Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole

By amended summons filed on 7 April 2025, the plaintiff, Insurance Australia Limited trading as NRMA Insurance as agent for the Nominal Defendant (the insurer), seeks to challenge the following:

Each of the defendants has filed a submitting appearance.

Before setting out the background to the current proceedings, I propose to outline the statutory scheme established by the Motor Accident Injuries Act 2017 (NSW) (the Act), which applies to motor accidents which occurred after 1 December 2017: s 1.8. Unless otherwise indicated, all references to legislation in these reasons are to the Act.

No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%: s 4.11. If there is a dispute, damages may not be awarded for non-economic loss until a medical assessor appointed by PIC has carried out an assessment of permanent impairment under Division 7.5: s 4.12. Under Sch 2, cl 2(a), the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment exceeds 10%) is declared to be a “medical assessment matter” for the purposes of Part 7 (entitled “Dispute Resolution”). In Part 7, a medical dispute means, relevantly, a dispute between a claimant and an insurer about a medical assessment matter: s 7.17(a).

A medical dispute about a claim may be referred to the President for assessment by either party to the dispute: s 7.20(1)(a). The President is to arrange for the dispute to be dealt with by one or more assessors: s 7.20(2). The President is empowered to appoint medical assessors for the purposes of the Act: s 33(1)(b) of the Personal Injury Commission Act 2020 (NSW) (the PIC Act).

The claimant and the insurer must provide to the medical assessor such information as the assessor may reasonably require for the purposes of the medical assessment: s 7.20(4).

Section 7.21 provides in part:

Section 7.23(1) requires a medical assessor to whom a medical dispute is referred to give a certificate as to the matters referred for assessment. A certificate is to set out the reasons for any finding by the medical assessor as to any matter certified in the certificate in respect of which the certificate is conclusive evidence: s 7.23(7).

A medical assessment may be reviewed by a review panel but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application: s 7.26(5). The President may delegate this function: s 18(1) of the PIC Act.

Pursuant to s 7.26(5A), the President is empowered to constitute a review panel. The review of a medical assessment is not limited to the particular aspect that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned: s 7.26(6). The review panel may confirm the certificate of the medical assessor or revoke it and issue a new certificate: s 7.26(7).

Clause 6.9 of the Motor Accident Guidelines (the Guidelines) provides:

Clauses 6.17 and 6.18 of the Guidelines provide:

Clause 6.121 of the Guidelines (which is relevant to ground 4) provides:

On 8 April 2021, the claimant applied to the insurer for personal injury benefits for injuries alleged to have been sustained in a motor accident on 10 March 2021. On 28 February 2023, the claimant claimed damages under common law (being damages claimed for non-economic loss) for such injuries on the basis that he had suffered a WPI of greater than 10% as a consequence of injuries which he alleged that he had sustained in the motor accident.

The material which the claimant submitted with his claim included a medical report of Dr James Bodel, an orthopaedic surgeon, who relevantly diagnosed that the claimant had suffered “a soft tissue injury … to the back”. Of the issue of lumbar spinal fractures, Dr Bodel said:

The claimant’s application also included CT scans which had been performed on the day of the accident at Goulburn Base Hospital which reported:

The insurer relevantly disputed that the claimant had sustained the alleged lumbar spine injury in a motor accident or that any such injury was sustained as a result of what occurred on 10 March 2021. The insurer pointed to the absence of contemporaneous references to any injury to the lumbar spine in the ambulance or hospital records and submitted (relying on Dr Todd Gothelf’s report) that, if any injury to the lumbar spine had been suffered, it was a soft tissue injury. The insurer relied on the delay of 27 days between the motor accident and the day on which the claimant first reported symptoms relating to his lower back.

The insurer’s rejection of the claim for damages for non-economic loss, gave rise to a medical dispute about a medical assessment matter within the meaning of s 7.17.

On 12 July 2024, the claimant applied for a determination of the medical dispute, as he was entitled to do under s 7.20(1)(a) of the Act. Relevantly, his application described the injury to his lumbar spine in the following terms:

The insurer filed its reply on 5 August 2024. Under the heading, “Disputes”, the insurer said:

In relation to the claimant’s lumbar spine, the insurer disputed that the claimant sustained an injury to his lumbar spine as a result of the motor accident and submitted that, in any event, the injury did not give rise to any assessable impairment.

The President referred the assessment of the claimant’s injuries to the medical assessor, as required by s 7.20(2). The injuries which were referred relevantly included, with respect to the lumbar spine: “fracture of the transverse processes at L1 and L2 and soft tissue injuries”. The referral reflected the ambit of the claimant’s claim with respect to his lumbar spine.

The medical assessor examined the claimant on 25 November 2024 and issued a certificate on 2 December 2024. She made the following assessment with respect to injuries alleged to have been sustained by the claimant to his lumbar spine:

In her reasons, the medical assessor referred to CT scans which were taken on the day of the accident (10 March 2021) and said of present relevance:

The medical assessor also referred to scans of the claimant’s abdomen which were taken two days later on 12 March 2021 and said:

In her summary of imaging and other investigations, the medical assessor said:

Under the heading “Summary of injuries referred by the parties”, the medical assessor said:

Under the heading “Determinations – Permanent Impairment”, the medical assessor said:

Another medical assessor, Dr Michael McGlynn, assessed the claimant’s WPI from skin scarring and facial injuries to be 6%. Together with the 5% for the lumbar spine injury, the claimant’s WPI is 11%. As this exceeds 10%, the claimant is entitled, subject to successful challenge, to damages for non-economic loss.

On 15 January 2025, the insurer applied to the President for a review of the medical assessment by a review panel pursuant to s 7.26(1), alleging, in its submissions, that the assessment was “incorrect in a material respect”: s 7.26(2). On 6 February 2025, the claimant lodged his reply to the insurer’s application.

On 17 February 2025, the delegate of the President rejected the insurer’s application on the basis that the delegate was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.

On 18 March 2025, the insurer filed a summons in this Court to challenge the decisions of the medical assessor and the President. As noted above, there is no active defendant as all defendants have filed submitting appearances.

The insurer sought to challenge the respective decisions on the following grounds:

Ms Gumbert, who appeared for the insurer, accepted that it was not necessary for the Court to determine all grounds and that it was sufficient for the Court to determine grounds 1(a) and (b) and ground 5.

Unless an extension of time is granted, proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision: Uniform Civil Procedure Rules 2005 (NSW), r 59.10. The plaintiff challenges the decision of the medical assessor made on 2 December 2024 and the decision of the President’s delegate made on 17 February 2025. As the summons was not filed until 18 March 2025, the plaintiff requires an extension of time in respect of the challenge to the medical assessor’s decision.

It was both reasonable and appropriate for the plaintiff not to challenge the medical assessor’s decision under s 69 of the Supreme Court Act 1970 (NSW) until the delegate’s decision had been made, since the review panel was obliged to conduct its own assessment and might have corrected the alleged error: Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [84]-[86] (Beazley JA, McColl and Macfarlan JJA agreeing), applied in Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077; (2021) 97 MVR 229 (Stanizzo) at [18].

Once the insurer’s avenue for review was removed by the delegate’s refusal to refer the medical dispute to a review panel, the plaintiff was entitled to seek relief in this Court under s 69 of the Supreme Court Act. Its delay was entirely explicable and the extension required relatively short. The extension is not opposed. In these circumstances, it is appropriate to extend time for the filing of the summons to 18 March 2025.

In order to challenge either of these decisions under s 69 of the Supreme Court Act or in the Court’s inherent jurisdiction, the insurer must establish that the decision-maker has committed an error of law on the face of the record or a jurisdictional error.

Section 69 relevantly provides:

At common law, the reasons of the decision-maker do not form part of “the record”. In the present case, the medical assessor is required to give reasons and such reasons form part of the certificate: s 7.23(7). The effect of s 7.23(7) is to include the medical assessor’s reasons in the record since they are part of the certificate and the certificate is the record: Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing). In these circumstances, the insurer did not need to rely on the extended definition of record in s 69(4) of the Supreme Court Act in its challenge to the medical assessor’s decision.

As it could not be said that the decision of the delegate to refer (or not refer) an application for review to a review panel constitutes “the ultimate determination of a court or tribunal in any proceedings” within the meaning of s 69(3) of the Supreme Court Act, the expansive definition of the “record” in s 69(4) is not available to the insurer’s challenge to the President’s decision not to refer the matter to a review panel. Nor is there an equivalent provision to s 7.23(7). Accordingly, in order to obtain relief in respect of the delegate’s refusal to refer the application to a review panel, the insurer must establish jurisdictional error.

The ambit of the dispute which was referred to the medical assessor is evident from the terms of the referral. It accorded with the claimant’s claim with respect to injuries to his lumbar spine and corresponded with the insurer’s rejection of the claim. Thus, the terms of the referral reflected the “medical dispute” between the parties. In these circumstances, the referral delineated the ambit of the medical assessor’s jurisdiction. It was an error for the medical assessor to include a matter which was not within the ambit of the referral: see Scone Race Club Ltd v Cottom [2024] NSWCA 34 (Scone) at [53] (Basten AJA, Gleeson and Mitchelmore JJA agreeing).

While there may be cases where the ambit of the referral is a question of fact which is for the assessor (or review panel) to determine, the present case is not one of them since the injuries referred were stated with precision and did not include a fracture to the L2. Nor did the medical reports submitted by either the claimant or the insurer indicate that there had been a fracture to the claimant’s L2.

This case is to be distinguished from a case such as Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates) where the terms of the referral made no reference to the wrist injury although it had been claimed in the worker’s application filed in the Workers Compensation Commission and was referred to in the medical reports relied on by the parties. The Court of Appeal (Basten JA, Leeming JA agreeing) held that, in those circumstances, the Appeal Panel was in error in failing to assess the wrist injury, which formed part of the claim.

Basten JA said of present relevance:

In Scone, the worker applied to admit late documents for the Appeal Panel’s consideration. The question arose whether the Appeal Panel had considered this application, no reference having been made to them in its reasons. The Court of Appeal accepted the employer’s submission that the documents were irrelevant because they related to the worker’s back injury and the only injury which had been referred to the medical assessor (against whose assessment the worker sought to appeal to the Appeal Panel) was the injury to the worker’s right knee. Basten AJA said:

The decision of Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 (Mandoukos) is to similar effect. In that case, the medical dispute which was referred for assessment did not include the removal of bone during a foraminotomy procedure (which was the basis for the claimant’s allegation that he suffered radiculopathy as a result of the accident). Stern JA (Leeming and Kirk JJA agreeing) said at [78]:

Thus, the medical assessor in Mandoukos was held not to be in error in not considering this alleged injury: [96]-[97]. Further, the Court held that it was open to the President’s delegate not to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. This question did not turn on whether the medical assessor’s error was jurisdictional: [101].

I consider that the error alleged in ground 1(a) (that the assessment exceeded the parameters of the referral) was both an error of law on the face of the record (since it is plain from the reasons that the error of law was made) and a jurisdictional error.

This error amounted to a jurisdictional error in the sense described in Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [95] (Gleeson JA, Macfarlan and Leeming JJA agreeing):

In the present case, the medical assessor mistook the extent of her jurisdiction by including an injury in her certificate which had not been referred to her expressly; and which did not fall within the ambit of what had been referred to her: Craig v South Australia (1995) 184 CLR 163 at 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58. This error was not one of fact since it was not the result of the medical assessor’s construction of the terms of the referral as a matter of her professional judgment (as was referred to by Basten JA in Skates at [31]), but rather was one of jurisdiction because the medical assessor disregarded the terms of the referral and, in doing so, went outside the bounds of the medical dispute between the parties. In this respect, the medical assessor constructively failed to exercise her jurisdiction by failing to assess the actual medical dispute which had been referred to her for assessment and, instead, assessing a matter which had not arisen, whether by way of dispute or otherwise.

This error is sufficient to warrant an order that the certificate be set aside and that the matter be remitted to the President to be referred to a different medical assessor for assessment in accordance with law.

It is not necessary to determine whether there are circumstances in which it may be lawful for a medical assessor to go beyond the terms of a referral since it was not suggested that there were such circumstances in the present case. Procedural fairness would, in any event, require the medical assessor to put the parties on notice of the possibility that the medical assessor proposes to go beyond the terms of the referral before a decision is made. Procedural fairness is addressed below with respect to ground 1(b).

The insurer submitted that the medical assessor failed to accord procedural fairness to the parties by failing to put them on notice that she proposed to assess an injury that was beyond the scope of the medical dispute referred for assessment.

A failure to accord procedural fairness can amount to jurisdictional error: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41] (Gleeson CJ), [142] (Kirby J) and [170] (Hayne J).

In the context of an assessment under the Act or its equivalent, if a medical assessor proposes to go beyond the dispute between the claimant and the insurer which has been referred for assessment, procedural fairness requires the medical assessor to inform parties of that intention before making the assessment. Practical justice requires that, in this event, the parties be given the opportunity of making submissions and, potentially, adducing further evidence: McKee v Allianz Australia Insurance Ltd (2008) 71 NSWLR 609; [2008] NSWCA 163 at [8] (Allsop P) and Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41] (Leeming JA, Beazley P and Basten JA agreeing). Had this occurred, the parties in the present case could, for example, have informed the medical assessor that a fracture to L2 did not form part of the referral and that neither party contended that a L2 fracture constituted an injury or impairment caused by the motor accident. The denial of procedural fairness was central to the medical assessor’s assessment. The insurer has also made out jurisdictional error on this ground.

As referred to above, it is not necessary to address grounds 2-4 since the decision of the medical assessor must be set aside by reason of the errors identified in ground 1(a) as well as in ground 1(b).

I accept the insurer’s submission that, once the medical assessor’s decision is set aside, the decision of the delegate falls away since it is founded on the validity of the medical assessor’s decision: see Stanizzo at [16]. For this reason, it is both necessary and appropriate that it be set aside.

As ground 5 has been made out, Ms Gumbert accepted that it is not necessary to determine ground 6.

As all defendants have filed submitting appearances, Ms Gumbert accepted that it is appropriate that there be no order as to costs.

I accept Ms Gumbert’s submission that, on the basis of the matters referred to in Stanizzo at [17], the matter ought be remitted for referral to a medical assessor other than the second defendant. This course would avoid any suggestion of apprehension of bias which might arise were the matter to be referred to the second defendant for re-assessment.

For the reasons given above, I make the following orders: