lumbar spine - soft tissue injury”, “right hip - soft tissue injury” and “right shoulder - soft tissue injury” were not caused by the accident.

The decision of the Panel to refuse to delay its assessment is the subject of the application for judicial review.

Mr Cable asserted in his initiating summons that the Panel fell into jurisdictional error and failed to exercise its statutory powers in the following respects:

Mr Cable seeks the following:

This Summons for judicial review is brought pursuant to s 69 of the Supreme Court Act 1970 (NSW) which enables the supervision of executive or administrative decision-making in New South Wales.

The Court’s role is to determine the legality of administrative decisions, not the merits. As Brennan J set out in Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at p 35 to 36:

Given the necessary deference to the authority of the administrative decision-maker, its reasons are to be read as a whole, fairly and beneficially, and without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at p 271 to 272.

The structure of the Act is such that claims assessors are empowered by and must have regard to guidelines made under the Act, which establish procedures for assessing claims. The guidelines are generally binding.

Significant to this appeal is the fact that the Panel is bound by the common law to comply with the rules of natural justice and procedural fairness.

Any assessment, including any decision-making by the Panel, needs to show in a comprehensive and transparent way the actual path of reasoning: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], [55] and [56]; Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 per Emmett JA (at [34]), Meagher and Leeming JJA agreeing at [1] and [5] respectively.

Section 63 of the Act defines the functions of a review panel in these terms:

Justice Giles elaborated upon the task of a review panel in McKee v Allianz (Australia) Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [38]:

The Medical Assessment Guidelines issued by the Commission pursuant to s 44(1)(d) include relevantly:

Clause 13.2 of the guidelines provides:

Senior Counsel for Mr Cable contended that there were two jurisdictional errors committed by the Panel. The first was that the Panel refused to defer the assessment of Mr Cable. The second was that no reasons (at all) were given by the Panel for that decision. These errors both amount to jurisdictional error or are errors of law. The assessment by the Panel and its subsequent certificate thus did not comply with the rules of procedural fairness.

These failures in procedural fairness fatally affected the Panel’s decision. The failure of the Panel to defer the assessment meant that the Panel denied Mr Cable the opportunity to put forward critical expert evidence pertaining to his recent surgery. This was in circumstances where there was no particular urgency to carry out the assessment, nor was there any opposition by any other party to the application to defer the assessment.

The Panel failed to give reasons for the decision not to defer the examination. The Panel/Commission is not required to give detailed reasons for every decision made, but there is an obligation to identify why the assessment was not postponed. Without giving any reason (at all) for the decision, the Panel failed to accord procedural fairness to Mr Cable and this constitutes jurisdictional error.

As submitted by Senior Counsel for Mr Cable, there was no particular urgency in carrying out the assessment. On the contrary, it was important to Mr Cable’s case that the Review Panel had available to it relevant medical opinion that covered the surgery carried out on Mr Cable so that the Panel could be appropriately informed.

No one opposed deferral of the assessment.

The position regarding the surgery was made clear in appropriately detailed letters sent on behalf of Mr Cable, to which other than the first of the three, there was not the courtesy of a reply.

As stated in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]:

The timing of the examination was forced for no valid reason and the decision to refuse to postpone it was never explained.

This too was a failure to afford procedural fairness and this also constitutes jurisdictional error.

Accordingly the certificate of the Panel should be set aside and the matter referred by the fourth defendant for further assessment by a differently constituted review panel.

I make orders as follows: