McHenry v Insurance Australia Limited t/as NRMA Insurance

1. [1]

   HIS HONOUR: Samara McHenry was injured in a serious motor vehicle collision that occurred on 13 March 2010. She was then almost 50 years old. The insurer admitted liability. Ms McHenry filed a claim for compensation in accordance with the provisions of the Motor Accidents Compensation Act 1999, and a claim for monetary damages, with the State Insurance Regulatory Authority.

2. [2]

   Ms McHenry was assessed for limited purposes on 21 February 2011 by Associate Professor Paul Myers. He issued a certificate under Part 3.4 of the Act on 28 February 2011 dealing with the issue of whether certain treatment, namely “Bowen treatment regarding neck strain, back strain, strain to both shoulders, strain to the hips and strain to the legs” to be provided to Ms McHenry was reasonable and necessary. He concluded that it was not.

3. [3]

   On 15 April 2013, misdescribed in the defendant’s chronology as “15 July 2013”, Ms McHenry made an application for assessment of a permanent impairment dispute by the Medical Assessment Service. She attached a significant amount of material to that application, including the clinical records of the John Hunter Hospital at which she was treated on admission immediately following the accident. Question 25 on that form asked “What are your injuries from the accident?” Ms McHenry answered that question as follows:

4. [4]

   On 11 October 2013, Ms McHenry was assessed by Dr Clive Kenna. He issued a certificate under Part 3.4 of the Act on 28 October 2013 in which he concluded that Ms McHenry’s soft tissue injuries to her neck and back and the soft tissue/bony injuries to her knees gave rise to a permanent impairment “which is not greater than 10%.”

5. [5]

   Following that assessment, Ms McHenry made an application on 9 May 2017 for further assessment of a permanent impairment dispute by the Medical Assessment Service. Ms McHenry was assessed by Dr David Lewington on 11 September 2017. He issued a certificate under Part 3.4 of the Act on 14 September 2017 in which he concluded that Ms McHenry’s injuries gave rise to a permanent impairment which was greater than 10%, namely 17%. Dr Lewington indicated that the injuries referred to above were caused by the accident. He concluded that Ms McHenry’s bilateral hip and shoulder injuries were not caused by the accident.

6. [6]

   On 30 October 2017, the insurer sought a review of that decision. In support of that application, the insurer made detailed written submissions that included the following:

7. [7]

   Ms McHenry replied to those submissions on 16 November 2017. They were as follows:

8. [8]

   The insurer’s application for review was determined on 4 January 2018 by Mr Glen Waterhouse, who was the State Insurance Regulatory Authority Proper Officer. This is the first decision under review in these proceedings. Mr Waterhouse was satisfied that there was reasonable cause to suspect that the medical assessment of Dr Lewington was incorrect in a material respect. His reasons for coming to that conclusion include the following:

9. [9]

   The matter thereafter proceeded to a Medical Assessment Service Review Panel, consisting of Drs Cameron, McCarthy and Buckley, on 2 May 2018. Their Review Panel Certificate was issued under Part 3.4 of the Act on 21 May 2018. This is the second decision under review in these proceedings. The panel revoked the certificate dated 14 September 2017 issued by Dr Lewington and issued its new certificate in which the panel determined that only Ms McHenry’s soft tissue cervical spine injury was caused by the motor vehicle accident and gave rise to a whole permanent impairment which, in total, was not greater than 10%. The certificate contained details of the panel’s deliberations, among other matters, as appears in the following extract:

10. [10]

    The Panel concluded that with the exception of the soft tissue injury to Ms McHenry’s cervical spine, none of the other injuries was caused by the motor vehicle accident. The degree of whole person impairment that resulted from injuries that were caused by the accident was accordingly assessed to be 0%. It follows that Ms McHenry’s total whole person impairment is not greater than 10%.

11. [11]

    These proceedings were thereafter commenced by summons filed on 17 August 2018. An amended summons was filed on 5 October 2018. I granted leave to Ms McHenry to file a further amended summons which seeks the following substantive relief:

    1. (1)

       An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the “proper officer” of the second defendant, namely, the determination dated 4 January 2018 made on the application of the first defendant to refer the medical dispute to a medical assessors review panel purportedly pursuant to s 63 of the Motor Accidents Compensation Act 1999 (the referral decision).

    2. (2)

       An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision or medical assessment and certificate of the third defendant, the medical assessors review panel as was constituted by the State Insurance Regulatory Authority, the second defendant, namely, the assessment dated 21 May 2018 made purportedly pursuant to ss 63 and 61 of the Act (the review panel decision).

    3. (3)

       An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the referral decision or the review panel decision or either of them.

    4. (4)

       An order in the nature of mandamus remitting the matters the subject of the assessment decision and/or the review decision of the second defendant for reallocation of the matter to a different proper officer and/or a differently constituted medical assessors review panel for determination of the matters according to law.

    5. (5)

       An extension of time to commence judicial review proceedings in respect of the referral decision to the date of filing this summons.

12. [12]

    Counsel for the insurer indicated that this extension of time sought by Ms McHenry was not opposed and I granted it.

Motor Accidents Compensation Act – relevant provisions

1. [13]

   Part 3.4 of the Act is concerned with medical assessment. “Medical assessment matters” are defined in s 57 to mean any of the matters referred to in s 58. That section provides as follows:

2. [14]

   Medical assessors are defined as persons appointed under Part 3.4 to make medical assessments under that Part. Pursuant to s 59, the Authority is required to appoint medical practitioners and other suitably qualified persons to be medical assessors. Section 63 provides for the referral of a medical assessment by a single medical assessor for review by a panel of medical assessors. That section is in the following relevant terms:

3. [15]

   The assessment of the degree of permanent impairment of an injured person as a result of an injury caused by the motor vehicle accident assumes importance having regard to the terms of s 131 which provides as follows:

Ms McHenry’s submissions

1. [16]

   Ms McHenry maintained that there are a number of jurisdictional errors and/or errors on the face of the record in the making of the referral decision and the review panel decision. Alternatively, the proper officer and/or the review panel constructively failed to exercise his or their statutory power in making the referral decision and the review panel decision.

2. [17]

   First with regard to the referral decision, Ms McHenry contended that the proper officer wrongly fixated on the alleged absence of contemporaneous evidence relating to her back injury in circumstances where Dr Lewington not only had many documents before him but where he also took a history at the medical examination. That history included the history of injury to her back in the motor vehicle accident. Ms McHenry contended that the proper officer impermissibly treated the contemporaneous medical material, or more particularly the absence of contemporaneous complaint recorded in it, as a decisive or determinative factor. I was referred in this respect to what was said in Owen v Motor Accidents Authority (NSW) (2012) 61 MVR 245; [2012] NSWSC 650 at [50], Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 at [31] and Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [109]. Ms McHenry further contended that the proper officer sought impermissibly to rely solely on contemporaneous medical material and not upon the case she presented, including her own evidence. This contention included an allegation that the proper officer placed disproportionate weight on what was said to be the lack of contemporaneous documentation regarding Ms McHenry’s back injury, by reason of which the decision is said to be unreasonable. The proper officer is said also to have failed to take into account a relevant consideration, namely that Ms McHenry provided an oral history of back pain directly to Dr Lewington.

3. [18]

   Secondly with respect to the review panel decision, Ms McHenry contended that it erred by failing to apply itself to the real question to be decided in carrying out its function under s 58(1)(d) of the Act, because it misunderstood a significant body of evidence relevant to its determination, thereby invalidating the decision. Ms McHenry asserted that there was evidence of a contemporaneous complaint of injury to her back, consistent with her oral history given to Dr Lewington as well as to the review panel itself. The review panel was required to have regard to it but wrongly failed to do so. Here the review panel impermissibly sought to rely solely on selective contemporaneous medical material to the exclusion of Ms McHenry’s own evidence. These things are said to have amounted to a wrongful fixation upon the apparent absence of contemporaneous evidence, which the review panel treated as decisive or determinative. Ms McHenry once again emphasised the application of the cases referred to previously.

4. [19]

   Ms McHenry submitted that the only possible conclusion on the face of the reasons of the review panel is that it wrongly failed to examine or consider or engage with her emergency department records that formed part of the documentary material in the John Hunter Hospital records. These records were before the review panel as well as Dr Lewington and Dr Kenna. Ms McHenry submitted that this amounted to illegality as being unreasonable in a legal sense, in accordance with the categories described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

NRMA Insurance Ltd’s submissions

1. [20]

   With respect to the referral decision, the insurer maintained that the proper officer did not fixate upon the absence of contemporaneous documentation evidencing complaints by Ms McHenry. The insurer submitted that it was clear from the proper officer’s reasons that what concerned him was the fact that Dr Lewington’s “actual path of reasoning [was] not clear”. The insurer relied upon the well-known statement of principle in Wingfoot Australia Partners Pty Lyd v Kocak (2013) 252 CLR 480; [2013] HCA 43:

2. [21]

   The insurer specifically submitted that the history taken from Ms McHenry by Dr Lewington was not that she sustained an injury to her lower back in the motor vehicle accident but that “she complained of neck and back pain following” it. The insurer submitted that the history did not include an indication of when the back pain was first experienced after the accident. In his review of the documentation, Dr Lewington referred to records from the John Hunter Hospital but not to any emergency department records. He made no reference at all to contemporaneous documents. Dr Lewington made reference to “contemporaneous records of a soft tissue back injury as caused by the motor accident” but did not explain what those records were. The insurer maintained in these circumstances that Dr Lewington’s conclusions were unexplained and that it was open to the proper officer to find that he had not given sufficient reasons to expose his actual path of reasoning.

3. [22]

   Conversely, the proper officer did not place undue or disproportionate weight on the alleged lack of contemporaneous documentation: it was simply one matter that was taken into account by the proper officer in forming his opinion that Dr Lewington had not given proper reasons. The insurer maintained that the proper officer was entitled to do so in coming to his conclusion: see, for example, Bradley v Insurance Australia Ltd (2015) 71 MVR 496; [2015] NSWSC 950 at [55].

4. [23]

   The insurer maintained that in any event the decision of the proper officer did not turn on whether there was or was not any contemporaneous documentation or whether it was determinative of any injury suffered. His decision was that Dr Lewington had not properly explained his path of reasoning so that there was reasonable cause to suspect that the assessment was incorrect in a material respect.

5. [24]

   A different proposition was also advanced by the insurer upon the basis that even accepting the existence of error, it would be appropriate to refuse relief on discretionary grounds. The insurer relied upon what was said by Basten JA in Dominice v Allianz Australia Insurance Ltd (2017) 81 MVR 249; [2017] NSWCA 171:

6. [25]

   With respect to the review panel’s decision, the insurer noted that its role was to perform the assessment afresh: s 63(3A), Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39. The insurer re-emphasised the proposition that it is not an error simply to give some weight to the presence or absence of contemporaneous evidence. An error will only have been made in this case if the presence or absence of such material has been treated by the appeal panel as determinative on the issue of causation. Whereas an absence of contemporaneous material cannot by itself be determinative, it can nevertheless be highly probative and accordingly something which the review panel was entitled to take into account. The insurer submitted that a finding that there was no contemporaneous evidence of a causally related back injury was open to the review panel.

7. [26]

   Taking account of the particular sources of information to which the review panel had regard, the insurer made the following observations. First, Ms McHenry’s history recorded by the review panel was relevantly in these terms:

8. [27]

   The insurer contended that it was noteworthy that Ms McHenry recounted the diagnoses made at the hospital, including right shoulder, right leg, left hip and scalp but made no mention of any problems with her back.

9. [28]

   Secondly, the insurer noted that the review panel conducted a review of the documentation that was before it, but emphasised that the John Hunter Hospital records did not contain references to back pain.

10. [29]

    Thirdly, the review panel found that there were early complaints to Ms McHenry’s general practitioner of coccygeal pain, but not of back pain.

11. [30]

    Fourthly, Ms McHenry did not complain of either back pain or coccygeal pain when assessed by the review panel, but only of loin pain. The insurer submitted in this respect that it was significant that this was also the pain of which Ms McHenry complained as back pain in her application for assessment of her injuries, as indicated in the review panel’s deliberations set out earlier in these reasons.

12. [31]

    Finally, the insurer noted that documents such as the claim form, John Hunter Hospital records, a referral for physiotherapy and the request for information form make no reference to a back injury.

13. [32]

    The insurer also emphasised the review panel’s reference to the fact that the first mention of complaint to her back was on the occasion of Ms McHenry’s examination by the orthopaedic surgeon Dr John Watson for the insurer on 8 February 2013. The review panel noted that this was two years and ten months after the motor vehicle accident which, in the opinion of the appeal panel, “makes it unlikely that the accident was the cause of the complaint”.

14. [33]

    In summary, the insurer submitted that it is plain that in coming to its decision the review panel had regard to numerous factors, including Ms McHenry’s own evidence. It follows according to this submission that the issue of the existence or absence of recorded contemporaneous complaints was not by itself determinative on the issue of causation, but was on the contrary but one of a number of factors.

Authorities

1. [34]

   This case is not the first in which this issue of the significance or otherwise of contemporaneous complaint has arisen for consideration.

2. [35]

   In Owen v Motor Accidents Authority, the plaintiff was injured in a motor vehicle accident and alleged that he sustained injuries to his neck, thoracic spine, lumbar spine and left shoulder. The defendant disputed the injuries to the low back and left shoulder. A medical review panel reviewed a decision of a single medical assessor and issued a certificate determining that the injuries to the cervical and thoracic spine gave rise to a whole person impairment of less than 10%. The panel also concluded that the evidence did not support a finding that the lumbar spine injury was causally related to the accident and that it was therefore not relevant to assess the impairment rating in respect of that injury. The panel formed the same view with respect to the left shoulder injury.

3. [36]

   The plaintiff sought judicial review of the decision of the panel, asserting that there had been jurisdictional error consisting of a failure to take into account all relevant medical material. Campbell J set aside the certificate of the review panel and remitted the matter for determination according to law. His Honour found that the reasons given by the review panel also indicated that it had identified a wrong issue in that it was an error for the panel to have considered, as decisive, whether there was a contemporaneous record of complaint of symptoms. His Honour said:

4. [37]

   In Bradley v Insurance Australia Ltd, the plaintiff was involved in a motor vehicle accident on 18 April 2011 and lodged a claim dated 28 September 2011 in which he claimed that he had sustained an “injury to the neck” in the accident. The plaintiff identified Dr Kurtzer as the sole doctor who had treated him for injuries since the accident.

5. [38]

   The defendant issued a notice admitting breach of duty of care. As the plaintiff and the defendant were unable to agree on the degree of whole person impairment, a medical assessor was appointed to make an assessment. The material considered by him included a DVD of surveillance footage, the investigator’s report dated 21 October 2013 and a statement by the plaintiff dated 12 December 2013 in which he commented on what was depicted in the footage.

6. [39]

   On 21 March 2014, the assessor determined that the plaintiff’s neck, back and right knee injuries were caused by the motor vehicle accident and determined a whole person impairment of 5% (comprising 0% for the neck, 5% for the back and 0% for the right knee).

7. [40]

   The plaintiff sought and was granted a referral to a review panel pursuant to s 63 of the Act. The review panel was constituted by specialists in occupational medicine, neurology and occupational medicine. The material before the review panel included the clinical notes of Dr Kurtzer, the plaintiff’s general practitioner. These notes did not record any contemporaneous complaint of back pain, right knee or left hip pain.

8. [41]

   The review panel’s reasons included the following:

9. [42]

   In the course of refusing relief to the plaintiff, Adamson J said this:

10. [43]

    In Bugat v Fox, the plaintiff was injured in a motor vehicle accident and, after a number of assessments, was referred to a medical review panel. The issue posed for the panel was whether the degree of permanent impairment as a result of injury caused by the accident was greater than 10%. Among the injuries the plaintiff claimed were caused by the accident were injuries to her shoulders and arms. The panel concluded that these injuries were not caused by the accident. In reaching that conclusion the panel noted that it did not find that there was contemporaneous evidence to confirm causation.

11. [44]

    R S Hulme AJ set aside the certificate of the review panel and remitted the matter to be dealt with according to law. One of the pivotal questions for the panel was whether the accident caused, or materially contributed to, the plaintiff’s injuries. The presence or absence of contemporaneous evidence of injury was relevant to that question but it was not determinative, particularly where there was other evidence that supported the plaintiff’s complaints.

12. [45]

    His Honour said this:

13. [46]

    In Rodger v De Gelder, the respondent was injured in a motor vehicle accident and claimed that he suffered injuries including an injury to his thoracic spine. As in the present case, he was required under s 131 of the Act to establish a degree of permanent impairment exceeding 10% before damages for non-economic loss could be awarded.

14. [47]

    The respondent commenced proceedings in the District Court and the trial judge referred the medical dispute back to the Medical Assessment Service for further assessment pursuant to s 62 of the Act. This dispute ultimately came before a review panel which revoked the certificate of a single assessor that certified the degree of the respondent’s permanent impairment as 20% and instead certified a degree of permanent impairment as 0%.

15. [48]

    The respondent sought judicial review of the panel’s decision in this Court. The primary judge found that the panel failed to take into account a relevant consideration, being a body of evidence directly relevant to the question of whether the respondent did make a relevant contemporaneous complaint of pain in his thoracic region after the accident. The primary judge also found that the panel’s failure to engage with the reasoning of the trial judge, who had concluded that causation was established, amounted to a failure to take into account a relevant consideration.

16. [49]

    On appeal it was held that the panel’s reasons disclosed that it did not engage with the evidence of the respondent concerning the onset of thoracic pain at the time of and continuing after the accident. The panel also misread a doctor’s report that did record a history of pain in the thoracic region at the time of the accident. The panel failed to respond to a substantial argument based on evidence relied upon by the respondent as to the causation of his injury by the accident.

Consideration

1. [50]

   In my view, Ms McHenry’s case with respect to the decision of the proper officer can, in non-technical language, be considered to have been overtaken by events. That appears to be the burden of what was said by Basten JA in Dominice v Allianz Insurance Australia Ltd at [7], quoted earlier in these reasons.

2. [51]

   I am also of the view that even if the proper officer’s decision were shown to be infected with error, it would not have the effect of invalidating the decision of the review panel, on the assumption that the decision of the review panel was not otherwise shown to be affected by error. This much is clear from what was later said by Basten JA in Dominice:

3. [52]

   In my view, having regard to the fact that the review panel has already considered and upheld the challenge to Dr Lewington’s certificate, and replaced that certificate with its own certificate, whether or not error can be identified, there is a strong case for refusing any form of relief with respect to the proper officer’s decision on discretionary grounds.

4. [53]

   As Adamson J observed at [46] in Bradley, “[t]he function of the Review Panel is fundamental to the way in which its reasons are to be read”. This was made plain in Kocak, where it was stated:

5. [54]

   The review panel in this case was charged with the task of conducting a new assessment of all of the matters with which the medical assessment was concerned. Relevantly for present purposes, that included an assessment of the degree of permanent impairment as a result of each of the injuries referred that were found to have been caused by the motor accident. The issue of causation was therefore not collateral or incidental to the review panel’s task but central to it.

6. [55]

   It goes without saying that the performance of that task is not to take place in a vacuum or in a state of suspended reality. The very notions of medical experience and medical expertise anticipate the application of a common sense approach to the assessment in question. As several authorities somewhat uncontroversially accept, the existence of contemporaneous complaints by injured parties claiming compensation for injuries is something to which medical experts have for long been inclined to resort in the assessment of such things as the existence of an injury, the persistence of that injury, the level of impairment flowing from that injury and the cause of the injury. Medical practitioners are undoubtedly familiar with the fact that not all injuries manifest themselves immediately at the time when the injury is actually sustained, so that the absence of a contemporaneous complaint is not necessarily conclusive. By the same token, contemporaneous complaint of injury standing alone does not necessarily say anything about the extent of any impairment claimed to have resulted from the injury or about the period during which any such impairment caused by the injury might be expected to persist.

7. [56]

   Ms McHenry complains that the review panel unreasonably arrived at its assessment of the causal relationship between her persisting complaints and the motor vehicle accident solely or at least disproportionately by reference to the matters of which she complained when admitted to the John Hunter Hospital or within a relatively short time thereafter. In the words of Campbell J, Ms McHenry alleges that the review panel wrongly treated that matter as decisive, or adopting the description in Ms McHenry’s submissions, wrongly treated the matter as determinative. I am, however, unable to accept that contention.

8. [57]

   The review panel’s examination of Ms McHenry’s lower back was recorded in the following terms:

9. [58]

   Clearly, that summary of the panel’s examination appears on the face of the record and may be taken to have formed part of the process of reasoning by which it arrived at its conclusions. In addition, although Ms McHenry had had X-rays and MRIs of several parts of her body, including her cervical spine, all of which are listed in the review panel’s certificate, no similar investigations of her back were presented to the review panel. These listed investigations presumably formed part of the review panel’s reasoning process. Notwithstanding these matters, the review panel did assess Ms McHenry as having a 5% whole person impairment as the result of the condition of her lumbosacral spine.

10. [59]

    As referred to above, the review panel specifically indicated, on the question of causation of the back injury, that there was “an absence of complaint in the months following the accident”. I take that comment to mean that the review panel was not fixated upon contemporaneity, in the sense of a complaint restricted to the time immediately upon presentation to the hospital, but were prepared to consider the significance of the emergence of signs or symptoms for or during a period of some months thereafter. I note in passing that that may be contrasted with the position in Owen, in which the review panel identified a wrong issue, namely, whether treatment providers “in the first month or so following the motor accident” made a record of complaints of relevant symptoms. Ms McHenry also specifically told the review panel that her loin pain was the back pain of which she complained in her application for assessment of her injuries. The review panel was entitled to take account of that statement. The review panel somewhat conservatively expressed the opinion that the delay in first complaint of two years and ten months “makes it unlikely that the accident was the cause of the complaint.” I do not read those words as suggesting that the content of contemporaneous records was dispositive of the assessment. The review panel specifically drew attention to the fact that even within that period, Dr Newing’s referral for physiotherapy and the request for Medical Information Form dated 24 January 2011, which she completed, make reference only to neck pain and coccyx pain but make no reference to a back injury or to back pain.

11. [60]

    Ms McHenry emphasised that the injury details provided in the 15 April 2010 document include a reference to “strain to back”. However, Dr Newing’s earlier document dated 8 April 2010, again merely refers to “painful coccyx difficulty sitting.” The same document includes the words “may need physiotherapy for neck.”

12. [61]

    On 12 April 2010, Dr Cino Bendinelli, the Deputy Director of Trauma at the John Hunter Hospital, reported to Dr Newing following review of Ms McHenry at the outpatients clinic that day, saying her “most significant complaint now is ongoing neck stiffness.” There is no reference of any sort to Ms McHenry’s back or lumbosacral spine.

13. [62]

    It is not in my opinion clear, as Ms McHenry asserts, that the review panel relied upon the absence of contemporaneously recorded complaints as decisive, or as a more significant factor than all others, or as a factor to which undue weight was given, in assessing the existence of a causal connection between her back injury and the motor vehicle accident. The documentary history extends far beyond the time of her admission to hospital: Ms McHenry did not raise any problems with her back for nearly three years following the accident. The absence of an original contemporaneous complaint as well as the lateness of complaint are matters of fact which in combination the review panel is perfectly entitled to take into consideration. It would be unrealistic to exclude such matters from the review panel’s assessment. Both the absence of complaint and the lateness of complaint would also appear in this case to have been persuasive, something that appears to me to be unexceptionable from the review panel’s point of view, having regard to the medical experience and expertise that its members are required and entitled to bring to their task. To say that a matter is persuasive, however, is not to say that it was decisive. The review panel also took a history from Ms McHenry which failed to include any reference to a back complaint and it examined her as requested. I do not consider that it can be said that the panel have shown, far less clearly shown, that they have regarded what they perceived as the absence of contemporaneous evidence of complaint of a back injury as determinative on the issue of causation of that injury.

14. [63]

    A further matter should be noted. In her further amended summons, Ms McHenry says, at paragraph 14(c) that “the panel wrongly fixated on the alleged absence of contemporaneous evidence relating to [Ms McHenry’s] back injury (reasons pages 11 and 12) in circumstances where medical assessor Lewington and the panel itself had taken an oral history from [her] at her respective medical examinations. That history included the history of her injury to her back in the accident” [my emphasis]. The emphasised words require some examination.

15. [64]

    First, Ms McHenry did not relate a history of an injury to her back to the review panel. Indeed, Ms McHenry prays in aid her failure to do so as support for a claim that she was denied procedural fairness on the basis that the review panel should have raised the matter of her back for her comment and elaboration, if any, and that its failure to do so amounts to relevant error. (This is referred to as a separate matter in detail below at [67]).

16. [65]

    Secondly, the history taken from Ms McHenry by Dr Lewington is not unambiguous. Under Dr Lewington’s heading “History of the Motor Accident”, no reference to any injuries is to be seen. Under Dr Lewington’s heading “History of Symptoms and Treatment following the Motor Accident”, the only reference to Ms McHenry’s back is to be found in the words, “She complained of neck and back pain following the motor accident…”. A fair reading of those words on one view is not that Ms McHenry was making a complaint of back pain to Dr Lewington but that she was recalling what she said she did sometime time in the past. It is one of the insurer’s contentions in these proceedings with respect to Ms McHenry’s challenge to the proper officer’s decision that it is not apparent what Dr Lewington was basing this statement on and that his “path of reasoning” was correspondingly unclear.

17. [66]

    The further amended summons makes no complaint about the treatment by either the proper officer or the review panel with respect to any injuries other than the back injury. I am uncertain as to why the way in which the review panel, for example, dealt with these other issues was not pressed by Ms McHenry as demonstrating error. On one view, Ms McHenry’s allegations of an illegitimate reliance on contemporaneous records of complaint may have had more force in relation to those injuries, especially the knee complaints, which I note were found by Dr Lewington to have been caused by the accident. However, as I have not been asked to consider those injuries in the present context I shall not do so.

18. [67]

    Ms McHenry contends further that she was denied procedural fairness in as much as the review panel did not in effect prompt her to say more, or on one view something, about her back pain and its history. I do not understand the law to be that a review panel has any such obligation, particularly having regard to the fact that its task is neither arbitral or adjudicative. The obligation of the review panel can in my view be no greater than to provide Ms McHenry with the opportunity to relate her history or offer other relevant information about her injuries, how they occurred and whether they continue to afflict her, among other things. There is no suggestion in this case that the review panel restricted or limited Ms McHenry in what she could say which, if it had occurred, would have been a relevant breach of the obligation to treat her fairly. If the true position is as Ms McHenry asserts, a review panel would be placed in the invidious and arguably intolerable position of being criticised for failing to ask some unspecified and unarticulated question which a disaffected claimant later maintained he or she should have been asked.

19. [68]

    In so saying, I am aware of what was said in Frost v Kourouche by Leeming JA:

20. [69]

    During the course of his helpful submissions, Mr Robinson SC who appeared for Ms McHenry with Mr Hart of counsel, put the proposition this way:

21. [70]

    In the present case, Ms McHenry has not suggested in terms what the questions were that the review panel should have asked her. On one view, taken to its logical conclusion, Ms McHenry's argument would have required the review panel to tell her that it was doubtful that her back injury was the result of what happened to her in the accident and invite her to comment upon it. However, having regard to the very clear recitations of the principle in cases of high authority such as Kioa v West (1985) 159 CLR 550; [1985] HCA 81 and Frost v Kourouche, among several others, I do not think, in the particular circumstances of the present case, that the review panel was required to go so far. For example, as was said by Brennan J in Kioa v West at 628,

22. [71]

    To similar effect, the court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 579; [1994] FCA 1074 at 591 said this:

23. [72]

    In a different context, Ashley JA said this in North v Homolka [2014] VSC 478:

24. [73]

    I have also had regard to the decision of Davies J in Smith v Insurance Australia Ltd [2018] NSWSC 1606 at [41].

25. [74]

    Ms McHenry could reasonably have anticipated that the cause and duration of her back condition were matters that were central to the review panel’s deliberations. The fact that it made findings about that could not have been unexpected. In my opinion, Ms McHenry was not denied procedural fairness.

26. [75]

    I should note for completeness, considering these statements of principle to which I have referred, that I accept that the precise delineation of a review panel’s obligations is a task not without difficulty and something upon which minds might reasonably differ. If my view is wrong, and Ms McHenry has been denied procedural fairness in the way that she maintains, she would be entitled to an order revoking the review panel's certificate and an order that the matter be remitted to the Authority to be dealt with by a differently constituted review panel according to law.

27. [76]

    Having regard to the view I have formed concerning Ms McHenry’s complaints, it becomes unnecessary to consider the discretionary defences raised by the insurer. One of these, however, can be easily dealt with. The insurer contends that even if there were errors of law, Ms McHenry would still need to establish that the errors have a bearing on the outcome of the matter under review. The insurer submitted that this Court would decline to grant relief as a matter of discretion if that relief would be futile: Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; [2008] HCA 32 at [88]–[92]; Brimelow v Sharpe [2012] NSWCA 345 at [33].

28. [77]

    The insurer contended that the only injury that the review panel determined was caused by the accident was Ms McHenry’s cervical spine, which was found to give rise to a 0% whole person impairment. It argued that even if the 5% for the back injury, (which, as noted, is the only injury put in issue in the further amended summons) was found to be causally related to the accident, the total whole person impairment would only be 5%, and therefore still not above the s 131 threshold of “greater than 10% whole person impairment”.

29. [78]

    However, in the event that a differently constituted review panel were appointed and reviewed the matter according to law, or as Ms McHenry’s submissions colourfully contend, “without the obsessions demonstrated in the vitiated decisions as to contemporaneous records”, the final determination may well be different. The Court cannot predict what will happen or how the matter may be assessed. See, for example, Owen at [52].

30. [79]

    I agree with Ms McHenry’s position. It would be a mistake to attempt to form a view or to try to predict what a differently constituted review panel might make of the injuries, including how they were caused and whether or not, and if so to what extent, they have caused permanent impairment. The determination or assessment of these matters would, in the event of consideration and assessment by a differently constituted body, be matters for fresh determination. It is not in the circumstances possible to say that the grant of relief would be a futility.

31. [80]

    The review panel were of the view that Ms McHenry’s injury to her cervical spine was caused by the accident so that it is unnecessary to deal with that injury in this context.

Orders

1. [81]

   In the circumstances I make the following order:

   1. (1)

      Order that the plaintiff’s further amended summons be dismissed with costs.