Matthes v The Nominal Defendant

1. [1]

   HER HONOUR: This is a judicial review of a decision of a Proper Officer of the State Insurance Regulatory Authority (“SIRA”) under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”).

2. [2]

   By amended summons filed 15 August 2020, the plaintiff seeks:

   1. (1)

      an order under s 69 of the Supreme Court Act 1970 (NSW) setting aside the determination and reasons of Alexander Tilley in his role as Proper Officer of SIRA (“the Proper Officer”) dated 9 June 2020; and

   2. (2)

      an order in the nature of mandamus remitting the matter to the second defendant for referral to a Review Panel of three Assessors.

3. [3]

   The plaintiff is Patrick James Matthes. The first defendant is the Nominal Defendant (“the insurer”). The second defendant is SIRA. The third defendant is the Proper Officer. The second and third defendants filed submitting appearances. The parties relied upon their written submissions and a joint court book. The plaintiff also relied upon the affidavit of his solicitor dated 20 October 2020.

Background

1. [4]

   On 5 June 2015, the plaintiff was injured in a high-speed motor accident when the car he was driving was struck from behind on a highway, causing him to swerve across two lanes into oncoming traffic. He has no recall of the accident.

2. [5]

   On 27 March 2019, the plaintiff was assessed by Assessor Mark Burns (“the Assessor”) and found to have injuries to his right ankle, right knee and scarring caused by the accident which gave rise to a Whole Person Impairment (“WPI”) of 5%. The plaintiff’s lumbar spine was not referred for assessment.

3. [6]

   On 10 October 2019, the plaintiff made an application for “further assessment” under s 62 of the MAC Act, this time including “lower back” as an injury for assessment. This application was accepted and the matter was allocated to the Assessor for re-assessment.

The Assessor’s determination and reasons

1. [7]

   On 11 February 2020, the Assessor re-assessed the plaintiff. On 14 February 2020, the Assessor issued his determination and reasons.

2. [8]

   Although the Assessor’s decision is not challenged in these proceedings, it informs the bases of review before the Proper Officer and is relevant to this judicial review. The Assessor’s reasons in relation to the plaintiff’s lower back injury are as follows.

3. [9]

   Under the heading “History of Symptoms and Treatment Following the Motor Accident”, the Assessor relevantly stated (CB 256):

4. [10]

   Under “Findings on Clinical Examination”, the Assessor relevantly continued (CB 257-8):

5. [11]

   Under “Consistency of Presentation”, the Assessor stated:

6. [12]

   The Assessor then relevantly summarised the medicolegal report of Dr Harrison, orthopaedic surgeon, dated 1 June 2017. This report, which had been provided in respect of the initial medical assessment, did not assess permanent impairment in relation to the lumbar spine.

7. [13]

   The Assessor then set out the additional documentation provided for the further assessment. He summarised the further report of Dr Harrison as follows (CB 261):

8. [14]

   The Assessor also summarised the additional medical report of Associate Professor Wong, general surgery consultant, stating (CB 261-2):

9. [15]

   The Assessor relevantly concluded (CB 262):

10. [16]

    Having set out his reasons, the Assessor again found the plaintiff to have injuries to his right ankle, right knee and scarring caused by the accident which give rise to a permanent impairment of 5% WPI.

The application for review to the Proper Officer

1. [17]

   On 30 March 2020, the plaintiff filed an application for a review of the Assessor’s decision. The application was only in relation to his lower back injury. The plaintiff sought a review on the basis that the assessment was incorrect in a material respect in failing to find that his lumbar spine injury was causally related to the accident.

2. [18]

   The plaintiff’s primary submissions were that the Assessor did not reveal a reasoning process for his finding in respect of the lumbar spine injury, save for the reference to the complaint not having been made 3½ years earlier.

3. [19]

   The plaintiff relied on the opinions of Dr Harrison and Dr Wong, as summarised in the Assessor’s report. The plaintiff submitted that the Assessor provided no reasons for rejecting of the opinions of Dr Harrison and Dr Wong as to causation, and failed to engage with the reasoning of Dr Harrison summarised in the Assessor’s report.

4. [20]

   It is the plaintiff’s case that the Assessor appeared to have excluded any relationship between the motor accident and the lumbar spine injury solely on the basis that the complaint of back pain was made 3½ years after the accident. The plaintiff submitted that the delayed complaint, while relevant, should not have been determinative, especially in light of the differing medical opinions.

5. [21]

   The insurer made submissions in its reply to the plaintiff’s application for review. It submitted that the further certificate of the Assessor was not incorrect in a material respect and sought for the application to be dismissed.

6. [22]

   The insurer noted that the Assessor took a history from the plaintiff that he “had not reported pain to his General Practitioner and has had no investigations or treatment” in respect to the alleged lumbar spine injury. The Insurer submitted there is no contemporaneous evidence of any lumbar spine injury complained of to enable the Assessor to accept causation of the injury.

7. [23]

   The Assessor had also taken a history from the plaintiff that he had referred himself in mid-2019 to obtain massage therapy for his lower back pain. The insurer submitted that the plaintiff’s own delayed reporting of lower back pain and obtaining treatment by approximately 4 years after the accident confirmed that the Assessor was correct in determining the injury was not caused by it.

8. [24]

   The Assessor had also addressed all the evidence provided for the further assessment, including the new evidence from Dr Harrison and Dr Wong. The insurer highlighted where the Assessor referred to the findings of each expert and comments on what was present at the assessment as well as differences between his findings compared to the plaintiff’s experts. The insurer submitted that the Assessor provided his reasoning of why he did not accept the findings of the plaintiff’s experts and did not err on his finding of causation.

The Proper Officer’s decision

1. [25]

   On 9 June 2020, the Proper Officer dismissed the plaintiff’s application for review. In his reasons for the decision, the Proper Officer set out a background of the dispute and stated at [4] (CB 23):

2. [26]

   He then set out the issues in dispute and the Assessor’s reasons. He continued at [9]:

3. [27]

   The Proper Officer then summarised the parties’ submissions as set out earlier in this judgment. Then, under the heading “Findings”, he concluded at [18]-[32]:

The “gatekeeper” function under s 63(3) of the MAC Act

1. [28]

   Section 63(3) of MAC Act gives the Proper Officer a “gatekeeper” function in the consideration of applications for review to a Review Panel. Section 63 relevantly states:

2. [29]

   In relation to s 63(3) of the MAC Act, counsel for the plaintiff referred to two cases: Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 (“Meeuwissen”) and Elliott v Insurance Australia (t/as NRMA Insurance) [2014] NSWSC 1848 (“Elliott”).

3. [30]

   In Meeuwissen, the Court of Appeal (per Basten JA with Beazley P and Sackville AJA agreeing) set out the principles which inform judicial review of a proper officer’s function at [19]–[24]. They may be summarised as follows:

   1. (1)

      The question of correctness relates not to the certificate which results from the medical assessment, but to the medical assessment itself.

   2. (2)

      The phrase “in a material respect” in s 63(3) of the MAC Act is not as precise as the statutory test fixed by s 62(1A) concerning referrals for further assessment.

   3. (3)

      It is generally accepted that the phrase “in a material respect” means “the error is material to the decision in the sense that it contributes to it, so that, but for the error, the decision would have been, or might have been, different”: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”) at 353.

   4. (4)

      The question of materiality connoted by that phrase extends to errors that could not be dismissed “as trivial, insignificant or immaterial”.

   5. (5)

      The power conferred on the proper officer is not discretionary once the requisite state of satisfaction is achieved. If that occurs, the matter has to be referred for review.

   6. (6)

      It is not for the proper officer to decide whether the medical assessment is incorrect in a material respect, but only that there is reasonable cause to suspect that it is.

4. [31]

   Finally, in Meeuwissen, the Court of Appeal held at [24] that the power conferred on the proper officer is that of a gatekeeper, not a decision-maker. Basten JA continued:

5. [32]

   In Elliott, Campbell J stated at [59]–[62]:

6. [33]

   Also, in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 (“Ballas”) (per Bell P and Payne JA with Emmett AJA agreeing), the Court of Appeal stated at [70]–[72]:

The grounds of judicial review

1. [34]

   The grounds of judicial review are on the basis that the Proper Officer:

   1. (1)

      made a jurisdictional error in dismissing the plaintiff’s application;

   2. (2)

      erred by failing to find that there was reasonable cause to suspect that that the relevant medical assessment was incorrect in a material respect;

   3. (3)

      erred by failing to adhere to the “gatekeeper role” assigned to him, and instead embarked on a review of the substantive merits of the application;

   4. (4)

      misapplied the statutory requirements of s 63(3) of the MAC Act; and

   5. (5)

      on a proper exercise of the jurisdictional requirements of s 63(3), should have referred the plaintiff’s application to a Review Panel.

2. [35]

   Before I turn to consider these grounds of review, it is worth repeating the caution recently expressed in AAI Ltd t/as AAMI v Chan [2021] NSWCA 19 (“Chan”) per Leeming JA (Gleeson JA agreeing) at [41]-[47] that close attention must be given to the formulation of grounds of review in compliance with r 59.4 of the Uniform Civil Procedure Rules 2005 (NSW). Although Chan was published after the hearing of these proceedings, the Court has repeatedly emphasised that the conflation of jurisdictional error and error of law on the face of the record is to be avoided.

3. [36]

   In the pleadings in this case, the plaintiff’s reference to “erred” appears largely to be a reference to jurisdictional error, or in relation to ground 4, an error of law on the face of the record. Ground 2, however, impugns the discretion of the Proper Officer and trespasses into an alleged of error of fact, which is not subject to judicial review in this Court: see Chan at [47]. I will consider these issues as they arise later in this judgment.

4. [37]

   Although phrased differently, the plaintiff’s grounds of judicial review broadly raise two main issues. They are:

   1. (1)

      whether the Proper Officer acted in excess of his statutory duty pursuant to s 63(3) of the MAC Act; and

   2. (2)

      whether his decision was otherwise made according to law.

5. [38]

   I will now consider these issues in turn.

6. [39]

   The plaintiff submitted that the Proper Officer’s role was not to decide whether the medical assessment was incorrect in a material respect, but only that there was reasonable cause to suspect that it was. It is the plaintiff’s case that the Proper Officer went beyond exploring the matter of the basis of reasonable suspicion under s 63(3) of the MAC Act, and instead determined the matter by stating simply whether he “agreed”. The plaintiff argued that the Proper Officer fell into the type of jurisdictional error described in Shmailov v AAI Limited [2020] NSWSC 887 (“Shmailov”), where the proper officer’s decision constituted her own determination of the merits of the application.

7. [40]

   The plaintiff submitted that applying the principles enunciated in Meeuwissen, jurisdictional error has occurred in the exercise of the statutory task assigned to the Proper Officer. Once the requisite state of satisfaction is achieved, the matter must be referred for review. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts.

8. [41]

   The insurer submitted that the Proper Officer’s decision demonstrates that he did apply the correct test and did not overstep the limits of his role. The Proper Officer repeatedly used the proper phrasing of the test from s 63(3) of the MAC Act. Reciting the proper test may not be sufficient if, in substance, the Proper Officer has applied a different test. However, the fact that the correct test has been stated is relevant to the consideration of whether the correct test has been applied. As Bell P stated in IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767 (“Chahoud”) at [62]:

9. [42]

   The insurer also sought to distinguish this case from Shmailov, as referred to by the plaintiff. In that case, the Proper Officer had fallen into error by considering whether she agreed that the medical assessment was, in fact, incorrect, rather than considering whether there was reasonable cause to suspect it was. This is because the Proper Officer had gone beyond the gatekeeper role and attempted to apply the relevant Permanent Impairment Guidelines herself so as to determine whether the criteria for certain impairment was satisfied.

10. [43]

    No such error occurred here. The Proper Officer did not attempt to make an assessment of the plaintiff’s impairment himself. Quite to the contrary, the task that he performed was simply to consider whether he was satisfied that there was reasonable cause to suspect that the assessment of the Assessor was incorrect in a material respect. He was not so satisfied, as his reasons properly evince.

11. [44]

    Finally, the insurer submitted that although it may be that the satisfaction of the Proper Officer need not rise above a state of unease as to the correctness of the decision, there is no evidence that the Proper Officer had even that base level of unease, and there is no logical basis for submitting that he ought to have had such a state of unease. Accordingly, it was more than open to the Proper Officer to conclude that he was not satisfied that there was reasonable cause to suspect material error.

12. [45]

    At paras 4 and 9 of his reasons, the Proper Officer correctly set out the statutory test from s 63(3) of the MAC Act before turning to consider the parties’ submissions and the Assessor’s reasons. At para 32 of his reasons, the Proper Officer reiterated the proper statutory language in stating that he was “not satisfied that there was reasonable cause to suspect that the Assessor’s decision was incorrect in a material respect”.

13. [46]

    At the hearing of these proceedings, counsel for the plaintiff submitted that despite his references to the statutory test, the Proper Officer’s reasoning reveals that he misunderstood his statutory task. Mere reference to the proper test will not be sufficient if the reasons evince that the Proper Officer did not apply it: Chahoud at [62].

14. [47]

    In support of this contention, the plaintiff referred to the Proper Officer’s reasons at para 26, where he stated, “I agree with the respondent that the Assessor addresses the findings documented in both doctors’ reports, compared to his own”. At para 29, the Proper Officer continued, “The respondent submits that the Assessor provided his reasoning as to why he did not accept the findings of the report writers. I agree.” As to the issue of causation, at para 30 the Proper Officer stated, “The respondent submits that the Assessor has complied with the relevant clauses of the Guidelines regarding causation. I agree. The Assessor has made a finding on causation of the claimant’s lumbar spine injury in relation to the motor accident, supported by his own path of reasoning.”

15. [48]

    It is the plaintiff’s case that these passages reveal jurisdictional error of the type discussed in Meeuwissen and Shmailov. In that case, the proper officer considered an application for review of a decision involving the categorisation of the plaintiff’s impairment on a rating scale. In addressing the parties’ submissions, the proper officer had stated, “I do not agree”. She then continued to apply those categories herself to the plaintiff’s evidence, and expressed her view that he maintained the level of impairment as categorised by the Assessor.

16. [49]

    In considering the proper officer’s decision on judicial review in this Court in Shmailov, I expressed the view that it was not the proper officer’s task to assess whether the claimant satisfied certain criteria of impairment (at [101]), and that by doing so she acted in excess of her statutory role under s 63(3) of the MAC Act and fell into jurisdictional error.

17. [50]

    However, in my view the decision of the Proper Officer in these proceedings is not analogous to Shmailov. Although the Proper Officer’s language of agreement hollowly mirrors that of the proper officer in Shmailov, the content of his reasoning does not. In this case, the Proper Officer at [26], [29] and [30] has expressed his agreement with the parties’ submissions by reference to their arguments. He has not, as in Shmailov, purported to determine the matter as if it were before him for assessment. By reference to the material before him, the Proper Officer explained why he did not reach the requisite suspicion that the Assessor’s decision was incorrect in a material respect. This is exactly what the Proper Officer was required to do in considering applications under s 63(3) of the MAC Act. His reasons disclose no jurisdictional error on this ground of review.

18. [51]

    The plaintiff submitted that his application before the Proper Officer advanced a cogent argument that the Assessor did not engage with his medico-legal case as to causation of his lower back injury. It was not for the Proper Officer to determine the matter on the basis that he did not agree. Rather, the Proper Officer was required by the statute to exercise his gatekeeper role.

19. [52]

    The plaintiff says that in this case, there was clear reason to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application. That state of satisfaction “…need not rise above anything other than a state of unease”: see Elliott per Campbell J at [59]. The plaintiff says his review application comfortably overcame the undemanding threshold.

20. [53]

    The plaintiff also argued that the alleged errors in the Assessor’s decision were material in the sense that they contributed to it so that, but for the error, the decision would have or might have been different. Neither could the identified errors be dismissed “as trivial, insignificant or immaterial”: Meeuwissen at [25].

21. [54]

    The plaintiff submitted that he has been denied the benefit of having his review application dealt with by a properly constituted and suitably qualified medical review panel.

22. [55]

    The insurer submitted that in considering the exercise of the supervisory jurisdiction in judicial review, an overriding principle is that administrative decision makers are entitled to a beneficial construction. Their decisions must be read fairly and as a whole: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272, 291-292. Further, there is no error of law in making findings that are reasonably open to be made, even where other findings may have been open on the evidence.

23. [56]

    The insurer submitted that review proceedings with respect to the determination of a proper officer “are limited to determining whether the Proper Officer’s opinion has been properly formed according to law”: QBE v Miller [2013] NSWCA 442 (“Miller”) per Basten JA at [36]; Buck v Bavone (1976) 135 CLR 110 at 118-119 (per Gibbs J).

24. [57]

    In Miller at [36], Basten JA cited Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432:

25. [58]

    Although Miller involved an application for further medical assessment under s 62 of the MAC Act, it has been applied to a s 63 decision regarding an application for review of a medical assessment in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171.

26. [59]

    The insurer submitted that the plaintiff made three broad submissions in its application for review before the Proper Officer. The first was that the Assessor had not provided sufficient reasons for his finding in relation to causation of the lumbar spine, and that he did not give reasons for rejecting the opinions of Dr Harrison and Dr Wong. However, the insurer submitted that all that was required of the Assessor was to provide reasons that revealed his actual path of reasoning used to arrive at the findings concluded: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”) at [55]. The insurer submitted that the Assessor’s reasons met this standard. He considered that the plaintiff’s lower back problems did not commence until 3 ½ years after the accident; that he didn’t know the reason for his back pain; and that he had a normal gait when the back problems commenced. On this basis, he concluded that the back injury was not related to the accident.

27. [60]

    The plaintiff’s second broad submission before the Proper Officer was that the Assessor improperly treated as determinative the absence of any complaints concerning the lumbar spine for 3 ½ years after the accident. The insurer submitted that by so doing, the plaintiff appears to have sought a review based on the type of error identified in Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650 (“Owen”), Bugat v Fox [2014] NSWSC 888 (“Bugat”), and AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen (“McGiffen”) [2016] NSWCA 229, which is the error of treating the absence of contemporaneous record of injury as determinative of the issue of causation.

28. [61]

    The insurer submitted that this is not such a case. The authorities that have considered whether it is an error to treat the lack of contemporaneous evidence of complaint of injury as determinative of the issue of causation largely concern situations where the injured person said they had the injury, but the early records do not reflect those complaints. In this respect, Campbell J said in Owen, at [52]:

29. [62]

    A similar situation arose in Bugat, where Hulme AJ stated at [31]:

30. [63]

    Again, the insurer submitted that this is not such a case. There is no suggestion that the plaintiff had problems with his back following the subject accident that were simply not recorded in the evidence. It was the plaintiff’s own evidence to the Assessor was that the back problems commenced some 3 ½ years after the accident.

31. [64]

    In any event, it is quite plain that the Assessor was not concerned only with “contemporaneous” record of injury. Indeed, he considered whether there was any complaint of injury at all, reported or recorded, for the relevant period after the accident.

32. [65]

    In McHenry v Insurance Australia Limited (t/as NRMA Insurance) [2019] NSWSC 68 (“McHenry”), Harrison J said at [59]:

33. [66]

    His Honour continued in McHenry at [62]:

34. [67]

    As Adamson J said in Bradley v Insurance Australia Ltd (t/as NRMA Insurance) [2015] NSWSC 950 (“Bradley”) at [55]:

35. [68]

    The insurer submitted that on this basis, the Assessor was entitled to take the delay of any complaint for more than 3 years into consideration. He did this in conjunction with having regard to the fact that the claimant had no explanation for the onset of back pain, and that the claimant’s gait was normal at the time.

36. [69]

    The insurer submitted that this last point is significant, noting that in McGiffen, the reason the review panel had fallen into error was in failing to consider whether there was a consequential back injury related to gait derangement. The Court said, at [64]:

37. [70]

    The insurer noted that that same question was addressed in these proceedings by the Assessor. He considered whether there was a cause of the back pain other than an immediate injury in the subject accident.

38. [71]

    In this way, his path of reasoning revealed that he was not able to find a causal link between the accident and the onset of back pain some 3.5 years later. The insurer submitted that there was no error in his conclusion in this regard.

39. [72]

    Finally, the insurer submitted that the third alleged error for consideration before the Proper Officer was that the Assessor failed to engage with the report of Dr Harrison. In relation to this ground, the insurer noted that the plaintiff did not point to the source of the alleged duty on the Assessor to “engage” with that opinion. It is well settled that there is no obligation to consider or refer to every piece of evidence: Rodger v De Gelder [2015] NSWCA 211 at [84]-[86]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (“Cervantes”) at [15]-[22].

40. [73]

    In Cervantes, Basten JA said at [22]:

41. [74]

    In any event, the insurer submitted that it is plain on the face of the Assessor’s reasons that the reports of Dr Wong and Dr Harrison were in fact referred to and considered beyond the Assessor’s duty to do so. There was certainly no onus on the Assessor to specifically address why he did not come to the same conclusions as those doctors as to causation of the back injury. To suggest that he did would be to go directly against what the High Court said in Wingfoot at [56]:

42. [75]

    Even though the Assessor’s decision is not challenged, the insurer submitted that the errors that the plaintiff alleged to the Proper Officer were not made out.

43. [76]

    The insurer submitted that the plaintiff appears to assert that simply putting cogent arguments to the Proper Officer regarding what the plaintiff contends to be errors in the Assessor’s decision ought to be sufficient to achieve “satisfaction” the mind of the Proper Officer as to the correctness of those arguments. This submission must be rejected, as it leaves no room for the Proper Officer to reach the necessary state of “satisfaction” as set out in the MAC Act.

44. [77]

    The plaintiff has raised general grounds of review to the effect that the Proper Officer “erred” by failing to find that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. Insofar as these grounds purport to challenge the Proper Officer’s decision of fact, and not a misapplication of his statutory duty under s 63(3) of the MAC Act, they can be dealt with briefly.

45. [78]

    It is true that the power conferred on the Proper Officer is not discretionary once the requisite state of satisfaction is achieved, at which point the matter has to be referred for review: Meeuwissen at [23]. However, whether there is reasonable cause to suspect that the medical assessment is incorrect in a material respect, such that the Proper Officer reaches the requisite state of satisfaction, is a matter for the Proper Officer’s discretion and a question of fact.

46. [79]

    I have already determined that the Proper Officer reached the requisite state of satisfaction under s 63(3) of the MAC Act. To challenge that decision, the plaintiff bears the onus of demonstrating that in the Proper Officer’s opinion was not properly formed according to law: see Miller at [36]. It is not enough for the plaintiff to submit that a different determination could or should have been reached on the evidence. In a judicial review in this Court, even if the Proper Officer was wrong in reaching this state of satisfaction as a matter of fact, that alone would not vitiate his decision: Chan at [66]. Rather, the plaintiff must demonstrate that “the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 (“SGLB”) at [38] (Gummow and Hayne JJ), as applied in Miller at [36].

47. [80]

    As such, the plaintiff’s submissions that his application “comfortably overcame” the statutory threshold under s 63(3), such that it should have created a state of unease in the mind of the Proper Officer, are misguided. It appears to be his position that because his application set out a “cogent argument” that the Assessor’s decision was incorrect in a material respect, it was entitled to be referred to an Appeal Panel. As the insurer submitted, this reasoning would supplant the role of the Proper Officer in reaching the requisite state of satisfaction.

48. [81]

    It is also relevant to this judicial review that the plaintiff has not sought to challenge the Assessor’s decision. It is not for this Court to determine whether that decision contains the errors alleged in the plaintiff’s application before the Proper Officer. However, I have set out the Assessor’s reasons earlier in this judgment so as to provide context to the Proper Officer’s decision in relation to it, which is as follows.

49. [82]

    The plaintiff’s application before the Proper Officer firstly alleged that the Assessor gave insufficient reasons for finding that the injury was not caused by the accident. In addressing this ground, the Proper Officer explained that the Assessor considered that the plaintiff’s lower back problems did not commence until 3 ½ years after the accident; that he had not undergone formalised therapy; that he didn’t know the reason for his back pain; and that he had a normal gait when the back problems commenced. The Proper Officer was satisfied that each of these constituted “relevant points on his path of reasoning” (at [22]).

50. [83]

    As to the plaintiff’s submission that the Assessor did not explain why he rejected of the opinions of Dr Harrison and Dr Wong as to causation, and that he failed to engage with the reasoning of Dr Harrison, the Proper Officer noted at [26] that the Assessor had “address[ed] the findings documented in both doctors’ reports, compared to his own”. The Proper Officer stated at [26]-[27] that the Assessor had also concluded by noting with interest that “Dr Wong’s findings were significantly different from those of Dr Harrison”, before comparing Dr Wong’s findings with his own.

51. [84]

    In Wingfoot, the High Court addressed the obligation of medical review panels (and Assessors) to refer to differing medical opinions at [47], stating:

52. [85]

    This bolsters the Proper Officer’s conclusion at para 29 that in his view, the Assessor “considered the contemporaneous medical documents and…engaged with the opinions of other medical experts in providing reasoning for coming to his own conclusions on causation”.

53. [86]

    Finally, the plaintiff alleged that the Assessor had treated the absence of contemporary complaints of his injury as determinative on the issue of causation. In his decision, in addition to the material already considered, the Proper Officer stated at para 28 that the Assessor had noted the plaintiff’s “‘normal gait’ when lower back pain was reported”. The Proper Officer stated that “This conclusion does not support [the plaintiff’s] submission that only the interval between the accident and the onset of symptoms was determinative in the Assessor’s reasoning”. Rather, it was a conclusion reached on the basis of all of the material before the Assessor, which he was entitled to consider persuasive in the exercise of his medical discretion.

54. [87]

    For these reasons, in my view it cannot be said that the Proper Officer’s determination that he was not satisfied that the assessment was incorrect in a material respect was a decision which was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. Rather, it was a decision which was open to him on the particulars set out in the application. As such, the Proper Officer’s decision discloses no jurisdictional error or error of law on the face of the record.

Result

1. [88]

   The result is that the plaintiff’s judicial review fails.

Costs

1. [89]

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

   1. (1)

      The amended summons filed 15 August 2020 is dismissed.

   2. (2)

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