Momand v Allianz Australia Insurance Limited

1. [1]

   This is a judicial review from the Personal Injury Commission concerning a minor injury arising from a motor vehicle accident.

2. [2]

   By amended summons filed on 20 December 2022, the plaintiff relevantly seeks:

3. [3]

   The plaintiff is Yama Momand. The first defendant is CIC Allianz Insurance Limited (‘the insurer’). The second defendant is Ian Cameron in his capacity as a medical assessor. The third defendant is Tajan Baba in his capacity as a President’s Delegate. The fourth defendant is the President of the Personal Injury Commission. The second, third and fourth defendants filed a submitting appearance.

4. [4]

   The plaintiff relied on a Court Book (2 Volumes). R. Sheldon SC and K. Boetcher of counsel appeared on behalf of the plaintiff. On 3 April 2023, by email the first defendant (‘the insurer’) advised the plaintiff that it consents to paragraphs 2, 3 and 5 of the summons as set out above. That means there is no contradictor. Nevertheless, this Court has to satisfy itself whether these grounds of review constitute errors of law or jurisdictional errors on the face of the record and if so whether the matter should be remitted to the Personal Injury Commission to be determined according to law.

5. [5]

   These proceedings challenge a Medical Assessment Certificate issued by Assessor Ian Cameron on 26 July 2022 (‘the Assessor’) (CB.36-37) and a failure by the delegate of the President of the Personal Injury Commission (‘the delegate’) to accept that the Application for Review of the Certificate (‘the Application’) was lodged within time, or to extend time for making that Application under rule 133A of the Personal Injury Commission Rules 2021 (NSW) (‘PIC Rules’), and to determine the refusal of the application to extend time would "work demonstrable and substantial injustice" (rule 133A(5)).

The law

1. [6]

   "Minor Injury" was then defined at s 1.6 of the Motor Accident Injuries Act 2017 (NSW) (‘MAIA’). It read:

2. [7]

   The definition of “minor injury” was amended. Minor injury was changed to “threshold injury”, but the rest of the s 1.6 remained the same. These proceedings fall under “minor injury” as set out above.

3. [8]

   On 19 January 2018, the plaintiff was injured in a motor accident within the meaning of the MAIA. The first defendant admitted breach of duty of care by its insured owner/driver in relation to the accident.

4. [9]

   As to whether the plaintiff’s injuries were “minor”, in a report dated 3 February 2018 prepared by Dr. Tej Dugal, the plaintiff underwent an MRI of the cervical spine. It revealed the following:

5. [10]

   On the same day, the plaintiff also underwent a CT scan of the lumbar spine, which revealed:

6. [11]

   In summary, the results of the tests showed that there was a broad-based disc protrusion at C5/C6. This indents the ventral thecal sac. The CT scan of the lumbar spine demonstrated a subtle broad-based disc bulge of the ventral sac.

7. [12]

   The grounds of judicial review in relation to the Assessor’s decision are as follows:

   1. (1)

      The Assessor failed to give reasons or adequate for determining that the injury to the plaintiff’s neck and low back were minor injuries.

   2. (2)

      The Assessor failed to have regard to the definition of minor injury in the Motor Accidents injuries Act, 2017 as it relates to spinal discs.

   3. (3)

      The Assessor applied Clause 5.9 of the Medical Assessment Guidelines which is ultra vires.

8. [13]

   At page 5 of the Certificate the Assessor noted:

9. [14]

   At page 7 he said:

10. [15]

    He then wrote "Cervical spine - soft tissue injury" was caused by the motor accident: also, at page 7.

11. [16]

    On page 8 he excluded injury to the shoulders as injuries in themselves. This finding is not the subject of this judicial review.

12. [17]

    Paragraph [23] of the Certificate addresses "Minor Injury" and correctly recites s 1.6(2) of the MAIA, that states:

13. [18]

    The assessor then quotes from what he describes as "Schedule 1 [2] Cl 4" of the Motor Accident Injuries Regulation 2017 (NSW) (the "Regulations"). The quote seemingly refers to Part 1 Cl 4 of the Regulations, which relevantly provides:

14. [19]

    The assessor then proceeded to explain that the absence of radiculopathy renders the "listed injuries" as falling into the category of minor injuries. In doing so the basis cited for the determination is based upon the regulation. Because the injury was minor permanent impairment was not evaluated: para [26], page 9. While the plaintiff puts in issue the Assessor’s approach to radiculopathy, I do not agree with these submissions: see [29] of the Delegate’s decision.

15. [20]

    The assessor determined the plaintiff had, relevantly, suffered a soft tissue injury to his neck. Central to the Assessor's approach was a statement that an MRI of the neck performed on 3 February 2018 showed a disc protrusion at C5/6. The Assessor omitted reference to the balance of the report of that MRI, which identified "indentation of the ventral thecal sac" and moderate stenosis bilaterally (as set out earlier in this judgment). The thecal sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material.

16. [21]

    The first complaint is that the assessor was not dealing with "injury to a spinal nerve root" he was dealing with a disc protrusion. The regulation he cited had nothing to do with the matter he was assessing or, if it did, he did not explain the connection between a prolapsed disc and injury to a nerve root.

17. [22]

    Section 1.6(2) of the MAIA defines a soft tissue injury by reference to a variety of tissue types or body parts and then provides that a soft tissue injury is:

18. [23]

    Because an intervertebral disc is a cartilaginous structure injury to the disc, it is not a soft tissue injury. A prolapsed disc is "not minor" because it involves (at least) the partial rupture of cartilage.

19. [24]

    The assessor does not explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, where injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. If there is an approach which yields a different conclusion it should have been explained by the assessor. The assessor does not specify the process of reasoning or the actual path by which he arrived at a conclusion in direct conflict with the statutory definition.

20. [25]

    Section 1.6 of the MAIA allows the making of regulations which "include a specified injury as a soft tissue injury": s. 1.6(4)(b) (or exclude a specified injury: s 1.6(4)(a) and 1.6(4)(b)). The MAIA empowered the making of regulation Pt 1 Cl 4(1) by which injury to a nerve root was deemed a soft tissue injury, noting that but for the regulation injury to a nerve would not be a minor injury. There is no regulation which makes a disc injury a soft tissue injury.

21. [26]

    Subsection (5) of s.1.6 of the MAIA provides:

22. [27]

    The power conferred by this subsection is one confined to “making provision for or with respect to assessment.” It does not empower making provision for or with respect to what is or is not a minor injury. Using the Motor Accident Guidelines (‘the guidelines’) to change the meaning of "minor injury" is not permitted. The mechanism for changing the meaning of minor injury is through amendment of the Act or Regulations. Given the significant consequences which altering the meaning of this term may have for a claimant's entitlements it is not surprising that a more formal and legally transparent mechanism has already been provided.

23. [28]

    The assessor discarded the possibility of the injury being non-minor by reason of the absence of radiculopathy.

24. [29]

    If clause 5.9 of the guidelines is read to recognise that the injury to the neck or spine with which it deals is one to the nerve roots it would not be ultra vires.

25. [30]

    Clause 5.9 provides:

26. [31]

    If it is construed in this way, it provides "for or with respect" to the assessment of whether a nerve root injury is a minor injury and so is within s. 1.6(5) of the MAIA.

27. [32]

    However, since the injury the plaintiff was assessed to be suffering was not a nerve root injury but a disc injury it had no role to play.

28. [33]

    The next decision and the one to which judicial review is applicable to the subject of judicial review is that of the delegate.

29. [34]

    The plaintiff applied for a review of the Medical Assessor's decision pursuant to s 7.26 of the MAIA. It relevantly reads:

30. [35]

    Section 63(7) of the Motor Accidents Compensation Act 1999 (NSW) is as follows:

31. [36]

    Rule 133A(2) of the PIC Rules reads:

32. [37]

    The grounds of judicial review in relation to the delegate’s decision 13 October 2023 are:

33. [38]

    The first consequence of a claimant suffering only "minor injury" is that he is not entitled to statutory benefits more than 26 weeks after the accident: MAIA s 3.11(1)(b). The second is that the claimant is not entitled to damages: MAIA s. 4.4. The current version of s 3.11 of the MAIA has been amended to 52 weeks after the accident.

34. [39]

    Of the above assessments, the plaintiff challenged the Assessor’s decision by way of an application for review under s 7.26 of the MAIA. The delegate considered the application to have been lodged late and determined to refuse an extension of time because she considered it had minimal prospects of success.

35. [40]

    The plaintiff challenges the certificate in so far as it determined that the injury to the cervical spine suffered by the plaintiff is minor, within the meaning of the MAIA. He also challenges the conclusion the application for review was lodged late and that the delegate was not justified in refusing the extension of time because of the application's limited prospects of success.

36. [41]

    Paragraphs [1]-[22] of the delegate’s decision reads as follows:

37. [42]

    Under the heading ‘Injustice’, paragraphs [25]-[36] of the delegate’s decision then reads as follows:

38. [43]

    The assessor was required to set out lawful reasons in accordance with their statutory obligations, forming their jurisdiction, which is informed by the common law. Section 7.23(7) of the Act relevantly reads:

39. [44]

    In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (‘Wingfoot’) the High Court emphasised the need for a written statement of reasons given by a medical panel under the Accident Compensation Act 1985 (VIC) to explain "the actual path of reasoning" (at [55]):

40. [45]

    The specific battleground between the parties may inform the content of the duty to give reasons. In Allianz Australia Insurance Ltd v Francica [2012] NSWSC 1577 (‘Francica’), Hall J said, at [17]-[18]:

41. [46]

    In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [19]-[22] , Basten JA (with whom McColl and Macfarlan JJA agreed) (‘Cervantes’) said:

The plaintiff’s submissions – was the application lodged in time?

1. [47]

   On 23 August 2022 the plaintiff's solicitors took the steps necessary to lodge an application to review the Certificate using the Personal Injury Commission portal as required by the governing legislation: PIC Rules r 23.

2. [48]

   The delegate was satisfied the plaintiff's solicitors took all the steps necessary, and which the plaintiff could take, to "lodge" the Application for Review of the Certificate within time: Delegate's decision at [22]”.

3. [49]

   The delegate did not deal specifically with the primary submission of the plaintiff to the effect that having taken those steps the Application had been lodged within time. There is no determination by the delegate of the issue. The fact the delegate proceeds to the merits of the Application implies acceptance of, either,

4. [50]

   The delegate ought to have concluded the Application was lodged within time. The failure to come to this decision is an error of law on the face of the record because the delegate did not construe the PIC rules correctly. As a result, she should have held the Application to have been made within time and "remitted" the matter to allow the normal review procedure to occur. There is jurisdictional error because on the proper construction of the PIC rules the delegate was not confronted with the question as to extension of time for lodging the Application.

5. [51]

   The PIC rules provide that a document lodged with the Commission is received at the time "of entering the information system at the Commission": r 26(1)(a). That time is when the application is submitted using the identified and mandated ECM since, on the evidence, whether it is accepted or not, it has entered the "information system".

6. [52]

   Nothing more needed to be done by the plaintiff’s solicitors and nothing more could be done by them consistent with the rules. The fact the commission may not have processed "the application" on or within its computer system or that it did not have a hard copy of the application after lodgement does not mean the application was not lodged. In order to be lodged the application needed to do no more than enter the information system.

7. [53]

   The plaintiff's primary contention is that the application was lodged on time and the usual review process should have been accepted.

8. [54]

   The only question before the delegate was whether to extend time under 133A of the PIC rules. She was not charged with determining the application for review. This meant she was required to take a broader view of the question of injustice than she took because she was not the decision maker on the substantive application and such applications involve the subjective satisfaction of the president, or his delegate, as to the existence of reasonable cause to suspect error.

9. [55]

   Neither of the ways of putting the test encompasses the actual gateway applied by the rules which requires, only, reason to suspect material error.

10. [56]

    The proper test is that if there was any prospect of the president being satisfied as to error in the certificate the delay caused substantial injustice because the effect of the certificate was to terminate the plaintiff's rights to benefits of all types.

11. [57]

    Review of the certificate would open the door to the plaintiff having her injury determined to be non-minor and entitle her to have her whole person impairment assessed, following which she may be entitled to damages.

12. [58]

    The threshold for ordering a review was and is "reasonable cause to suspect that the medical assessment was incorrect in a material respect": MAIA s 7.26(5).

13. [59]

    In practical terms the delegate was required to ask whether if time for the application were not extended the plaintiff would suffer demonstrable and significant injustice, the test of which was whether it was open to think the President might have reasonable cause to suspect material error. Since, for the reasons above, there was every chance of the President (or his delegate) being so satisfied, the delegate committed jurisdictional error and error on the face of the record by not posing the correct question for consideration.

14. [60]

    Because the delegate was concerned with the merits of the certificate and was not confined to its lawfulness it is relevant to evaluate whether what the assessor said in the certificate was factually accurate. If it was not, then the delegate fell into error because the jurisdiction of the President under s. 7.26(5) pf the MAIA was to refer the matter whether the material error was factual or legal.

15. [61]

    The proper officer should have had regard to in determining whether the President or his delegate could form the view there was reason to suspect the medical assessment was incorrect in a material respect, then there is jurisdictional error in that the Proper Officer determined the question of leave by reference to the wrong test but also failed to exercise jurisdiction when it was present.

16. [62]

    The delegate stated at [8] to [10], the certificate in this matter was issued on the Personal Injury Commission’s portal on 26 July 2022. Twenty-eight days is 23 August 2022. The application to refer the medical assessment to a review panel was lodged outside the 28-day time frame required under s 63(7) of the MAIA. Hence the delegate determined that the application was lodged out of time.

17. [63]

    The delegate set out the two limbs to consider when determining an extension of time applications that must be considered. They are:

18. [64]

    The explanation for delay was that on 23 August 2022, the plaintiff’s solicitor made contact with the commission to try to upload the application. This solicitor was finally able to upload the application on 26 August 2022. Had the online filing system been operating as it should, the plaintiff’s application would have been lodged on the last day, that is day 28, which is in a stipulated time period.

19. [65]

    At [22], the delegate acknowledged the applicant’s submissions in relation to technical issues encountered that attempts were made to lodge the application on 23 August 2022, but did not make a decision as to whether the application was lodged in time or whether in these circumstances, an extension of time to lodge the application should have been granted.

20. [66]

    Rather, the delegate formed the view that after a consideration of the grounds for the application to refer the medical assessment to a review panel, that the application does not have reasonable prospects of success. The delegate considered that this mitigates any prejudice arising from the loss of opportunity to lodge the application.

21. [67]

    The applicant put in issue before the delegate, the Assessor's determination of "soft tissue injury" to the lumbar spine and cervical spine and submits that considering the pathology and evidence of disc injury post-dating the accident, some explanation was required as to why the injuries were determined to be soft tissue injuries. As previously set out “soft tissue injuries are considered to be minor injuries”.

22. [68]

    At [30], the delegate stated that while the Assessor notes the pathology indicating disc injury at the cervical and lumbar spine, he does not consider the Assessor was required to provide any further reasoning as to why he determined these injuries to be soft tissue injuries, for the purposes of the assessment he was conducting which related to minor injury only. They considered the Assessor has provided sufficient reasons as to why the injuries met the definition of minor injury for the purpose of the medical assessment that was before him.

23. [69]

    It is my view that the Assessor misdirected himself when he omitted to consider the entirety of the findings of the MRI scan to the plaintiff’s cervical spine, namely, an assessment of the individual disc levels throughout the cervical spine is notable for broad-based disc protrusion at C5/C6. This indents the ventral thecal sac and is not associated with central canal compromise. Had he fully appreciated the report of the MRI scan to the plaintiff’s cervical spine, he would have appreciated that there was a disc protrusion at C5/C6 and this indents the ventral sac. The ventral sac is a membranous sheath or tube of dura mater surrounding the spinal cord. A disc is comprised of cartilaginous material. This injury is not one that falls within the definition of a minor injury. In any event, the assessor did explain the relationship between a disc protrusion, the protrusion of disc material by reason of the partial or complete rupture of the cartilaginous tissue comprising it, indentation of the thecal sac and the definition of minor injury, where injury to cartilage, which is what a disc is, is not a minor injury by reason of the statutory definition. This ground of review was raised before the delegate.

24. [70]

    As set out earlier, the Delegate’s response is that while the Assessor notes the pathology indicating disc injury at the cervical and lumbar spine, I do not consider the Assessor was required to provide any further reasoning as to why he determined these injuries to be soft tissue injuries, for the purposes of the assessment he was conducting which related to minor injury only. I consider the Assessor has provided sufficient reasons as to why the injuries met the definition of minor injury for the purpose of the medical assessment that was before him.

25. [71]

    Further, I agree with the applicant that if there is an approach which yields a different conclusion it should have been explained in the reasons given by the assessor. The assessor does not specify the process of reasoning or the actual path by which he arrived at a conclusion in direct conflict with the statutory definition.

26. [72]

    Additionally, the Guidelines cannot override the specific statutory provision which defined a rupture or partial rupture of cartilage to be a non-minor injury. To the extent it seeks to do so it is ultra vires.

27. [73]

    However, before dealing with whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, it was enough to find that the application was actually lodged in time. It is my view that the Delegate has erred in law on the face of the record. The certificate of the Delegate dated 13 October 2022, should be set aside.

28. [74]

    The mater is remitted to the President of the Personal Injury Commission to be dealt with according to law.

29. [75]

    It is my view that the delegate, had they properly addressed this issue, would have concluded that there were grounds that the assessment was incorrect in a material respect.

30. [76]

    Costs are reserved. As the first defendant consented to the orders sought, the appropriate order for costs is that costs are reserved.

    1. (1)

       The delegate’s decision dated 13 October 2022 is set aside.

    2. (2)

       The matter is remitted to the President of the Personal Injury Commission to be dealt with according to law.

    3. (3)

       Costs are reserved.