Raina v CIC Allianz Insurance Limited

1. [1]

   By Amended Summons filed 16 March 2020, the plaintiff, Mr Roshaan Raina, challenges the validity of the decision of a Motor Accidents Medical Assessment Service Review Panel (“Review Panel”), whose members are named jointly as the third defendant in these proceedings. The Review Panel was convened by the proper officer of the second defendant, the State Insurance Regulatory Authority of New South Wales (“SIRA”) under s 63(3) Motor Accidents Compensation Act 1999 (NSW) (“the Act”). Mr Raina is the claimant for motor accident damages for injuries he suffered in a motor accident on 20 September 2017. CIC Allianz Insurance Limited (“the insurer”), the first defendant, is the CTP insurer of the vehicle at fault in the accident. The second and third defendants have entered a submitting appearance in accordance with the usual convention: The Queen v Australian Broadcasting Tribunal and Ors; ex parte Hardiman & Ors (1980) 144 CLR 13; [1980] HCA 13 at 35.

2. [2]

   Mr Raina seeks orders pursuant to s 69 Supreme Court Act 1970 (NSW) in the nature of certiorari setting aside two decisions of the proper officer refusing to reconstitute the Review Panel in accordance with his objection and the Review Panel’s three medical assessment certificates together with an order in the nature of mandamus remitting the matter to SIRA for the reallocation of the claim to a different proper officer for reference to a differently constituted review panel.

Background

1. [3]

   Mr Raina was injured in a motor vehicle accident on 20 September 2017. His stationary vehicle was struck from behind by another vehicle. Mr Raina claimed that he suffered an injury to his cervical spine consisting of a disc prolapse at the C5/C6 level with right-sided C6 radiculopathy. The insurer contended that any injury to the cervical spine was a soft tissue “whiplash” injury only. Mr Raina’s treating neurosurgeon, Dr Andrew Kam, recommended that Mr Raina undergo either a cervical discectomy with artificial disc replacement or a posterior cervical foraminotomy at the C5/C6 level. Dr Peter Bentivoglio, a neurosurgeon qualified to give evidence in the case, recommend that Mr Raina undergo a C5-6 anterior cervical discectomy and fusion. The insurer contended that the surgical procedures proposed by both Dr Kam and Dr Bentivoglio did not relate to any injury caused by the accident and were not reasonable or necessary in the circumstances.

2. [4]

   On 12 April 2018, Mr Raina referred this medical dispute about his degree of permanent impairment to SIRA under s 60 of the Act for resolution by medical assessment. SIRA arranged for the dispute to be assessed by a medical assessor, Professor Alan Home, an occupational physician. SIRA rescheduled several assessments with Professor Home at Mr Raina’s request. On 6 September 2018 the insurer referred the medical dispute about the necessity for spinal surgery and its connection with the motor accident to SIRA for resolution by medical assessment also.

3. [5]

   On 24 September 2018 Mr Raina challenged whether Professor Home was qualified to assess neurosurgical issues and requested a neurosurgeon be appointed to assess his claim. I infer that his application was acceded to, at least in part, because on 16 January 2019 Mr Raina was assessed on behalf of SIRA by a different medical assessor, Dr Drew Dixon, an orthopaedic surgeon. Dr Dixon issued a medical assessment certificate under s 61 of the Act on 24 January 2019 certifying that:

4. [6]

   On 19 February 2019 pursuant to s 63 of the Act the insurer applied for a review of Dr Dixon’s assessment on the ground that Dr Dixon’s findings did not equate with the medical history of Mr Raina’s injury, including his complaints as recorded by his GP, Dr Wong, after the accident. On 18 June 2019, in accordance with s 63(3) of the Act and cl 16.17 SIRA Medical Assessment Guidelines the Proper Officer referred the matter for review by the Review Panel. The Review Panel was constituted by Dr Ian Cameron, rehabilitation specialist, Dr Geoffrey Stubbs, orthopaedic surgeon and Dr Clive Kenna, a general practitioner with expertise in musculoskeletal medicine and pain management.

5. [7]

   On 17 July 2019 Mr Raina wrote a letter to the Team Leader, Dispute Services Division of SIRA in which he challenged the constitution of the review panel. It is necessary to set out some of that letter:

6. [8]

   On 18 July 2019 (“the 18 July decision”) the Proper Officer confirmed the constitution of the Review Panel. Her letter is as follows:

7. [9]

   On 19 July 2019 the Proper Officer wrote to the parties and refused to constitute a different review panel for the purposes of the assessment (“19 July decision”).

8. [10]

   The Review Panel contacted Mr Raina to request an examination of him. The appointment was made for 24 July 2019. On 18 July 2019 Mr Raina wrote to the Proper Officer refusing to attend the appointment on the basis that the Review Panel was improperly constituted. Mr Raina confirmed this in writing to the Proper Officer on 20 July 2019.

9. [11]

   On 23 July 2019 the Proper Officer sent the following to Mr Raina:

10. [12]

    On 6 December 2019 pursuant to s 63 of the Act the Review Panel issued a certificate which provided that:

Extension of time

1. [13]

   Mr M A Robinson SC, who appeared with Ms J Gumbert for Mr Raina sought an extension of time to challenge the 18 and 19 July decisions of the Proper Officer pursuant to r 59.10 Uniform Civil Procedure Rules 2005 (NSW). Mr Robinson argued that in considering whether an extension of time should be granted I should have regard to the relevant factors that govern such an application. He drew my attention to El-Hanania v Vella [2019] NSWCA 167 and Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369. In El-Hanania McCallum JA (Gleeson and Payne JJA agreeing) said at [41]:

2. [14]

   Mr Robinson argued that the reason for the delay is because Mr Raina was exhausting his remedies within SIRA and that there would have been no basis for seeking judicial review if the Review Panel had determined that Dr Dixon’s assessment was correct: Roger v De Gelder (2011) 80 NSWLR 594 (“De Gelder”) at [91]-[92]. He submitted that the length of the delay is negligible having regard to the fact that the judicial review application was brought within 3 months of the Review Panel’s decision. Mr Robinson argued that there is no prejudice suffered by the first defendant. Finally, he argued that Mr Raina has a reasonably arguable case.

3. [15]

   Mr Rewell, who appeared for the first defendant opposed an extension of time being granted. Mr Rewell argued that Mr Robinson has failed to explain why the proceedings against the Proper Officer were brought out of time. In any event, Mr Rewell submitted that an extension of time would be futile as any challenge of the Proper Officer’s decision is bound to fail. Mr Rewell sought to distinguish the present dispute between those where the plaintiff seeks to exhaust the administrative process before applying for judicial review. Mr Rewell argued that in this case Mr Raina frustrated the administrative process by consistently asserting that the Review Panel was incorrectly constituted and refusing to attend medical examinations.

4. [16]

   Relevantly, r 59.10 provides:

5. [17]

   I am satisfied that this is an appropriate case to grant the extension of time sought. The summons was filed on 6 March 2020 which is within three months of the publication of the Review Panel’s new medical assessment certificate on 6 December 2019. I accept Mr Robinson’s argument that had the Review Panel affirmed Dr Dixon’s medical assessment certificate, proceedings for judicial review commenced within three months of the proper officer’s decisions would have been bound to fail as the asserted errors on the part of the proper officer would not have been jurisdictional because they could not have materially affected the Review Panel’s ultimate decision: Hossain v Minister for Immigration (2018) 264 CLR 123; [2018] HCA 34 at [31]. The point made in relation to the qualifications of Professor Cameron and Dr Kenna are at least “fairly arguable” and given the timely challenge of the Review Panel Certificate, it could not be said that there is any prejudice to the insurer. I would extend the time for seeking judicial review of the 18 and 19 July 2018 decision to the date of the commencement of the proceedings on 6 March 2020.

Submissions of the parties

1. [18]

   Mr Robinson argued that the decisions of the Proper Officer and the Review Panel occasioned jurisdictional error, error of law on the face of the record or alternatively that the Proper Officer and the Review Panel constructively failed to exercise their statutory power in making the decision.

2. [19]

   Mr Robinson submitted that the Proper Officer erred by unreasonably exercising her discretion and by failing to have regard to matters that were important and relevant. Mr Robinson submitted that it was unreasonable in the context of this dispute to include two medical assessors on the panel who were not surgeons and had no expertise in neurosurgery. He further submitted that the Proper Officer failed to have regard to cl 16.17 Medical Assessment Guidelines which required the officer to have regard to the nature of the injury in convening the review panel and that this amounted to a constructive failure to exercise her statutory role. He argued that in deciding not to re-constitute the review panel the Proper Officer failed to respond to a substantial and clearly articulated argument.

3. [20]

   Mr Robinson argued that the Review Panel denied Mr Raina procedural fairness. He submitted that the Review Panel considered 22 studies, of which only 2 had been referred to in the evidence placed before them. Mr Robinson argued that the failure to put Mr Raina on notice of their intention to utilise the studies in informing their decision amount ted to a denial of procedural fairness. Further, Mr Robinson submitted that the Review Panel did not give Mr Raina notice of the questions it had for him and so denied him the opportunity to respond. Mr Robinson submitted that by operation of cl 16.16, 16.19.6 and 16.21 the panel has the power to request further information and the Review Panel failed to avail itself of this opportunity. Mr Robinson further submitted that it was a requirement of cl 1.41 of the Guidelines that where there were inconsistencies between the medical assessor’s clinical findings and any medical records that the injured person must be given the opportunity to respond to the inconsistencies.

4. [21]

   Mr Robinson argued that the Review Panel failed to respond or acknowledge to the substantial and clearly articulated argument put forward by Mr Raina regarding contemporaneous evidence of right sided symptomology consistent with the injuries claimed. Mr Robinson argued that this resulted in a constructive failure to exercise jurisdiction.

5. [22]

   Mr Robinson argued that the Review Panel erred in law on the face of the record by failing to apply the correct test for causation. Mr Robinson argued that the Review Panel disregarded the evidence of right sided symptomology and found that the absence of contemporaneous evidence was determinative of causation. He argued that this amounted to jurisdictional error.

6. [23]

   Mr Rewell submitted that the Proper Officer had regard to the qualifications, expertise and clinical experience of the members of the Review Panel and concluded that it was appropriately constituted. He submitted that the Proper Officer had regard to all relevant considerations in constituting the Review Panel. Mr Rewell argued that to assert that only surgeons or neurosurgeons could make a proper determination of Mr Raina’s dispute was plainly wrong. Mr Rewell further argued that the Proper Officer had a discretion to appoint the Review Panel and his decision was neither unintelligible or completely unjustified so as give rise to judicial review.

7. [24]

   Mr Rewell submitted that the Review Panel did not deny Mr Raina procedural fairness by referring to peer reviewed articles in making its assessment. He argued that it was unnecessary for the Review Panel to refer to the articles on which it relied but in demonstrating its process of reasoning it chose to outline and summarise the materials it relied upon. Further, Mr Rewell argued that the material was not a “critical factor” in the Review Panel’s decision.

8. [25]

   Mr Rewell submitted that the Review Panel did not deny Mr Raina procedural fairness by not putting questions to him in writing. Mr Rewell argued that Mr Raina had the opportunity to be re-examined by the Review Panel but he refused to do so and denied himself of the opportunity.

9. [26]

   Mr Rewell argued that the Review Panel responded to Mr Raina’s arguments in relation to right sided symptomology in detail and disagreed with it. Mr Rewell submitted that Mr Robinson’s argument that the Review Panel failed to apply the correct test of causation does not accurately reflect the reasons of the Review Panel. Mr Rewell argued that the Review Panel considered the lack of contemporaneous evidence, with its analysis of the MRI scans of Mr Raina’s cervical spine on 28 September 2017 to find there was no injury to the C5/C6 disc.

Relevant provisions

1. [27]

   Section 44(1) is in the following terms:

2. [28]

   Section 59 of the Act provides for the appointment of medical practitioners and other suitably qualified persons as medical assessors.

3. [29]

   By s 63 a party may apply to the proper officer for the review of a medical assessment by a review panel on the basis that the assessment was incorrect. Section 63(3) provides that the proper officer is to convene a review panel of at least three medical assessors if they are satisfied that there is a reasonable cause to suspect that the medical assessment was incorrect.

4. [30]

   Section 65 provides that medical assessments are subject to the relevant provisions of the Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes and or the review and procedures for assessment.

5. [31]

   Clauses 5.1 and 5.2 of the SIRA Medical Assessment Guidelines (“Guidelines”) provides that the Registrar or Proper Officer may abridge or extend any time limit fixed by the Guidelines.

6. [32]

   Clause 9.15 is in the following terms:

7. [33]

   The Guidelines don’t appear to provide for any specific right of objection to the constitution of a review panel. However, given the right to object to the medical assessor on a primary application I am prepared to imply that the same right exists to object to the constitution of the review panel. This seems to confirm the procedure adopted in this case to the objections made by Mr Raina.

8. [34]

   Clause 16.16 specifies that if the proper officer is satisfied that additional information or documentation is required or will assist the review that they may request or seek to obtain that information.:

9. [35]

   Clause 16.17 is in the following terms:

10. [36]

    Clause 1.7 of the SIRA Motor Accidents Permanent Impairment Guidelines (“Guidelines Permanent Impairment”) sets out that:

11. [37]

    Clause 1.41 is in the following terms:

12. [38]

    Clause 1.138 is concerned with radiculopathy and provides:

The decisions under review

1. [39]

   As I have said above at [6] on 18 June 2019 the Case Management Officer, Dispute Resolution Services Division, SIRA wrote to the parties advising them of the constitution of the Review Panel, the time and date the Review Panel would convene (being 27 June 2019 at 5:00pm), the documents the Review Panel had received and when they could expect the Review Panel certificate. At [7]-[10], I set out Mr Raina’s objection to the constitution of the panel and the Proper Officers decision of 18 July 2019 overruling Mr Raina’s objection.

2. [40]

   The Proper Officer sent an email to the parties on 19 July 2019 at 3:18pm rejecting Mr Raina’s request for a differently constituted Review Panel. Her email in full is as follows:

3. [41]

   In their decision of 6 December 2019 (CB 78 - 97) the Review Panel determined that either spinal surgery proposed by Drs Kam and Bentivoglio did not relate to the injuries caused by the motor accident and therefore were not reasonable and necessary in the circumstances. They assessed a 5% whole person impairment due to a left-sided, soft tissue injury of Mr Raina’s neck. The panel’s reasons may be summarised by reference to the following material:

4. [42]

   Over CB 87 – 91, the Panel then provided its (in some cases, potted) summary of 22 papers appearing in end notes to its reasons at CB 95 – 97. In accordance with Ms Bergan’s affidavit, which I accept, two only of these papers were referred to in experts’ reports exchanged between the parties prior to the Review Panel proceedings. These related to the second of two papers by M Krafft concerned with the influence of crash severity on various whiplash injury symptoms. The second was a report by M. Machino recording the results of a comparative study of radiographic data in symptomatic and asymptomatic patients with cervical, spondylitic myopathy. The Review Panel’s analysis is organised under the sub-headings Epidemiology, Natural History, Diagnosis, MRI Studies After Whiplash, Biomechanical Studies of Real and Simulated Rear End Impacts and Outcome Studies. Emphasis is given to a paper by K. Radhakrishnan entitled Epidemiology of Cervical Allopathy: Population-Based Study Rochester Minnesota 1976 through to 1990 (Brain 1994; 117: 325-35).

5. [43]

   The Review Panel expressed its conclusion in the following way:

6. [44]

   The references in the Review Panel’s conclusions to Castro, Cormier, Krafft and Jumor are to authors of some of the 22 papers considered in its literature review. As I have said of these papers specifically mentioned only the second paper of Krafft was referred to in medical evidence exchanged prior to the proceedings before the Review Panel

Relevant legal principles

1. [45]

   In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J said (at 39 – 41) that a relevant consideration is one the decision-maker is bound to take the matter into account in making its decision. Mason J also said that whether the decision-maker is bound to take the matter into account is a matter of statutory construction. He further remarked that not every instance of a decision-maker failing to take into account a relevant consideration will justify the court setting aside the impugned decision. Where a factor is insignificant so as not to materially alter the decision there will be no justification for setting aside the decision.

2. [46]

   In De Gelder Gleeson JA said the following:

3. [47]

   In Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 (“Boyce”) Basten JA held at [19] – [22] that a failure to comply with guidelines may constitute a constructive failure to perform a statutory duty.

4. [48]

   In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Hayne, Kiefel and Bell JJ said at [76]:

5. [49]

   In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Crennan and Bell JJ said at [131]:

6. [50]

   In Dranichnikov v Minister for Immigration and Multicultural Affairs & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Gummow and Callinan JJ said at [24]:

7. [51]

   In Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Mason J said at 587:

8. [52]

   In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1 French CJ and Kiefel J said the following at [9]:

9. [53]

   In Frost v Kourouche (2014) 86 NSWLR 214; (2014) NSWCA 39, a case concerned with the exercise of the powers of a MAS Review Panel, Leeming JA (with whom Beazley P and Basten JA agreed) said:

10. [54]

    In Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 Tucker LJ said:

11. [55]

    In Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 the Court held (at [82)] that:

12. [56]

    In Boyce Basten JA said at [15] that clause 16.21.2 of the Guidelines did not require a re-examination, but rather required the review panel to make an evaluative judgment as to whether one was required. Referring to Practice Note 3/2005 [4(a)(i)] his Honour noted that the general rule was that the review panel should conduct a re-examination except in cases where there was no dispute as to the clinical findings: at [28]. His Honour said that lack of compliance with the Practice Note may give rise to a question of procedural unfairness: at [26].

13. [57]

    His Honour said at [94] – [95]:

14. [58]

    Mr Robinson referred me to the decision of Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318 (“Briggs”). In that decision Harrison AsJ considered whether the plaintiff had been denied procedural fairness because the review panel did not give the plaintiff notice of its intention to rely on a scholarly article. Harrison AsJ held that the use of the article denied the plaintiff procedural fairness as it was relied on to draw an important adverse conclusion about the plaintiff’s case in circumstances where the plaintiff had no opportunity to respond. Mr Robinson also referred me to Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467 where Harrison AsJ held that a review panel should have afforded the claimant an opportunity to consider the document they were relying on to make their decision and a failure to do so amounted to procedural unfairness.

15. [59]

    In Briggs, a review panel reproduced portions of a journal article, without attribution and relied on those passages to conclude that the claimant suffered a minor injury. Harrison AsJ found that the language used in the article sought to categorise the injury as either a “violent” or “less than violent” injury and therefore introduced a new standard to be applied in assessing the injury. In my view, the reliance on the article in that case led to the review panel asking itself the wrong question and thereby misconstruing its statutory function.

16. [60]

    Justice Wright’s decision in Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558 is a third decision in this same line of territory. His Honour found the failure of a Review Panel to disclose reliance upon an epidemiological survey he referred to as the Minnesota 1976 – 1990 study, and to provide the claimant with an opportunity to address any concerns arising from it, amounted to a denial of procedural fairness. His Honour analysed the study in quite some detail demonstrating its applicability to local New South Wales populations was not self-evident. His Honour said at [93]:

17. [61]

    As I have said, his Honour held that the jurisdictional error consisted of a denial of procedural fairness. His Honour found error on this basis notwithstanding the status of the Review Panel as an expert tribunal: at [78] by reference to North v Homolka [2014] VSC 478 at [104], Ashley JA.

18. [62]

    An expert tribunal is, of course, entitled to draw upon its expertise in making its determination: Wingfoot Australia Partners v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]. And it may be said that knowledge of the content of relevant professional literature, and resort to it, forms part of that expertise. None the less the resort by medical practitioners to medical literature is not immune from the relevant principles of law requiring disclosure and a request for comment or submission as an aspect of procedural fairness as the cases I have referred to show. Wright J’s “Minnesota Study” is the study referred to by the Review Panel in the case at hand by reference to its author, Radhakrshnan (see [42] above).

19. [63]

    In Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 at [31] RS Hulme AJ held (at [31]) that the lack of contemporaneous clinical record of complaint of a specific injurious consequence of a motor accident is not determinative of the question of whether that consequence was caused by the accident.

20. [64]

    In AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 the Court of Appeal held that the review panel failed to exercise its statutory function by deciding causation solely on the existence or otherwise of contemporaneous evidence of complaint of the injury claimed. The Court said (at [64]-[65]):

21. [65]

    One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely.

22. [66]

    Errors in the exercise of an administrative decision-making power are not taken to be “jurisdictional” unless they are shown to have affected the outcome. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Keiffel CJ, Gaegler and Keane JJ said (at [29] – [30]):

18 and 19 July decisions of the proper officer

1. [67]

   One may accept that the Guidelines allow a party to a medical dispute the procedural right to object to the “appropriateness” of the assessor or assessors, as the case may be, allocated for assessment of the dispute: clause 19.15 of the Guidelines. As I have already said (at [34] above), that “objection” must be made within 10 days of the date of the Proper Officer’s notification of the name of the assessor(s) to whom the matter has been allocated. It should be borne in mind that Clauses 5.1 and 5.2 of the Guidelines empower the Registrar or the Proper Officer to abridge or extend time limits fixed by the Guidelines.

2. [68]

   It’s also quite clear in accordance with the terms of Clause 16.17.1 of the Guidelines that in constituting a Review Panel the Proper Officer is to have regard to the nature of the injury and any continuing disabilities, the nature of the dispute, practical matters such as geographical considerations “and any other relevant information”.

3. [69]

   I also accept that the general law principles of procedural fairness require that the assessors chosen for the task have appropriate medical qualifications and experience to make that assessment. To give an extreme example, procedural fairness would not have been afforded Mr Raina had a psychiatrist, an urologist, and a plastic surgeon been appointed to conduct this review.

4. [70]

   The substance of Mr Raina’s complaint was that only a neurosurgeon or orthopaedic surgeon with experience in spinal surgery was qualified to assess the dispute, particularly having regard to the matters about the appropriateness of the proposed treatment. Specifically, he submitted that neither Assessor Cameron nor Assessor Kenna had appropriate qualifications.

5. [71]

   In her 18 July decision, made before she had received the submissions of the insurer, the Proper Officer pointed out that Assessor Stubbs was an experienced orthopaedic surgeon and asserted that Professor Kenna is a musculoskeletal physician, contrary to Mr Raina’s assertion. She also stated that no neurosurgeon accredited as a medical assessor had qualified as a review panel assessor. She was satisfied that the appointed panel had the necessary experience and qualifications for the assessments required.

6. [72]

   Mr Raina’s second letter of 18 July 2019 made the same case with more emphasis pointing out that neither Assessor Cameron nor Assessor Kenna had surgical experience. He asserted the absence of a neurosurgeon on the roster of Review Assessors was “procedurally unfair”.

7. [73]

   The insurer’s solicitor took the point that the objection had been made out of the time limited by Clause 19.15 and emphasised aspects of the experience and expertise of Assessor Cameron and Assessor Kenna, which the insurer submitted qualified them for the task. Professor Cameron is a rehabilitation physician specialising, inter alia, in spinal cord injuries who had co-authored a publication relating to the management of whiplash associated disorders. Assessor Kenna held himself out as having specific expertise in dealing with backpain and spinal disorders.

8. [74]

   In her decision of 19 July, the Proper Officer accepted the submissions of the insurer, decided that Assessor Kenna and Assessor Cameron had appropriate specialist qualifications and pointed out again that Dr Stubbs was an orthopaedic surgeon. She also accepted the insurer’s argument about the lateness of the application given that the objection had been raised outside the 10 days allowed by the Guidelines and only a week before the appointment for examination. No reference was made to the Proper Officer’s power to extend time. But the gravamen of her decision was the “requisite expertise” of the appointed panel. If the Proper Officer failed to recognise she had the power to extend time, then I am satisfied such error was not material.

9. [75]

   I am not satisfied that Mr Raina has demonstrated jurisdictional error on the part of the Proper Officer in making either decision under review. As Mr Rewell argued, the members of the Review Panel were not being asked to perform the surgery, but merely to assess, inter alia, its appropriateness in terms of s 58 of the Act. And Dr Stubbs is an experienced orthopaedic surgeon. The primary questions involved diagnosis of the relevant injury and its causal connection with the motor accident. These were not questions within the exclusive domain of neurosurgeons and orthopaedic surgeons specialising in spinal surgery. A physician specialising in physical medicine may diagnose an injury and express an opinion about its relationship with a given event with authority equal to a specialist surgeon who may be called upon to operate on the injury. Although I have held that the points made about the qualifications of Professor Cameron and Dr Kenna are “fairly arguable”, I am not satisfied that they have been substantiated in the event.

10. [76]

    I am not satisfied that the Proper Officer’s decisions were either legally unreasonable or that she failed to have regard to the matters referred to in Clause 16.17 of the Guidelines. There was no constructive failure to perform her statutory role. Nor am I satisfied that the proper officer failed to respond to a substantial and clearly articulated argument. She addressed the matters raised by Mr Raina. On the material available to her, the decision of the Proper Office was, in my opinion, legally open to her. This aspect of the plaintiff’s challenge must be dismissed.

Decision - the Review Panel Certificates

1. [77]

   It is perhaps useful to commence by summarising how the Review Panel resolved the “4 issues” it identified as set out above at [41], under the heading C. Panel Deliberations. It needs to be borne in mind that its approach was informed by the succeeding 6 bullet points, not all of which, were referable to “the pertinent literature”, contrary to the Review Panel’s suggestion. The last two of those bullet points were separate factual enquiries: the Panel’s own interpretation of the September 2017 MRI “in the light of Mr Raina’s history”; and what the Panel described as “the apparent shift of arm symptoms” 17 in January 2018.

2. [78]

   I would also observe, while acknowledging that it is not a ground of review, that there is a possible degree of pre-judgment in the formulation of these matters for determination. In particular the reference to “whiplash syndrome” in the second bullet point, and “the apparent shift of arm symptoms” in the sixth bullet point. If one assumes the nature of the injury is “whiplash” and that there has been a shift of symptoms from left to right about 5 months after the accident, one may be hardly likely to conclude that the right sided symptoms were an aspect of the injury apparently caused by the motor accident, but I digress.

3. [79]

   Bearing in mind the refusal of Mr Raina to submit to a medical examination by the Review Panel, which opportunity was clearly extended to him, the Review Panel concluded on the basis of the complaints recorded in the clinical records made available to them, which did provide direct evidence of his complaints at that time (although not strictly applicable, see for example s 66A Evidence Act 1995 NSW), that the injury caused by the motor accident was a left-sided soft tissue injury of the cervical spine. There is no record of any right sided complaints in 2017. Indeed, when Mr Raina was referred by his GP for the MRI scan his complaints, as recorded by the GP, remained left sided. And this is so notwithstanding that Mr Raina subsequently gave a history to other medical assessors in 2018, such as Dr Kam and Dr Bentivoglio, that he experienced an onset of right sided symptoms within 24 hours of the accident. Had he attended for examination Mr Raina would have had the opportunity of explaining that to the medical assessor conducting the examination. It would have then been a matter for the Review Panel to decide, as a question of fact, whether it accepted Mr Raina’s account in preference to the contemporaneous record. Having decided that the contemporaneous clinical records provided reliable evidence of Mr Raina’s then complaints, it was open to the Review Panel to decide there is a clear lack of correlation between his symptoms and the radiological evidence provided by the MRI scan.

4. [80]

   In any event, the Review Panel made its own decision about the nature of the pathology shown by the September MRI and concluded that the images taken in September 2017 did not provide evidence of an acute injury. Rather the lesion shown at C5/6, in the Review Panel’s view, is a “hard disc” and of longstanding. From this it is clear that the Panel was of the view that the lesion shown at C5/6 on the MRI scan pre-existed the motor accident and did not account for Mr Raina’s symptoms when the MRI scan was undertaken. Notwithstanding the not insignificant body of medical opinion to the effect that the C5/6 lesion was discrete pathology caused by the motor accident against a background of other degenerative changes, in accordance with Wingfoot Australia, the Review Panel were entitled to draw upon their own expertise to make their own contrary decision. It should be acknowledged that the opinion of the insurer’s medical referee was to the same effect.

5. [81]

   Both bio-mechanical engineers, Professor Robert Anderson, and Mr William Bailey, were of the view that the rear end impact collision in which Mr Raina was injured was a comparatively low velocity collision. Professor Anderson put the change in velocity involved in the collision at 8.8 kph and Mr Bailey in the range of 8 to 12 kph. Both bio-mechanical experts drawing upon their own understanding of “the literature” formed the view that the probability of a person receiving a serious permanent neck injury in such a collision was low.

6. [82]

   On its review of the clinical material that had been provided by the parties, the Review Panel noticed that the first clear complaint of right sided symptoms was in the revised medical certificate provided by the treating GP, Dr Wong, on 31 January 2018. While the Panel did not consider whether the intercurrent thyroid condition may have been a confounding factor, they did not regard it as “plausible that the effects of the motor vehicle accident would be delayed by this length of time, rather radiculopathy occurs within days”. It is clear that they took this date as, at least the approximate date of the onset of the right-sided symptoms.

7. [83]

   To these factors one may add, as I have set out above at the end of [43], the table where the Review Panel documented the variation in physical findings made by various examiners when recording their findings on examination referrable to right sided radiculopathy. In the Review Panel’s view no consistent evidence of right-sided radiculopathy was evident from this review.

8. [84]

   This group of findings together are sufficient to justify the Review Panel’s ultimate conclusions as expressed in the medical assessment certificates they issued: the injury caused by the motor accident is a left sided soft tissue injury to the cervical spine giving rise to a whole person impairment of less than 10 percent; either version of the surgery proposed by Dr Kam and Dr Bentivoglio respectively does not relate to this injury; and neither version of the proposed surgery is reasonably necessary treatment for the injury. Indeed, the finding of soft tissue injury only, as opposed to a disc lesion involving radiculopathy, of itself would justify a decision that the surgery did not relate to the injury and was not reasonable and necessary in the circumstances. Doubtless under the guidelines, a soft tissue injury to the cervical spine would not give rise to a whole person impairment of greater than 10 percent. Obviously it is unnecessary and inappropriate for me to so decide.

9. [85]

   The group of findings to which I have referred, and indeed the central finding of soft tissue injury only, one would have thought, did not in any way depend upon the detailed review of the literature undertaken. Certainly, the categorisation of the collision as a low velocity impact depended upon the acceptance of the opinion of the bio-mechanical engineers, but there was no substantial disagreement between them. Otherwise, the group of findings, and what I have termed the central finding, were matters of clinical judgment.

10. [86]

    The circumstance that the Review Panel was restricted in the exercise of its function to a review of the papers provided by the parties is entirely due to Mr Raina’s refusal to submit himself for examination and interview. I have already found that there was no jurisdictional error in the proper officer’s overruling of Mr Raina’s objections to the constitution of the Review Panel and in substance its makeup did not involve any procedural unfairness.

11. [87]

    Having made these observations, there is no doubt, that the literature review was influential in the Review Panel’s reasoning. To resolve the issues it identified for itself, the Review Panel said it “needed” to review the literature. It then embarked upon a consideration of some 22 papers which were to some extent summarised in the body of its reasons. In its summary, it emphasised the paper by Radhakrishnan. It expressly accepted the opinions of the bio-mechanical engineers to the effect that “long term injury is unlikely” because that fitted the conclusions expressed in the papers of Castro, Cormier, Krafft and Jumar. Moreover, the Panel’s conclusions about the reasonableness and necessity of the proposed surgery were influenced by the work of Sarrami.

12. [88]

    Assuming for the moment that the use made by the Review Panel of the 22 papers involved a denial of procedural fairness to Mr Raina, for that “error” to be jurisdictional it must be shown to have been “material” in the sense discussed in the plurality judgment in Hossain referred to at [66] above. I am conscious of the approach of Wright J in Robson (see [60] above) where his Honour found materiality because he was unable to conclude the study in question there was “not a more than minimal factor in the Review Panel’s conclusions, such as to attract the obligation to disclose the study to (the claimant) and allow him the opportunity to respond to it”. That the same ultimate decisions could have been made on the Review Panel’s primary findings of fact without reference to the medical literature does not require a finding that the literature was not material when it was obviously influential in the reasoning process. The correct approach described by Basten JA in Boyce (see [57] above) to the assessment of the effect of a breach of the hearing rule aspect of procedural fairness should be taken as a statement of general principle.

13. [89]

    I turn then to then to the specific complaints made by Mr Raina.

14. [90]

    The relevant principles are set out above. Kioa v West and The Minister v SZGUR established the relevant principle that a decision-maker must advise the person affected “of any adverse conclusion which would not obviously be open on the known material”. It is clear that the conclusions adverse to Mr Raina, drawn from its review of the medical literature, was not drawn to his attention by the Review Panel. He was not asked to comment or allowed the opportunity to make further submissions.

15. [91]

    While I find Mr Rewell’s argument that the contents of peer reviewed medical literature forms part and parcel of an expert’s special knowledge which could be brought to bear in an expert assessment without express mention attractive, the process adopted here was somewhat different. The Review Panel did not draw upon their accumulated medical knowledge including information derived from their ongoing professional development involving the reading of learned literature, just as a lawyer may enhance her or his knowledge by reading law reports. Rather, the members found it necessary to embark upon a specific, targeted review to resolve the issues they identified. Notwithstanding the other important adverse findings made, as I have said, it cannot be gainsaid that that review was influential in their decision-making process. It may have informed other important findings of fact. The conclusions derived from their specific review should have been drawn to Mr Raina’s attention for his comment and submissions. I should say that even a court of ordinary jurisdiction may be under a similar obligation in regard to legal precedents not put before the court by the parties, but rather, representing the product of the judge’s own research. In his judgment, in International Finance Trust Company Limited v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49 Heydon J (at [146]) said:

16. [92]

    Clause 1.4.1 of the Guidelines and, more fundamentally, the requirements of the common law of procedural fairness referred to by Leeming JA in Frost v Kourouche (see [53] above) generally require a person affected be afforded the opportunity of explaining apparent inconsistencies before they are used against her or him. In ordinary adversarial litigation this is achieved by cross-examination. It is clear from the highlighted portion of their reasons under the heading “Treatment – Reasonable and Necessary” extracted in the long passage at [43] above that the Review Panel felt at a disadvantage in resolving the contested questions of primary fact by the lack of an opportunity of discussing the matters with Mr Raina. I interpolate that Mr Raina submits that questions could have been put to him in writing, which matter could have been accommodated by Clause 1.41 (see [37] above).

17. [93]

    I am not satisfied that this ground is made out. What procedural fairness requires is the provision of a fair opportunity for a person “to propound his or her case for a favourable exercise of the power”: see SZSSJ (at [55]). Here a reasonable opportunity was provided to Mr Raina to attend for “a personal interview and clinical examination” (see, Boyce at [57]), during which he would have had full opportunity to present his case and in particular explain inconsistencies drawn to his attention by the examining assessor. The procedures adopted by the Review Panel did not deprive him of this opportunity. His own decision to refuse to attend for examination achieved that outcome. The letter of 23 July 2019 ([12] above) “warned” him his decision may result in adverse findings being made in the absence of explanations from him. He was not dissuaded from his refusal to attend. In those circumstances, the Review Panel had no real option but to make its decision on a review of the clinical material provided by the parties. It was not incumbent upon the Review Panel, having provided the opportunity for a personal discussion and clinical examination, to provide a series of written questions for Mr Raina’s consideration. Practical justice had been offered. This ground is not made out.

18. [94]

    The argument the subject of this ground, as Mr Raina put to the Review Panel in writing, that within 24 hours of the accident he had developed excruciating pain, radiating down into his right arm. And that this had been drawn to the attention of not only Assessor Dixon but also Dr Kam and Dr Bentivoglio.

19. [95]

    There are two reasons why this ground should be rejected. The first is factual and the second is legal. First, the Review Panel were well aware that Drs Kam, Bentivoglio, and Dixon received a history that Mr Raina’s symptoms were always on the right-hand side. They referred to this in the same passage I have already referred to under the heading “Treating – Reasonable and Necessary” extrapolated at paragraph [43] above. And they evaluated that argument in the light of other materials provided to them for their review. The Review Panel rejected the argument on factual grounds.

20. [96]

    The legal point is that in their formulation of this ground of denial of procedural fairness in Dranichnikov (see [50] above), Gummow and Callinan JJ premised the ground in terms of a “clearly articulated argument relying upon established facts” (my emphasis). The point is that the facts here were in dispute. An important part of the Review Panel’s statutory function was to determine what the facts were about the receipt of injury and the resulting pattern of symptoms.

21. [97]

    I reject this ground.

22. [98]

    The gravamen of this ground is that the Review Panel treated the contemporaneous clinical records as determinative of the question of legal causation. I have set out the relevant legal principles at [63] – [65].

23. [99]

    It may be said that in formulating the issues for its determination (at [41] above), the Review Panel asked itself a wrong question by formulating it in the following terms:

24. [100]

    However, if one reads their reasons fairly as a whole, it is apparent that the members of the Review Panel did not take this narrow legally incorrect approach. As I have already stated, given Mr Raina’s refusal to undergo further examination by a member of the Review Panel, it was not unreasonable for the Review Panel to rely upon the clinical material. Although different decision-makers may have taken a more benign approach to the contents of this material than the Review Panel, it is apparent from their reasons that the members of the Review Panel would have been prepared to allow what I would regard as a degree of tolerance between the occurrence of the accident and the onset of relevant symptoms. It needs to be borne in mind that the case presented by Mr Raina, unlike the case of McGiffen (see [64] above), was one of immediate onset, or at least within 24 hours, of the relevant symptoms. On the evidence available to them, the members of the Panel were not satisfied that Mr Raina’s case in that regard had been made out. The earliest reference the Panel were able to find to right side symptomatology, as I have said, was the revised certificate of Dr Wong of 31 January 2018, which they calculated to be 14 weeks after the motor accident. The Review Panel seem to have been conscious of the consideration that treatment for the effects of the motor accident may have been interrupted by the need for the applicant to have surgical and oncological treatment for his thyroid malignancy in the meantime. However, their findings may be repeated in the following terms:

25. [101]

    In legal terms the correct test of causation should be expressed in terms of s 5D(1)(a) Civil Liability Act, or at least adapting them: was the collision a necessary condition of the onset of right sided neck and arm symptoms. Notwithstanding the unduly narrow formulation of the question I have identified, in substance I am satisfied the Medical Review Panel answered the correct question. I am not satisfied that this ground is made out.

26. [102]

    It follows, however, that Mr Raina has succeeded on one of his four grounds impugning the legality of the Review Panel’s decision. Accordingly, the Medical Appeal Panel Certificates do not conform to law and should be set aside. The matter should be referred for reconsideration by a differently constituted Panel in accordance with these reasons. A different Panel should be convened because given the detailed consideration afforded the issues by the members of the previous Panel, it seems unlikely that they will be able to approach the matter entirely afresh.

27. [103]

    My orders are:

    1. (1)

       An order in the nature of certiorari setting aside the medical assessment certificate issued by the third defendant in MAS Matter No. 2018/02/1419 and the two medical assessment certificates issued in MAS Matter No. 2018/01/397, all issued on 6 December 2019;

    2. (2)

       Remit the matter to the second defendant for reference to a differently constituted review panel under the provisions of s 63 Motor Accidents Act 1999 NSW for determination in accordance with these reasons;

    3. (3)

       Extend the time for bringing an application for judicial review of the decisions of the proper officer of 18 and 19 July 2018 to 6 March 2020; and

    4. (4)

       Dismiss the application for judicial review of the decisions of the proper officer of 18 and 19 July 2018;

    5. (5)

       The first defendant to pay the plaintiff’s costs of the proceedings.