AAI Limited t/as GIO v Zaroual

1. [1]

   HER HONOUR: This is a judicial review of the decisions of a medical assessor and a proper officer of the State Regulatory Authority (“SIRA”) in relation to a determination of a treatment dispute.

2. [2]

   By amended summons filed 28 July 2020, the plaintiff relevantly seeks:

   1. (1)

      an order pursuant to s 69 of the Supreme Court Act 1970 (NSW) setting aside the certificate and accompanying reasons of the third defendant, Dr James Bodel (“the Medical Assessor”), dated 28 October 2019 (“the Medical Assessor’s decision”); or, alternatively,

   2. (2)

      an order in the nature of certiorari or a declaration setting aside or declaring invalid the Medical Assessor’s decision;

   3. (3)

      an order pursuant to s 69 of the Supreme Court Act setting aside the determination and reasons of the fourth defendant, Jeremy Lum (“the Proper Officer”), dated 30 January 2020 (“the Proper Officer’s decision”); or, alternatively,

   4. (4)

      an order in the nature of certiorari or a declaration setting aside or declaring invalid the Proper Officer’s decision;

   5. (5)

      an order in the nature of mandamus remitting the plaintiff’s application for determination of the treatment dispute to the second defendant for reallocation of the matter to a different medical assessor for determination according to law; or, alternatively,

   6. (6)

      an order in the nature of mandamus remitting the plaintiff’s application for review to the second defendant for reallocation to a different proper officer for determination according to law.

3. [3]

   The plaintiff is AAI Limited t/as GIO (“the insurer”). The first defendant is Sam Hamid Zaroual (“Mr Zaroual”). The second defendant is SIRA. The third defendant is Medical Assessor. The fourth defendant is the Proper Officer. The second, third and fourth defendants have filed submitting appearances.

Background

1. [4]

   Mr Zaroual has made a claim for damages under the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”) arising from a motor vehicle accident which occurred on 12 May 2014. Mr Zaroual claimed to have suffered injuries to his neck and back.

2. [5]

   Mr Zaroual was referred to a neurosurgeon, Dr Simon McKechnie, for review. An MRI scan revealed that Mr Zaroual suffered from an underlying degenerative condition which Dr McKechnie diagnosed as myelomalacia of the spinal cord. Dr McKechnie recommended that Mr Zaroual undergo a multilevel cervical laminectomy from the C3 to C7 intervertebral discs (“the surgery”).

3. [6]

   The insurer filed an application for a treatment dispute pursuant to s 58 of the MAC Act for a determination as to whether the surgery was reasonable, necessary and related to an injury caused by the motor accident.

4. [7]

   There was no issue that Mr Zaroual suffered from the underlying degenerative condition. The issue requiring determination was whether the underlying condition had been aggravated by the accident.

5. [8]

   The insurer contended that the degenerative condition was neither caused by the accident, nor reasonable and necessary, and relied upon a number of medico-legal reports and a report of a biomechanical expert.

6. [9]

   On 28 October 2019, the Medical Assessor issued a certificate and statement of reasons determining that the motor vehicle accident had aggravated the underlying degenerative process leading to the need for the surgery, and that the treatment was reasonable and necessary.

7. [10]

   The insurer applied for a review of the Medical Assessor’s determination pursuant to s 63 of the MAC Act, claiming that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect. The Proper Officer dismissed the insurer’s application for review.

Grounds of judicial review

1. [11]

   The insurer seeks a judicial review on the grounds that the Medical Assessor:

   1. (1)

      failed accord procedural fairness and natural justice to the insurer by failing to respond to a substantial and clearly-articulated argument;

   2. (2)

      constructively failed to exercise jurisdiction by failing to consider and respond to the insurer’s contentions;

   3. (3)

      fell into jurisdictional error by failing to take into account relevant considerations; and

   4. (4)

      failed to provide any (or any adequate) reasons for his determination.

2. [12]

   Each of these grounds of judicial review traverses the same reasoning of the Proper Officer. I will fully set out my reasoning under judicial review grounds 1 and 2, followed by less extensive reasons in relation to judicial review grounds 3 and 4.

3. [13]

   It is appropriate that I now briefly set out the legislative framework.

The legislative framework

1. [14]

   The MAC Act provides the framework for the claiming of common law damages for injuries arising out of the use or operation of a motor vehicle. Relevantly, Part 3.4 provides a process by which medical disputes are determined.

2. [15]

   Section 58 of the MAC Act provides that Part 3.4 applies to a disagreement between a claimant and an insurer concerning whether the injured person’s treatment is reasonable and necessary in the circumstances, and whether it relates to the injury caused by the motor accident (a “medical assessment matter”). A medical dispute may be referred to SIRA by either party to the dispute, and SIRA is to arrange for the dispute to be referred to one or more assessors.

3. [16]

   Section 63 of the MAC Act provides that a party to a medical dispute may apply to the Proper Officer to refer a medical assessment to a Review Panel, but only on the grounds that the assessment was incorrect in a material respect.

4. [17]

   Section 44 of the MAC Act provides that SIRA may issue guidelines with respect to the procedures for the referral of disputes for assessment (“the Medical Assessment Guidelines”).

5. [18]

   Clause 13.3 of the Medical Assessment Guidelines requires a medical assessor to whom a treatment dispute has been referred is to issue a certificate certifying whether the treatment was reasonable and necessary and related to the injury caused by the accident.

6. [19]

   Clause 13.2 of the Medical Assessment Guidelines provides that the certificate shall include written reasons for the determination.

7. [20]

   The parties also referred to Clauses 1.5 to 1.7 of the Permanent Impairment Guidelines (“the PI Guidelines”), which concern causation. While the Medical Assessor’s task in these proceedings was not to determine the Mr Zaroual’s whole person impairment (“WPI”), the parties agreed that these causation guidelines provide useful guidance in relation to the second limb of s 58 of the MAC Act as to whether the treatment to be provided to the injured person related to the injury caused by the motor accident.

8. [21]

   Clauses 1.5 to 1.7 of the PI Guidelines read:

The insurer’s application for assessment of a treatment dispute

1. [22]

   Mr Zaroual requested that the insurer fund the surgery proposed by his neurosurgeon, Dr McKechnie. The insurer denied the request for approval on grounds that the proposed surgery was not causally related to the accident. The effect of the denial was to enliven s 58 of the MAC Act.

2. [23]

   Mr Zaroual relied upon the opinion of Dr McKechnie in contending that the surgery was causally related to the injuries suffered in the accident. The insurer relied upon the opinions of three experts: Dr Slezak, a consultant physician; Dr Sekel, a consultant in occupational medicine; and Michael Griffiths, a biomechanical engineer, in denying the approval request.

3. [24]

   The insurer filed an application for assessment of the treatment dispute, supported by written submissions and evidence.

4. [25]

   The thrust of the insurer’s contentions was twofold. Its first broad submission was that Mr Zaroual suffered from an underlying and unrelated congenital narrowing of the spinal cord resulting in myelomalacia (a softening of the spinal cord). It was the insurer’s case that this underlying condition, which had been identified on radiological imaging, was the imperative for proceeding with the surgery. The second broad submission was that the accident had not caused Mr Zaroual’s injury because the forces involved in the collision were extremely minor, as evidenced by the minimal damage to the vehicles involved in the accident.

5. [26]

   The insurer’s submissions referred to the evidence upon which it relied in support of the application. It detailed the contents of the three expert reports supporting the insurer’s medical reports to the effect that the proposed surgery was not causally related to the motor vehicle accident.

6. [27]

   The insurer’s reports can be summarised as follows.

7. [28]

   Mr Griffiths (“the engineer”) is a Biomedical and Mechanical Engineer of Road Safety Solutions. He provided a report dated 14 September 2017. The engineer was provided with photographs of damage to the respective vehicles, statements as to the circumstances of the accident and medical records and reports. Mr Griffiths, in his curriculum vitae, refers to his separate biomedical qualifications including (CB 310):

8. [29]

   The engineer, having studied the minimal damage to the respective vehicles, noted that the damage to the rear of Mr Zaroual’s vehicle was limited to some superficial scuff marks on the bumper cover. He noted that the other driver had stated that he was almost stopped or travelling at no more than 10 kph when the impact occurred.

9. [30]

   Based on the damage evident from the photographs provided to him and his own expertise, the engineer concluded that the resultant change in velocity to Mr Zaroual’s vehicle would have been no more than 5 kph (CB 316). He prepared a diagrammatic summary of Mr Zaroual’s injuries and pathology. He also noted that the radiology revealed pre-existing degenerative spondylosis as early as January 2013, consistent with the subsequent scanning, which reported longstanding degenerative changes. The engineer noted that objective assessment by non-invasive imaging established the pre-existing degenerative disease in the vertebrae, and provided his opinion that after the accident, this condition had not changed beyond the normal progression of his pre-existing degenerative pathology.

10. [31]

    Under the heading “Neck injury threshold in low speed rear impacts”, the engineer relevantly stated that rear impacts do not expose the occupant of the vehicle to greater vulnerability to injury. After introducing the relevance of head restraints to accidents, he stated that “in simple terms, a good head restraint is positioned as close as to the head as possible”, where in the event of a collision, it can restrain the head before the neck muscles attempt to do so. The engineer continued as follows (CB 339):

11. [32]

    The engineer concluded that the minimal energy exchange associated with this incident was consistent with the robust documentation of the medical records that there was no new acute injury. It was his opinion that the lack of any new acute injury was consistent with the low velocity change indicated by the vehicle damage and consistent with the various studies that crash pulses would need to exceed a velocity change of 15 kph for there to be a likelihood of a neck injury.

12. [33]

    According to the engineer, the velocity change involved in the accident of no more than 5 kpm was considerably less than the injury threshold established by the studies.

13. [34]

    Dr Sekel, orthopaedic surgeon, provided three reports dated 25 October 2016, 20 October 2017 and 15 March 2019. In each of the reports, Dr Sekel expressed the opinion that the motor vehicle accident was unlikely to have caused any significant injury.

14. [35]

    In particular, in his final report, Dr Sekel concluded that the trauma from the accident was only minor, and not sufficient to cause any permanent aggravation or acceleration of Mr Zaroual’s well documented pre-existing conditions. He further concluded that the surgery was instead necessitated by the congenital narrowing of Mr Zaroual’s spine and the longstanding osteophyte disc complexes that were already detected on CT scanning performed over a hear prior to the accident.

15. [36]

    In his report, Dr Slezak considered the report of the engineer and agreed that the accident was unlikely to have aggravated any pre-existing injury or resulted in any further acute injury involving the cervical spine.

The referral of the treatment dispute

1. [37]

   The treatment dispute was referred to the Medical Assessor, who was provided with the competing contentions and supporting evidence as summarised above. The expert opinions were partially at odds.

2. [38]

   Prior to the assessment by the Medical Assessor, Mr Zaroual had been assessed by Medical Assessor Home for determination of his WPI.

3. [39]

   On 11 January 2016, Medical Assessor Home issued his certificate and reasons. In his decision under the heading “Findings on Clinical Examination” in relation to the cervical spine, Medical Assessor Home found that the cervical spine revealed normal spinal curvature and there was no muscle spasm. Cervical flexion and extension, as well as right rotation, were maintained. Left rotation was performed to two thirds normal range, and right lateral flexion was normal. He found that left lateral flexion was reduced to two thirds normal range, and muscle guarding was evidenced during left sided cervical motion. Medical Assessor Home assessed WPI of the cervical spine at 5%.

The decision of the Medical Assessor

1. [40]

   In his decision, the Medical Assessor identified the two issues in dispute before him as being whether the surgery related to the injuries caused by the motor accident, and whether it was reasonable and necessary in the circumstances. The Medical Assessor also took into account the MAS certificate of Medical Assessor Home dated 11 January 2016 and replacement certificate dated 4 July 2016 (CB 361-362).

2. [41]

   The Medical Assessor then recorded a history of the accident (CB 363). He stated that the Mr Zaroual’s vehicle was fitted with a head restraint and that Mr Zaroual was wearing a seatbelt. Mr Zaroual stated that there was a lot of damage to the vehicle which struck his, but that apart from the stereo in his dashboard “popp[ing] out”, his own vehicle was not badly damaged and was driveable.

3. [42]

   The Medical Assessor then set out a history of symptoms and treatment following the motor accident as follows (CB 363-364). Under the heading “History of symptoms and treatment following motor accident”, the Medical Assessor stated:

4. [43]

   Under the heading “4. Findings on Clinical Examination”, the Medical Assessor set out Mr Zaroual’s consistency of presentation as follows (CB 365):

5. [44]

   Under the heading “5. Review of Documentation”, the Medical Assessor set out a summary of the relevant documentation as follows (CB 365-368):

6. [45]

   The Medical Assessor’s reasons for determining that the proposed surgery was causally related to the accident is as follows:

7. [46]

   In summary, the Medical Assessor identified the relevant medical dispute and documentation upon which the parties relied and recorded the history as given by Mr Zaroual. Relevantly, the Medical Assessor obtained a history “that there was a lot of damage” to the other vehicle involved in the accident, although Mr Zaroual’s vehicle was not as badly damaged and was driveable. The Medical Assessor obtained a history of the development of symptoms thereafter and Mr Zaroual’s ongoing symptomatology.

8. [47]

   After reporting on the clinical examination, the Medical Assessor noted the context in which the surgery was proposed. The Medical Assessor was of the opinion that there was clear evidence that the underlying pathological process was largely degenerative. However, Mr Zaroual was apparently asymptomatic in the neck and the back at the time of the accident. The Medical Assessor noted that Mr Zaroual had had extensive conservative care which had not helped, and he had steadily deteriorated in the neck and the left arm over time which brought forward the need for the surgery.

9. [48]

   The Medical Assessor agreed with Medical Assessor Home in his MAS that Mr Zaroual did have injuries caused by the motor vehicle accident, cervical spine aggravating underlying degenerative changes at C5/6 and C6/7, which also appeared to be the conclusion from Dr McKechnie regarding the management of this injury.

10. [49]

    The Medical Assessor noted that Mr Zaroual had early signs of myelomalacia, and possible cervical myelopathy and the surgery would hopefully prevent any further deterioration.

11. [50]

    Importantly, the Medical Assessor agreed with those experts who had indicated that there had been longstanding pre-existing degenerative change in the neck and the back and an acquired vertebral canal stenosis particularly in the cervical spine. He stated that this was due in part to degenerative change and in part due to congenital short pedicles. Hence, the Medical Assessor agreed with the insurer’s medico-legal experts up to this point. The remaining issue was whether the accident had caused aggravation of the underlying degenerative process that led to Mr Zaroual’s need for surgery.

12. [51]

    The Medical Assessor agreed with Dr McKechnie, indicating that he was satisfied that the motor vehicle accident had aggravated the underlying degenerative process, leading to the requirement for surgery. The Medical Assessor also referred to the opinion of Dr McKechnie where he had observed in recent MRI scans that Mr Zaroual was developing myelomalacia and there was some concern that this would progress to cervical myelopathy.

13. [52]

    An administrative decision maker has an obligation to consider and respond to a substantial and clearly-articulated argument articulated by a party to the dispute. A failure to do so constitutes a failure to accord procedural fairness and natural justice, and amounts to a constructive failure to exercise jurisdiction: see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24] (“Dranichnikov”); Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 per Basten JA at [19]-[22] (“Cervantes”); Rodger v De Gelder [2015] NSWCA 211 per Gleeson JA at [89] - [96], [109] (“De Gelder”); AAI Ltd t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [66] (“McGiffen”).

14. [53]

    The parties also relied upon Wingfoot Australia Partners Pty Ltd v Kocak [2003] HCA 43 (“Wingfoot”) at [47] and [56]. They read:

15. [54]

    The defendant referred to Cervantes at [19]-[22], where Basten JA stated:

16. [55]

    The insurer submitted that in considering the insurer’s export reports, the Medical Assessor merely noted (and agreed) with the opinion of Dr Sekel that Mr Zaroual’s pathology was degenerative in nature with congenital short pedicles and vertebral canal stenosis. The Medical Assessor made no reference to the opinion of Dr Sekel as to causation of the need for the surgery, and made no reference to the opinion of Dr Slezak at all.

17. [56]

    As to the report of the engineer, the Medical Assessor made reference to the “better quality” photographs of damage to Mr Zaroual’s vehicle in the engineer’s report, which he observed was consistent with the history provided by Mr Zaroual. However, the Medical Assessor made no reference to the engineer’s expert opinion itself.

18. [57]

    The Medical Assessor agreed that Mr Zaroual had longstanding pre-existing degenerative change in the neck and an acquired vertebral canal stenosis in the cervical spine. He concluded that this was in part due to degenerative change and in part due to congenital short pedicles.

19. [58]

    The insurer submitted that by so doing, the Medical Assessor did not:

20. [59]

    The insurer contended that the surgery was not causally related to the accident, and supported this contention with expert reports. It submitted that it was incumbent upon the Medical Assessor, in determining the issue as to causation, to consider and respond to its arguments and the evidence upon which it relied.

21. [60]

    According to the insurer, the Medical Assessor failed in his most fundamental obligation as an administrative decision maker. He gave no consideration to the insurer’s contentions, or for that matter the evidence upon which the insurer relied supporting its causation case. The insurer referred to De Gelder as per Gleeson JA at [109]:

22. [61]

    In the circumstances, the insurer submitted that the Medical Assessor failed to accord the insurer procedural fairness and natural justice, and failed to constructively exercise his jurisdiction, thereby falling into jurisdictional error.

23. [62]

    Mr Zaroual submitted that instead of identifying what the substantial and clearly-articulated argument was that was purportedly not responded to by the Medical Assessor, the insurer merely outlined the merits of its own expert reports and complained that the Medical Assessor did not expressly refer to each report in making his findings. Distilled, it appears that the insurer’s argument was that:

24. [63]

    Having regard to the authorities (particularly Cervantes at [19]-[22]), Mr Zaroual submitted that there is no obligation for the Medical Assessor to refer to every piece of evidence that was before him. All that was required of the Medical Assessor, in this context, was to respond to the substance of a substantial and clearly-articulated argument.

25. [64]

    Mr Zaroual submitted that when reading the Medical Assessor's decision fairly and as a whole, it is clear that the Medical Assessor responded to the substance of the insurer’s argument.

26. [65]

    Further, although he was not required to, the Medical Assessor did made reference to the reports of Drs Sekel and Slezak and the engineer. He accepted that Mr Zaroual had an underlying condition. At p 7 of his decision, the Medical Assessor identified the very substance of the argument said to have been not engaged with, and then provided some explanation for the contrary view of Drs Slezak and Sekel.

27. [66]

    At p 8, the Medical Assessor then considered the degenerative condition of Mr Zaroual’s spine and the opinion of Dr Sekel, stating:

28. [67]

    In short, the Medical Assessor not only referred to and responded to the first limb of the insurer’s argument, he accepted it. His reasons make it plain that he found that there was an underlying degenerative condition. However, he also accepted that the claimant was asymptomatic prior to the accident and that the accident aggravated the underlying condition and brought forward the need for surgery.

29. [68]

    Mr Zaroual further submitted that the Medical Assessor expressly referred to the report of the engineer, which was the insurer’s primary evidence on the issue of the velocity of the impact. The Medical Assessor stated on page 8:

30. [69]

    As such, Mr Zaroual submitted that the insurer’s submissions about the minimal damage to the vehicle was not only responded to, but accepted.

31. [70]

    Mr Zaroual further submitted that it is helpful to have regard to the conclusion in the engineer’s report, which was that “the minimal energy exchange associated with this incident is consistent with the robust documentation of the medical records that there is no new acute injury.” In other words, the accident did not cause the vertebral damage.

32. [71]

    Mr Zaroual submitted that this issue was squarely considered by the Medical Asssessor; he just disagreed with the engineer’s conclusion. The Medical Assessor’s conclusion on the topic was plainly stated on page 9 of the decision:

33. [72]

    The Medical Assessor provided his reasoning that even though the vertebral changes were pre-existing, the accident aggravated them, rendering them symptomatic and bringing forward the need for surgery.

34. [73]

    For these reasons, Mr Zaroual submitted that the Medical Assessor’s reasons respond to all three limbs of the insurer’s argument. Not only did the Medical Assessor specifically refer to the reports of Drs Sekel and Slezak, but the Medical Assessor accepted their positions to the extent that Mr Zaroual suffered from pre­existing congenital conditions and that there was minimal damage to the vehicle. The Medical Assessor was not required to go through each page of the hundreds of pages of documents provided by the insurer and provide a detailed explanation as to why he did or did not agree with each and every part of each and every report: see Wingfoot at [47] and Cervantes. As such, the Medical Assessor did not err in his determination.

35. [74]

    As previously stated, the Medical Assessor correctly identified that in this dispute, his statutory task was to determine whether the surgery related to the injuries caused by the accident and whether it was reasonable and necessary in the circumstances.

36. [75]

    The Medical Assessor stated that he preferred the engineer’s “better” coloured photographs of the vehicles than those taken by Mr Zaroual. The photographs of both cars showed that the impact had only been minor, which was common ground between the parties.

37. [76]

    The medical opinions of Drs Slezak and Sekel were set out by the Medical Assessor when he referred to the insurer’s letter dated 23 May 2019. He noted that Drs Slezak and Sekel had previously examined Mr Zaroual. Both doctors had indicated that the need for surgery had arisen as a consequence of constitutional factors and was not related to injury arising from the accident. It was on that basis the insurer has denied the costs for the surgery. In other words, the Medical Assessor correctly outlined the medical opinions of Dr Slezak and Sekel and their view that the need for surgery was a consequence of constitutional factors, not the effect of the accident.

38. [77]

    As set out in the Medical Assessor’s decision, both the insurer and Mr Zaroual’s medico-legal experts agreed that Mr Zaroual had a longstanding pre-existing vertebral canal stenosis in his cervical spine. This was in part due to degenerative change and congenital pedicles. The Medical Assessor also agreed with this common view of the medical experts. What was left in issue for the Medical Assessor to determine was whether the accident caused aggravation of the underlying degenerative process which led to Mr Zaroual’s need for surgery, and if so whether the surgery was reasonable and necessary.

39. [78]

    This issue calls for a medical opinion, not the opinion of a biomedical and mechanical engineer. Earlier in this judgment, I set out the engineer’s report in some detail. Its contents cover matters such as a FOLKSAM of Sweden group study in relation to neck injuries in vehicle crashes. It appears that in that study, the results were extrapolated from crash pulse recorders of a sample size of only 34 real life impacts. The matters to which the engineer referred are outside the field of study and knowledge of a special medical practitioner. The Medical Assessor was not in a position to ascertain the veracity or otherwise of the graphs and findings made in the engineer’s report. In these proceedings, the speed and velocity of the accident were not in dispute, and the relevant opinion sought was that of a specialised medical practitioner such as the Medical Assessor.

40. [79]

    The Medical Assessor also referred to the findings of the prior Medical Assessor, Dr Home, who stated that Mr Zaroual had injuries caused by the motor vehicle accident which aggravated his underlying degenerative changes at C5/6 and C6/7. Medical Assessor Home stated that Mr Zaroual had early signs of myelomalacia and possible cervical myelopathy, and it was his opinion that the surgery would hopefully prevent any further deterioration. The Medical Assessor agreed with Medical Assessor Home’s opinion.

41. [80]

    The Medical Assessor also referred to the report of Mr Zaroual’s treating neurosurgeon, Dr McKechnie. Dr McKechnie indicated that he was satisfied that the accident has caused aggravation of the underlying degenerative process, and that this is associated with deteriorating clinical function over time. In particular, the Medical Assessor referred to Dr McKechnie’s report dated 7 August 2019, where Dr McKechnie noted that there had been changes in the degree of myelomalacia and it was for this reason that he had recommended the surgery should proceed. The Medical Assessor had conducted his own clinical examination, read the medical reports, viewed the MIR scan and agreed with Dr McKechnie’s opinion.

42. [81]

    A Medical Assessor’s statutory task was to form and to give his own opinion on the medical question referred for his opinion. As stated in Wingfoot, it goes too far to conceive the function of the Medical Assessor as being either to decide a dispute, or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Assessor is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. Rather, the function is in every case to form and to give its own opinion on the medical question referred to him by applying his own medical experience and expertise.

43. [82]

    In my view, for the reasons stated above, this is precisely what the Medical Assessor did. The Medical Assessor applied his own medical experience and expertise to give his opinion that the accident caused aggravation of the underlying degenerative process which led to Mr Zaroual’s need for surgery, which he concluded was reasonable and necessary. By so doing, the Medical Assessor correctly carried out his statutory task. The Medical Assessor has considered and responded to the insurer’s argument about whether the plaintiff’s injury was due to a constitutional and degenerative condition not related to the accident, and whether the accident aggravated this underlying degeneration. As such, he provided procedural fairness to both parties. Grounds 1 and 2 of the judicial review fail.

44. [83]

    The failure of a decision maker to take into account a relevant consideration is a valid ground for judicial review. This ground for judicial review can only be made out if the decision maker was bound to take into account the relevant consideration.

45. [84]

    A determination as to whether a decision maker is bound to take into account a relevant matter is determined by construction of the relevant statute conferring the discretion. Where the discretion is unconfined by the statute, the factors which the decision maker is bound to take into account is similarly unconfined.

46. [85]

    The insurer submitted that the Medical Assessor was required, by operation of s 58 of the MAC Act, to determine whether the surgery related to an injury caused by the accident.

47. [86]

    The Guidelines issued in accordance with s 44 of the MAC Act provide for the submission of applications and supporting documentation. The insurer submitted that the Medical Assessor, by virtue of the statute and accompanying Guidelines, was bound to take into account the respective contentions and supporting evidence in determining the medical assessment matter. To do otherwise would be a fundamental failure to exercise jurisdiction and amount to jurisdictional error.

48. [87]

    For the reasons traversed in respect to grounds 1 and 2 above, the insurer submitted that the Medical Assessor failed to take into account at all the plaintiff’s contentions and accompanying evidence as to why the surgery did not relate to injuries caused by the accident.

49. [88]

    Mr Zaroual submitted that the insurer’s complaint on this ground is that the Medical Assessor failed to have regard to relevant considerations, being the opinions of Dr Slezak and Dr Sekel and the engineer. In this way, ground 3 is merely a different articulation of grounds 1 and 2.

50. [89]

    Moreover, Mr Zaroual submitted that ground 3 rests on a mistaken legal foundation. It invites the Court to make the same error that the Court of Appeal identified in De Gelder at [84] to [86]:

51. [90]

    Mr Zaroual noted that is well settled that a relevant consideration, for judicial review purposes, is one that is required by the empowering statutory instrument and not the evidence specific to the facts of the matter.

52. [91]

    As such, the opinions of Drs Sekel and Slezak and the engineer do not fall within the category of mandatory considerations. They are not in the nature of mandatory guidelines or statutory provisions. Rather, the insurer invites a review of the merits of the matter instead of identifying a legal error as required to enliven the supervisory jurisdiction of the Court.

53. [92]

    Mr Zaroual submitted that even if the opinions were relevant considerations for the purposes of judicial review, not only did the Medical Assessor consider the opinions of Dr Sekel and Dr Slezak, but adopted their positions in relation to the damage to discs and pre-existing degenerative conditions. The Medical Assessor was not only entitled to, but was required to reach his own medical conclusions.

54. [93]

    Accordingly, Mr Zaroual submitted that the insurer’s position is not maintainable. The opinions of Drs Sekel and Slezak and the engineer were read, considered and to a limited extent, agreed with by the Medical Assessor.

55. [94]

    As expressed earlier in judicial review grounds 1 and 2, the Medical Assessor took into account the opinions of Drs Sekel and Slezak and the engineer in his determination. It is my view that the Medical Assessor did not fail to take the relevant these considerations into account. This ground of judicial review fails.

56. [95]

    The insurer referred to Wingfoot at [43], where the High Court stated:

57. [96]

    In Campbelltown City Council v Vegan & Ors [2006] NSWCA 284 (“Vegan”), Basten JA (with whom Handley and McCall JJA agreed) stated at [121]-[122]:

58. [97]

    The insurer submitted that the Medical Assessor had two medical reports expressing an expert opinion on the issue of whether the surgery related to an injury caused by the accident. Additionally, the Medical Assessor was provided with the biomechanical report of the engineer.

59. [98]

    The insurer submitted that the Medical Assessor’s reasons for determining that the surgery was causally related to the accident consisted of no more than a restatement of the opinion of Dr McKechnie and an acknowledgement that the Medical Assessor agreed with that opinion. The Medical Assessor did not consider the opinions which differed from Dr McKechnie.

60. [99]

    The insurer submitted that the Medical Assessor was required, in determining the dispute, to consider the competing medical opinions. To the extent that the Medical Assessor preferred a particular medical opinion on the issue, there was a fundamental obligation to provide some explanation for preferring the opinion of Dr McKechnie. As noted in Vegan, where the medical science “was controversial”, a “more expansive explanation” was required.

61. [100]

    It is the insurer’s case that the Medical Assessor gave no explanation, let alone an expansive explanation, for preferring the opinion of Dr McKechnie over the opinions of three experts to the contrary. The Medical Assessor failed to provide the path of reasoning in determining the causation issue in any detail, let alone sufficient detail to enable the Court to see whether the opinion involved an error of law. This failure amounts to an error of law on the face of the record, and in circumstances it is appropriate that an order in the nature of certiorari be made removing the legal effect of the opinion.

62. [101]

    Mr Zaroual submitted that on any reading, let alone one with a beneficial construction, the insurer has unfairly characterized the Medical Assessor’s reasons. It is not fair to say that the Medical Assessor did no more than to agree with Dr McKechnie. Rather, he set out and agreed with the views of a number of other experts, including Medical Assessor Home and, in part, the insurer’s experts.

63. [102]

    Mr Zaroual submitted that the insurer’s submissions fail to accord with the principle of beneficial construction required by the High Court in Wu Shan Liang. The Medical Assessor’s decision must be read as a whole. For the reasons provided in relation to the previous grounds, Mr Zaroual submitted that the Medical Assessor plainly provided his path of reasoning in concluding that he agreed with the opinion of Dr McKechnie.

64. [103]

    This is the same kind of process that was found to be reasonably open to the Medical Assessor by this Court in NRMA Insurance v Koic [2019] NSWSC 1674 at [82] - [97] (“Koic”). In Koic, Harrison AsJ stated at [96]:

65. [104]

    As in Koic, all of the findings of the Medical Assessor here were reasonably open to be made, and having regard to the decision as a whole, the Medical Assessor provided a path of reasoning that was easily discernible.

66. [105]

    At p 7 of the decision, the Medical Assessor noted the MRI dated 26 February 2019 and identified that Mr Zaroual had degenerative conditions. He then cited the reports of Dr McKechnie and the consistent reports that Mr Zaroual’s condition was as a result of aggravation of his pre-existing condition. The Medical Assessor also cited Medical Assessor Home’s assessments and the consistent conclusion that the accident was a key aggravating factor, causally relating to the Mr Zaroual’s condition at the time of assessment. Critically, the Medical Assessor stated at p 8:

67. [106]

    Further, Mr Zaroual submitted that the Court of Appeal has determined that adopting reports of others into a path of reasoning is not an error of law, and on the contrary is perfectly acceptable in administrative decision making. The obligations of the Medical Assessor, consistently with the MAC Act and the Guidelines, is to provide a path of reasoning as efficiently and briefly as possible while making those reasons in accordance with the common law obligations.

68. [107]

    Not only did the Medical Assessor provide a clear path of reasoning, but he explained how and why he preferred the reasoning of Dr McKechnie over the competing views of the insurer’s experts.

69. [108]

    Mr Zaroual further noted that in relation to the passage in Vegan to which the insurer referred, what the case requires is that a decision maker explain his preference for one conclusion over another. He is not required to explain why he accepted some evidence over other evidence. The latter proposition would be at odds with Wingfoot and Cervantes.

70. [109]

    What the Medical Assessor has disagreed with is the insurer’s contention that there was no a causal relationship between the accident and the subsequent requirement for surgery. The Medical Assessor explained why he come to his conclusion that the treatment was causally related and reasonable and necessary. Mr Zaroual submitted that the insurer’s real complaint is not that the path to this decision was not exposed, but rather that the Medical Assessor did not accept its argument.

71. [110]

    In his decision, the Medical Assessor first identified the scope of the evidence. He examined the opinions and reports of Dr Sekel and Dr Slezak, as well as the report of the engineer, before proceeding to balance those positions with the opinions of Dr McKechnie and Medical Assessor Home, and the evidence of Mr Zaroual during the clinical examination. Specifically, the Medical Assessor agreed with both Drs Slezak and Sekel in their opinions that Mr Zaroual suffered from a pre-existing condition. The Medical Assessor then expressly stated that the conclusions of the report of the engineer in relation to the nature of the incident were consistent with the evidence given by Mr Zaroual. Ultimately, the Medical Assessor concluded that the accident caused a soft tissue injury and an aggravation of his pre-existing degenerative condition, such that the need for surgery was causally related to the accident, and reasonable and necessary under the circumstances.

72. [111]

    For these reasons, it is my view that the Medical Assessor has exposed the actual path of reasoning by which he arrived at his decision. His reasoning meets the standard required, allowing a reader to determine whether his decision involved an error of law. As such, the Medical Assessor’s decision does not involve an error of law. This ground of judicial review fails.

The Proper Officer’s reasons

1. [112]

   The last issue to be dealt with is whether the Proper Officer applied the correct test in dismissing the insurer’s application for review.

2. [113]

   In its application dated 26 November 2019, the insurer sought a review of the Medical Assessor’s decision pursuant to s 63 of the MAC Act on grounds that the assessment was incorrect in a material respect. In support of the application, the insurer provided detailed written submissions identifying the alleged errors as articulated in judicial grounds 1 to 4. The submissions alleged a constructive failure to exercise jurisdiction and a failure to provide adequate reasons for the decision.

3. [114]

   These submissions referred to the matters traversed above in the grounds of judicial review, and identified the relevant authorities in support of the application. The claimed errors, supported by the authorities, are the same as those identified in these proceedings and further articulated in these submissions.

4. [115]

   Section 63 of the MAC Act required the Proper Officer to determine merely whether there was “reasonable cause to suspect that the medical assessment was incorrect in a material respect”. The Proper Officer dismissed the insurer’s application on that basis. The insurer submitted that in the event that the Court in these proceedings is satisfied that the Medical Assessor has fallen into jurisdictional error on any of the four grounds of judicial review, it must follow that the Proper Officer has fallen into error in dismissing the insurer’s application for review of the medical assessment pursuant to s 63 of the MAC Act.

5. [116]

   Mr Zaroual submitted that the insurer has not pointed to a demonstrable error on the face of the record in the decision of the Proper Officer. Instead, the insurer relies on an inference of error based solely on establishing error in the decision of the Medical Assessor. On this basis alone, the insurer asserts misapplication of jurisdiction or legal unreasonableness on the part of the Proper Officer. Given that the Medical Assessor’s decision was sound, Mr Zaroual submitted that the insurer’s challenge to the Proper Officer’s decision must fail.

6. [117]

   The statutory task before the Proper Officer was to determine whether he was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application. Review proceedings in respect to the determination of a Proper Officer “are limited to determining whether [his] opinion has been properly formed according to law”. Critically, the issue is “whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.

7. [118]

   Read fairly and as a whole, Mr Zaroual submitted that the decision of the Proper Officer was entirely open to be made. His reasons demonstrate logical, lawful and reasonably founded conclusions. Mr Zaroual submitted that the Proper Officer was not in error given that none of the four grounds of judicial review in relation to the Medical Assessor’s reasons have been made out.

8. [119]

   The Proper Officer addressed the insurer’s complaints in detail and concluded that the decision of the Medical Assessor was not only clear, but also well justified. The Proper Officer stated that Dr McKechnie had recommended the surgery, and after considering all the evidence, the Medical Assessor had determined that the surgery was reasonable and necessary and causally related to the accident. For the reasons given in relation to the four grounds of judicial review above, the Medical Assessor was right to do so. The Proper Officer was not satisfied that there was reasonable cause to suspect the medical assessment was incorrect in a material respect.

9. [120]

   In my view, the Proper Officer’s decision has been properly formed according to law. The Proper Officer applied the correct test. This ground of judicial review fails.

The result

1. [121]

   The result is that the insurer’s application for judicial review fails. The decisions of the Medical Assessor dated 28 October 2019 and the Proper Officer dated 30 January 2020 are affirmed. The amended summons filed 28 July 2020 is dismissed.

Costs

1. [122]

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