Clinton McGiffen v AAI Limited t/as GIO, as agent for Nominal Defendant

1. [1]

   HIS HONOUR: The plaintiff, Clinton McGiffen, seeks judicial review of the decision (comprised of a certificate and statement of reasons) of the Motor Accident Authority, the quashing of the certificate and statement of reasons and orders remitting the matter back to the Motor Accidents Authority to deal with in accordance with law.

2. [2]

   Shortly stated, on 2 September 2008, the plaintiff was knocked off his motorbike by a motorcar merging into his lane. He was taken by ambulance to Westmead Hospital where he was diagnosed with a fractured left tibia and fibula. These were treated by an orthopaedic surgeon by open reduction and internal fixation. He was in hospital for approximately one week.

3. [3]

   Apparently, the healing of the fracture was delayed and Mr McGiffen was unable to bear weight for about eighteen months. Some months after that, slow healing was noted and eventually, he returned to full weight bearing.

4. [4]

   About eighteen months after the motor vehicle accident, which coincides with the time at which his capacity to bear weight returned, Mr McGiffen noted discomfort in the middle of the back, somewhere between the lower thoracic spine and the lumbar-sacral area of his spine.

5. [5]

   Following the accident, Mr McGiffen sought compensation under the Motor Accidents Compensation Act 1999 and a number of certificates were subsequently issued in relation to the assessment of the injury.

6. [6]

   Liability for the injury was not in issue, leaving aside for present purposes the involvement of the nominal insurer, but the degree, if any, to which the symptoms said to be suffered by Mr McGiffen were the result of the motor vehicle accident was very much the issue in question.

7. [7]

   On 23 November 2011, Assessor Schutz of the Motor Accidents Authority issued a certificate to the effect that the thoracolumbar and lumbar spine soft tissue injury and digestive system injury, if any, was not yet permanent (Courtbook, page 31). Reasons for that decision were provided.

8. [8]

   On 20 January 2014, Assessor Richard Crane issued a certificate that the degree of permanent impairment of Mr McGiffen as a result of the relevant injury caused by the motor accident was 0% because none of the injuries referred to him related to the motor vehicle accident or were caused by it. Reasons for that certificate were provided.

9. [9]

   On 2 June 2014, a Review Panel, consisting of Assessors Ian Cameron, Robin Fitzsimons and John Carter, issued a decision dismissing Mr McGiffen’s appeal and confirming the certificate dated 20 January 2014 and, also, finding that none of the injuries referred for assessment were “related to the motor accident”. The Review Panel issued reasons during which they agreed with the findings of Assessor Crane that:

10. [10]

    The plaintiff seeks judicial review of these decisions. It is necessary briefly to recite a chronology of some of the events.

Chronology

1. [11]

   The plaintiff was born on 20 May 1983 and was 26 at the date of the accident on 2 September 2008.

2. [12]

   As earlier stated, at the time of the accident, 2 September 2008, the plaintiff was transported from the accident scene to Westmead Hospital by ambulance. The triage notes from the hospital are in the following terms:

3. [13]

   The emergency department trauma admission secondary survey noted “tenderness over lumbar-thoracic spine” on examination.

4. [14]

   Surgery was performed by Dr Edward Graham, an orthopaedic specialist, to repair a severely comminuted fracture of the plaintiff’s left tibia and fibula, a laceration to the left knee below the patella, a defect in the patella tendon, and a wound over the anterior aspect of the middle tibia where bone had protruded through the skin.

5. [15]

   I hereunder extract from the plaintiff’s chronology those matters relevant, directly or by way of background. These entries are uncontroversial in any respect relevant to the issues in the proceedings before this Court.

Assessments

1. [16]

   As earlier stated, the assessment of 23 November 2011 by Assessor Schutz determined that certain injuries, being the thoracolumbar and lumbar spine soft tissue injury and aggravation to the digestive system caused by medication taken for pain relief, gave rise to an impairment which is not yet permanent and declined to make an assessment of the degree of permanent impairment, pursuant to s 132(3) of the Motor Accidents Compensation Act. The Assessor suggested that these injuries would be capable of assessment in or about nine months time.

2. [17]

   Nevertheless, during the course of the statement of reasons, Assessor Schutz describes the thoracolumbar and lumbar spine soft tissue issue in the following terms:

3. [18]

   The reasons by Assessor Schutz also referred to the aggravation to the plaintiff’s digestive system caused by medication and noted that the plaintiff had significant pain and had become addicted to OxyContin. The OxyContin caused constipation and as a result the plaintiff experienced gastrointestinal symptoms since 2009.

4. [19]

   Of more importance are the terms of the statement of reasons of 20 January 2014 by Assessor Richard Crane. The reasons list the injuries to be assessed as the thoracic spine soft tissue injury; lumbar spine non-united fractures at L1; foraminal narrowing at L5/S1; irritation of L5 nerve root; facet joint arthrosis at L5/S1; disc protrusion at L4/5; soft tissue injury; and the digestive system aggravation caused by the medication.

5. [20]

   These reasons for assessment also state the history of the motor accident and the history of symptoms and treatment following the motor accident in similar terms to the summary provided in these reasons. The reasons for assessment note the recommendation and implementation of a cortisone injection on the right side and the lack of beneficial effect following that injection.

6. [21]

   The reasons for assessment then review the documentation, including relevant imaging and X-rays, noting, particularly, the X-ray of the thoracic and lumbosacral spine area by Dr Hunjan on 9 December 2011, the MRI of the lumbar spine reported by Dr Sabharwal on 13 March 2012 and the documents otherwise found in Exhibit A at pages 228, 288 and 290. There was also an MRI of the thoracic spine area reported by Dr Cahll on 2 October 2013.

7. [22]

   Having summarised the relevant documentation, Assessor Crane’s reasons for assessment concludes in the following terms:

8. [23]

   Further, under the heading “Degree of Permanent Impairment” the reasons for assessment notes:

9. [24]

   As earlier stated, the foregoing assessment of permanent impairment by Assessor Crane was the subject of review pursuant to s 63(3) of the Motor Accidents Compensation Act. The Review Panel confirmed the assessment of Assessor Crane that the thoracic or lumbar spine injuries, if any, were not as a result of the subject motor vehicle accident and that there was no assessable impairment for the digestive system resulting from the use of medications to control pain.

10. [25]

    The Review Panel, in its reasons for assessment, stated that it had considered afresh all aspects of the assessment and that, on the available evidence, it had decided that a “re-examination of [the plaintiff] was not necessary because of the extensive documentation provided and the history documented and the clinical findings on examination of [the plaintiff] by Assessor Crane were sufficient to address the issues raised in the Review”.

11. [26]

    In its reasons for assessment, under the heading “Panel Deliberations”, the Panel referred to each of the alleged injuries with which they were required to deal. In relation to the alleged thoracic spine-soft tissue injury, the Panel made the following comments:

12. [27]

    In relation to the lumbar spine injuries, previously described, the Panel made the following comment:

13. [28]

    In relation alleged aggravation to the digestive system caused by medication, the Panel noted that the alleged injuries were a statement of symptoms, rather than a specific injury. Further, because the prescription of the medication is largely a result of injuries that were not said to be causally related to the motor vehicle accident, any resulting symptoms associated with the intake of the medication cannot be causally related to the motor vehicle accident.

The Motor Accident Compensation Act

1. [29]

   The principles applicable to judicial review are applied in the context of the statute under which the administrative power is said to arise. The structure of and obligations in the Motor Accidents Compensation Act have been summarised on a number of occasions. It is unnecessary to repeat, at length, that summary. It is sufficient, for present purposes, to adopt the analyses previously described and I refer, particularly, to the judgment of the Court in NRMA Insurance Ltd v Ainsworth [2011] NSWSC 344; Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; Allianz Australia Insurance Ltd v Cervantes [2011] NSWSC 1296 and Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264. In the last mentioned reasons for judgment, Young JA at [48]-[50] said:

2. [30]

   The Motor Accidents Compensation Act provides for a medical assessment process that is informal and conducted when there is a dispute between the claimant and insurer about the degree of permanent impairment, including whether a particular injury, if suffered, is or was, caused by the accident to which the claim for compensation relates: s 58(1)(d) of the Motor Accidents Compensation Act.

3. [31]

   As a consequence of the referral to a medical assessor, the assessor will issue a certificate, which is conclusive of the matters contained in that certificate: s 61(2) of the Motor Accidents Compensation Act. The medical assessor must include reasons for the findings made in the certificate: s 61(9) of the Motor Accidents Compensation Act.

4. [32]

   As is obvious from the foregoing recitation of facts, a party to a medical dispute may apply to have that determination by an assessor reviewed by a Review Panel. Medical assessors, including members of a Review Panel, are medical practitioners usually with some expertise or speciality in the area under assessment. On review, a Review Panel must conduct a new assessment and not an appeal or review of the original assessment: s 63(3A) of the Motor Accidents Compensation Act.

5. [33]

   Pursuant to s 44 of the Motor Accidents Compensation Act, the Authority issues Permanent Impairment Guidelines (Guidelines) to assist medical assessors and, as contained in Clause 1.7 of the Guidelines, the Authority has expressed, correctly, the view that the determination of whether the claimant’s symptoms and impairment are related to the accident is implied in all such medical assessments.

Principles of Judicial Review

1. [34]

   As a consequence of the process established by the Motor Accidents Compensation Act, it is not for the Court on judicial review to supplant the process that the legislature has remitted to the Authority. Judicial review is not an appeal. Nor is judicial review concerned with the merits of a determination.

2. [35]

   In order for the Court’s jurisdiction to be invoked to make orders under s 69 of the Supreme Court Act 1970 in the nature of certiorari, or other appropriate remedies, there must be an error of law on the face of the record (as defined by s 69 of the Supreme Court Act) or jurisdictional error. The correction of an error of law is a process that is significantly different from the correction of an incorrect decision on the merits of a controversy.

3. [36]

   The High Court in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 drew particular attention to the distinction between merits review and judicial review. In Attorney-General (NSW) v Quin, Brennan J at [35]-[36] said:

4. [37]

   To similar effect are the comments of Hayne J in Edwards v Santos Ltd [2011] HCA 8; (2011) 242 CLR 421 at [18], where his Honour, citing with approval the judgment of the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 175 said:

5. [38]

   As earlier stated, orders issued in proceedings for judicial review depend upon an error of law or error of jurisdiction. It is unnecessary to deal at length with that which would amount to an error of law or jurisdictional error. It is sufficient for present purposes to remark, somewhat tritely, that when a decision maker has failed to take into account a criterion required by law to be considered, or has taken into account a criterion that was impermissible, or has utilised the wrong test or asked itself the wrong question, or misapprehended the nature or limits of its power and, as a consequence of which, it performed an act or made a decision which authority does not sanction, there will be error of law and often jurisdictional error: Craig v South Australia; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

6. [39]

   Jurisdictional error may occur either as a result of a want of jurisdiction or an excess of jurisdiction: see McHugh J in Public Service Association (SA) v Federated Clerks Union of Australia [1991] HCA 33; (1991) 173 CLR 132 at 165. A want of jurisdiction occurs when an act is beyond the general power or authority of a court or tribunal and an excess of jurisdiction occurs when the act, the doing of which is otherwise within the court’s or tribunal’s general power or authority, was done in breach of the conditions which authorised the doing of acts of that class or nature.

7. [40]

   More recently, the passage in the judgment of Mason J in Aboriginal Affairs v Peko-Wallsend Ltd relating to decisions that are “manifestly unreasonable” has been considered: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. It is unnecessary to consider these issues further.

8. [41]

   It is sufficient to reiterate that the courts must be careful to ensure that they do not elide the distinction between merits review and judicial review, otherwise they are “apt to encourage a slide into impermissible merit review”: Swift v SAS Trustee Corp [2010] NSWCA 182 at [45] per Basten JA.

Grounds of Review

1. [42]

   The Amended Summons, filed 9 October 2014, challenges the assessment by Assessor Richard Crane, the third defendant in the proceedings, and the assessment by the Review Panel, the members of which are the fourth defendant in the proceedings. The need to challenge the assessment initially made is not immediately apparent. The terms of the Motor Accidents Compensation Act, as already stated, provide a means of reviewing a medical assessment, of which the plaintiff took advantage. The extant certificate, and the reasons in support thereof, is that issued by the Review Panel on 2 June 2014. However, the Review Panel “confirmed” the original assessment.

2. [43]

   I accept that each assessment has been the subject of challenge and, possibly as a result of the Review Panel’s confirmation of the original assessment, it was thought necessary to seek judicial review of each. If there be error in the Review Panel, then the same error will have infected the original assessment. Nevertheless, given the existence of a statutory right of review, there are serious issues, with which the plaintiff did not deal, as to whether this Court would ever exercise its jurisdiction on judicial review in the circumstance that there is an application for a review outstanding and in the absence of a valid exercise of that review jurisdiction. It is unnecessary to deal with the matter further.

3. [44]

   The terms of the Amended Summons, insofar as they specify the grounds for the judicial review, is discursive in style making it difficult to ascertain precisely the grounds upon which the decisions are challenged. The plaintiff relies on both jurisdictional error and error of law on the face of the record.

4. [45]

   In relation to the assessment by Assessor Crane of the causation of the injuries to the lumbar spine, thoracic spine and digestive system the plaintiff alleges that the findings were not supported by any probative evidence and were irrational and illogical. Further, the plaintiff submits that Assessor Crane asked himself the wrong question and applied the wrong test as to causation and to the process of fact finding. Thirdly, the plaintiff submits that Assessor Crane did not comply with the obligation or duty to inquire and, finally, the plaintiff submits that Assessor Crane did not provide the plaintiff procedural fairness in the process.

5. [46]

   In relation to the decision of the Review Panel, again, the plaintiff alleges both jurisdictional error and error on the face of the record constituted by:

Causation Issue

1. [47]

   Earlier in these reasons for judgment, I recited the relevant passages in the reasons for assessment of Assessor Crane and of the Review Panel insofar as they deal with the alleged injuries to the thoracic or lumbar spine. As is made clear by Assessor Crane under the heading “Diagnosis and Causation”, the Assessor relied entirely on the lack of contemporaneous evidence or notes of an injury to the thoracic or lumbar spine and the fact that the first mention of any symptom in the back occurred nine months after the motor vehicle accident. The Review Panel agrees with the finding as to the lack of evidence and explains that a description of “a plausible mechanism of injury to a spinal region is not a reason to accept that an injury has actually occurred”.

2. [48]

   There are two fundamental difficulties with the approach of the Assessor and of the Panel. First, the comment by Assessor Crane as to the lack of contemporaneous evidence to indicate injury to the thoracic or lumbar spine does not deal with the emergency department trauma admission secondary survey note of 2 September 2008 (see [12] above), which recites that there was “tenderness over lumbar-thoracic spine” on examination. The Review Panel repeats the error.

3. [49]

   It is possible, perhaps probable, that the doctors, being Assessor Crane and the members of the Review Panel, took the view that “tenderness over lumbar-thoracic spine” was not “evidence of an injury to the area”. If that were the case, that conclusion would need to be expressed.

4. [50]

   Otherwise, plainly there is evidence of an injury (whether or not permanent) to the lumbar-thoracic spine region contemporaneous with the accident itself and noted independently on examination by the emergency department at Westmead Hospital. As a consequence, there is evidence that prevents both Assessor Crane and the Review Panel from coming to the crucial finding of fact that “there was no evidence of any injury” to this area.

5. [51]

   As is well known, a finding of fact for which there is no evidence is an error of law.

6. [52]

   The second fundamental problem is the question that the Panel (and Assessor Crane) asked itself. It is now well recognised that a medical history taken for the purpose of other major medical issues may often ignore what, at the time, seems a subsidiary or minor issue. In Owen v Motor Accidents Authority (NSW) at [52], Campbell J held that the Review Panel had wrongly treated the absence of contemporaneous documentation as decisive on the issue of causation. His Honour said:

7. [53]

   In this case, the relevance on the absence of contemporaneous evidence is even more problematic. The plaintiff’s claim, in part, is that the major symptoms in relation to the thoracic or lumbar spine injury did not manifest for some period because of the treatment regime implemented for the injuries to other parts of his body. In particular, the plaintiff did not bear weight for a significant period and it was only after the plaintiff did so that the injury to the back was manifest.

8. [54]

   As is made clear in Clauses 1.8 and 1.9 of the Guidelines, and as is generally the approach of the common law, causation means “that a physical, chemical or biological factor contributed to the occurrence of a medical condition”. In deciding such a question, the issue that must be determined is whether the injury caused “or contributed to worsening” of the impairment; it does not have to be the sole cause, provided it is a contributing cause that is more than negligible. Further, causation can be direct or indirect. Neither of these issues was addressed by either Assessor Crane or the Review Panel.

9. [55]

   The first defendant submits that the plaintiff’s complaint seeks to have this Court examine merits rather than judicial review. I have dealt with the difference between these types of review earlier in these reasons. I accept, as does the Court more generally, that decision makers should not be subjected to “minute and detailed textual criticism”, but this complaint is not in that category. Rather, it challenges a finding for which there is no evidence and against which there is evidence to the contrary. It also challenges the general approach taken by Assessor Crane and the Review Panel in reaching that finding. The first defendant submits that the note to which reference has been made is “not conclusive evidence of injury”, rather, it is only evidence of tenderness. The other evidence of the lumbar-thoracic spine injury, including MRIs, related to periods from approximately one year and three months after the date of the accident until five years and one month after the accident and totalled four summaries or reports of injury.

10. [56]

    Assuming, without deciding, that the note written by the Emergency Department of Westmead Hospital upon examination of the plaintiff, is not “conclusive evidence of injury”, it is evidence contemporaneous with the accident that supports an injury to the lumbar-thoracic spine. It is therefore inconsistent with a finding that there was “no evidence of an injury” to that spinal region.

11. [57]

    Further, later examinations and assessments are consistent with an injury to the lumbar-thoracic spine area. In the absence of any evidence of an alternative explanation for that later (and conclusive) evidence of injury to the plaintiff’s lumbar-thoracic spine and in the presence of contemporaneous evidence of that injury, it is irrational and illogical for the Assessor and the Review Panel to base their conclusions on the absence of any evidence of an injury. In this regard, the notes summarised in the chronology for the entries on 2 September 2008, 11 December 2011, 14 December 2009, 25 May 2010, 23 August 2010, 12 October 2010, 14 October 2010, 28 March 2011 and 9 December 2011 (absence of degenerative changes) are particularly apposite.

12. [58]

    Further, as expressed by Campbell J in the foregoing cited judgment, the test of causation is not confined to the immediate effects of the accident. If the lumbar-thoracic injury was caused by the treatment to the other injuries resulting from the accident (assuming that treatment was reasonable and did not break causation), the question that Assessor Crane and the Review Panel were required to ask themselves was only partly determined by an answer to the question of whether there was immediate or contemporaneous complaint of the injury to the lumbar-thoracic spine area.

13. [59]

    In asking itself the question it did and deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence (even if they were correct in their view on the lack of contemporaneous evidence), Assessor Crane and the Review Panel have only partly asked the question that was necessary to be asked and, as a consequence, have answered the wrong question and determined causation on the wrong basis.

14. [60]

    As has been adumbrated by many in this Court, the presence or absence of contemporaneous evidence of injury was relevant but not determinative: see, amongst others, Budget v Fox [2014] NSWSC 888, per RS Hulme AJ at [31]-[32].

15. [61]

    The foregoing, in my view, makes out the plaintiff’s case that the decisions of Assessor Crane and of the Review Panel are vitiated by error of law and error of jurisdiction. The error of jurisdiction is to ask itself the wrong question and apply the wrong test of causation and the error of law is to conclude a crucial fact, determinative of the claim, on the basis of no evidence or, to the extent necessary, on the basis of no probative evidence: see Skiwing Pty Ltd v Trust Co of Australia t/as Stockland Property Management [2006] NSWCA 276 at [52] per Spigelman CJ, with whom, relevantly, Hodgson and Bryson JJA agreed.

16. [62]

    As a result of the foregoing finding, it is unnecessary to explore the plaintiff’s other grounds of challenge. Nevertheless, the analysis of Garling J in Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583 at [54]-[68], with which analysis I respectfully agree, is apposite to the submission that the Review Panel misunderstood its task and dealt with the matter as an “appeal”, as distinct from a fresh assessment. It is unnecessary to decide these and the other issues raised.

17. [63]

    As a consequence of the foregoing, the Court makes the following orders:

    1. (1)

       A declaration that the certificate and statement of reasons issued by Assessor Crane on 20 January 2014 is vitiated by error of law on the face of the record or jurisdictional error;

    2. (2)

       A declaration that the certificate and statement of reasons issued by the Review Panel on 2 June 2014 is vitiated by error of law on the face of the record and/or jurisdictional error;

    3. (3)

       The certificate and statement of reasons issued by Assessor Crane on 20 January 2014 be quashed;

    4. (4)

       The certificate and statement of reasons issued by the Review Panel on 2 June 2014 be quashed;

    5. (5)

       The plaintiff’s claim for compensation under the Motor Accidents Compensation Act be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law;

    6. (6)

       The first defendant shall pay the plaintiff’s costs of and incidental to these proceedings, as agreed or assessed. Either party may apply for a special or different order as to costs by filing within 14 days of the date of this judgment a submission in relation thereto and may, for that purpose, include documents said to be relevant to that application, which documents are not otherwise in evidence. The aforesaid submission (excluding attached documents of the kind mentioned) shall be no more than 3 pages in length. Any other party may respond to any such application within a period of 14 days from the date of receipt of any such application. Such response is also confined to 3 pages in length. In the absence of an application for a different course, the question of costs will be dealt with on the basis of the written submissions.