Tongi v Insurance Australia Limited t/as NRMA Insurance

1. [1]

   These proceedings commenced with the filing of a summons on 25 January 2024. An amended summons was filed on 14 February 2024.

2. [2]

   An affidavit of Mr Philip Scroope, dated 27 February 2024, was filed in support of the proceedings. Mr Scroope is the plaintiff’s solicitor.

Background

1. [3]

   The plaintiff was involved in a motor vehicle accident on 6 December 2018. She was injured in the accident. The plaintiff alleges that the accident was the fault of the driver of the other vehicle involved. The first defendant is the Compulsory Third Party insurer of the other vehicle.

2. [4]

   The plaintiff made a claim in the Personal Injury Commission of New South Wales (the PIC) against the first defendant for benefits and damages arising from the accident. The claim was made under the Motor Accident Injuries Act 2017 (NSW) (the “Act”). The president of the commission is the second defendant.

3. [5]

   Both defendants have entered submitting appearances to the amended summons. This is the usual stance taken by the second defendant. It is not usual for the CTP insurer to enter a submitting appearance. It is of some significance that the first defendant does not wish to contest the orders sought.

4. [6]

   Section 4.11 the Act states:

5. [7]

   The plaintiff and the first defendant disagreed as to whether the plaintiff had a permanent impairment in excess of 10%. This led to a medical dispute under the Act so that the plaintiff made an application in the PIC for resolution of this dispute.

6. [8]

   The PIC assigned a medical assessor, Dr Wing Chan, to conduct a medical assessment of the plaintiff. This occurred on 20 July 2023.

7. [9]

   The Medical Assessor issued a Medical Assessment Certificate on 16 August 2023 stating a finding that the plaintiff had a whole person impairment of 10%. As a result, consistent with s 4.11 (quoted above) the plaintiff would not be entitled to non-economic loss in her claim for compensation.

8. [10]

   I note here that the whole of the 10% impairment found by the medical assessor was attributed to the plaintiff’s right foot and ankle. Her allegation of an injury to her lower back was not productive of any finding of impairment. To the contrary, the Medical Assessor found that the plaintiff had not injured her lower back in the accident.

9. [11]

   The plaintiff, obviously not satisfied with the Medical Assessor’s decision, applied to the second defendant for a referral of the medical assessment to a review panel (s 7.26 of the Act).

10. [12]

    Section 18 of the Personal Injury Commission Act 2020 (NSW) allows the second defendant to delegate the question of whether there should be a referral of the medical assessment to a review panel. The second defendant delegated this decision to Mr Jeremy Lum (the Delegate).

11. [13]

    The Delegate dismissed the application for review on 31 October 2023.

12. [14]

    The amended summons seeks judicial review of the Delegate’s decision.

Judicial Review

1. [15]

   Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) governs judicial review proceedings in this court. The various requirements of Pt 59 have been complied with, including the filing of the summons within three months of the decision under review (r 59.10).

2. [16]

   The High Court said the following about judicial review in Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [23]-[25]:

3. [17]

   As noted above, the request for a review of the medical assessment was made pursuant to s 7.26. Subsection (5) states:

4. [18]

   The predecessor to the Motor Accident Injuries Act 2017 was the Motor Accidents Compensation Act 1999 (the MACA). Section 63 of the MACA was in similar terms to s 7.26. In Meeuwissen v Boden [2010] NSWCA 253, Basten JA said the following about s 63, from [18]:

The plaintiff’s case

1. [19]

   The plaintiff submitted:

2. [20]

   The plaintiff submitted that the errors that had been committed by the Medical Assessor concerned the manner in which the plaintiff’s asserted lower back injury was assessed. The plaintiff submitted that instead of considering causation “from the perspective of whether it was a consequential injury/condition” the assessor only dealt with the injury on the basis that it was not directly caused by the accident. The Medical Assessor stated:

3. [21]

   The plaintiff submitted that there was evidence before the Medical Assessor from a Dr Poplawski which supported a causal link between the accident and the plaintiff’s lower back pain. The Medical Assessor did refer to the report of this doctor dated 23 March 2022 and observed:

4. [22]

   Dr Poplawski’s report is actually dated 23 February 2022 and in respect of the plaintiff’s lower back states:

5. [23]

   The Medical Assessor thus seems to have taken an approach that required a direct injury to the lower back in the motor vehicle accident and excluded the possibility of the plaintiff’s ongoing lower back complaints as being referable, or caused by, the accident in consequence of the direct injury to her foot. The Medical Assessor does not seem to have considered any aggravation to the plaintiff’s lower back condition; rather he has taken the simplistic approach of ‘she didn’t hurt her back in the accident therefore any complaints of low back pain were not caused by the accident.’

6. [24]

   In Rodger v De Gelder [2015] NSWCA 211, Gleeson JA said of the assessment in that case, at [109]:

7. [25]

   In my view the Medical Assessor, adopting the words used in De Gelder, failed to respond to a substantial argument based on evidence relied upon by the plaintiff as to the causation of her lumbar spine injury by the motor accident.

8. [26]

   I agree with the plaintiff’s submission that the Medical Assessor’s treatment of causation was wrong.

9. [27]

   This error was put to the Delegate who noted that:

10. [28]

    The Delegate then goes on to say that “nowhere in the claimant’s review application submissions is it asserted that the argument of consequential lumbar spine injury (or the Nguyen principal) was ever put before Assessor Chan.”

11. [29]

    The submissions however specifically note that the Medical Assessor was aware of and noted Dr Poplawski’s report which has the specific reference to the consequential injury. I find it somewhat disingenuous for the Delegate to have made the above comment in the light of the Medical Assessor’s specific reference to Dr Poplawski’s report.

12. [30]

    While I would not go so far as to agree with the plaintiff’s submission that the Delegate “acted as a protagonist” there is some weight in the submission of an unwarranted justification of the Medical Assessor’s error concerning causation.

13. [31]

    I think it follows that the Delegate committed jurisdictional error in his treatment of the Medical Assessor’s findings.

14. [32]

    The plaintiff’s written submissions consider a number of other asserted grounds for judicial review. I do not think I need to consider them, not just because the matter has been determined by my findings above, but also because the other grounds seemed to me to be extensions or variations of the initial error that the Delegate did not recognise, and therefore did not deal with. The obvious error that had been made by the Medical Assessor is his treatment of causation of the low back injury.

15. [33]

    Once that error was identified, as it should have been, then consistent with Meeuwissen, the matter should have been referred to a Review Panel. I will therefore return the matter to the second defendant.

    1. (1)

       The decision of the second defendant’s Delegate dated 31 October 2023 declining to refer the application for review to a review panel, is set aside.

    2. (2)

       The matter is remitted to the Personal Injury Commission of New South Wales for reconsideration of the decision required by s 7.26 of the Motor Injuries Act 2017 (NSW) in accordance with the law.

    3. (3)

       No order is made as to the costs of the proceedings.