Rodger v De Gelder

1. [1]

   MACFARLAN JA: I agree with Gleeson JA.

2. [2]

   GLEESON JA: On 24 August 2005, the first respondent, Mr Adam De Gelder, was injured in a motor vehicle accident, when a vehicle driven by the appellant, Mr James Rodger, collided with the rear of Mr De Gelder’s stationary vehicle. There was a dispute about the degree of permanent impairment suffered by Mr De Gelder. Mr De Gelder claimed that he suffered various injuries from the collision including cervical spine, thoracic spine and lumbar spine injuries. The provisions of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) require Mr De Gelder to establish that he suffered a degree of permanent impairment greater than 10% before damages may be awarded for non-economic loss: s 131. A dispute as to the degree of permanent impairment must be assessed by a medical assessor under Pt 3.4: s 132(1).

3. [3]

   On 4 February 2014 the third respondents (the Panel), who constituted a review panel of medical assessors exercising power under s 63 of the MAC Act, revoked a certificate of a single medical assessor and issued a new certificate determining that the degree of permanent impairment of Mr De Gelder was 0%. Mr De Gelder brought proceedings by way of judicial review in the Supreme Court, challenging the decision made by the Panel on review. He sought orders that the certificate issued by the Panel be quashed.

4. [4]

   On 3 October 2014 Hamill J quashed the Panel’s certificate and remitted the matter to the second respondent, the Motor Accidents Authority of New South Wales (the Authority) to be determined according to law. His Honour found that the Panel erred because it had failed to take into account relevant considerations, and alternatively, that the Panel’s reasons were inadequate: De Gelder v Rodger (No 2) [2014] NSWSC 1355.

5. [5]

   Mr Rodger appeals from those orders. Both the Authority and the Panel have filed a submitting appearance.

6. [6]

   On 17 December 2014, Hamill J stayed the remittal order to the Authority made on 3 October 2014 pending the final determination of Mr Rodger’s appeal to this Court: De Gelder v Rodger (No 3) [2014] NSWSC 1851.

7. [7]

   For the reasons that follow, which differ somewhat from those of the primary judge, I have concluded that the appeal should be dismissed.

8. [8]

   An understanding of the way in which this dispute comes to this Court is assisted by an outline of the function of a review panel exercising powers under the MAC Act, s 63, the Panel’s reasons in the present case, and the grounds of the application for judicial review relied upon by Mr De Gelder before the primary judge.

The MAC Act

1. [9]

   The MAC Act provides for a scheme of compulsory third party insurance and payment of compensation relating to injuries sustained as a consequence of motor vehicle accidents. A description of the operation of the MAC Act is to be found in Rodger v De Gelder [2011] NSWCA 97; 80 NSWLR 594 at [7] - [15] (Beazley JA as her Honour then was).

2. [10]

   Relevant to the present case is Pt 3.4 of the MAC Act which deals with the resolution of medical disputes, which include disputes about “medical assessment matters”. Such disputes may be referred to the Authority for assessment: ss 57, 58 and 60. One type of medical assessment matter is a disagreement between a claimant and an insurer about whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident, is greater than 10%: s 58(1)(d). The assessor to whom a referral is made is required to give a certificate as to the matters referred: s 61(1).

3. [11]

   With respect to the role of review panels, it is only necessary to note three matters.

4. [12]

   First, the MAC Act provides for a review of a medical assessment by a single medical assessor on application of a party to a medical dispute, such application to be made to the proper officer of the Authority: s 63(1). The ground of the application must be that the assessment was “incorrect in a material respect”: s 63(2). The officer is to refer the application to a panel of at least three medical assessors, but only if satisfied that there is “reasonable cause to suspect that the medical assessment was incorrect in a material respect”: s 63(3).

5. [13]

   Secondly, the review panel is to undertake a new assessment of all matters with which the medical assessment is concerned: s 63(3A). The review panel is not limited to the alleged incorrect aspect of the original assessment. The review panel may confirm the certificate of assessment of the medical assessor, or revoke that certificate and issue a new certificate as to the matters referred for assessment: s 63(4).

6. [14]

   Thirdly, s 63(6) provides that s 61 “applies” to any “new certificate” issued by the review panel under s 63. One of the aspects of s 61 that is rendered applicable is s 61(2), which provides that a certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. Another applicable aspect of s 61 is s 61(9), which together with s 63(6), requires that the certificate set out the reasons for any finding by the review panel as to any matters certified.

The Guidelines

1. [15]

   The Authority may issue medical guidelines with respect to the assessment of the degree of permanent impairment of an injured person: s 44(1)(c). Relevantly, on 1 October 2007 guidelines under this provision were issued: the “Guidelines for the Assessment of Permanent Impairment of a Person Injured as a Result of a Motor Vehicle Accident” (the Permanent Impairment Guidelines). Clause 1.2 states that the Permanent Impairment Guidelines are based on the American Medical Association publication “Guides to the Evaluation of Permanent Impairment” (4th ed 1995) (AMA 4 Guides), however the guidelines contain some very significant departures from that document. The Permanent Impairment Guidelines state that they are definitive with regard to the matters they address, but where they are silent on an issue, the AMA 4 Guides should be followed. The Permanent Impairment Guidelines are rendered applicable to the assessment of the degree of permanent impairment: s 133(2).

2. [16]

   Under the heading “Causation of injury”, the Permanent Impairment Guidelines state:

3. [17]

   It is well established that the degree of permanent impairment as a result of the injury caused by the motor accident (s 58(1)(d); s 131) is unequivocally for the medical assessor, or review panel, as the case may be, including the element of causation: Motor Accidents Authority of NSW v Mills [2010] NSWCA 82; 78 NSWLR 125 at [79] (Giles JA; Tobias JA and Handley AJA agreeing); Ackling v QBE Insurance (Australia) Ltd [2009] NSWCA 881; 75 NSWLR 482 at [77] – [79].

4. [18]

   Before the primary judge little attention was given by the parties, at least in their written submissions, to the status of the Permanent Impairment Guidelines for the purpose of Mr De Gelder’s application for judicial review. Mr Rodger contended that the Panel did apply each section of cl 1.8 of the Permanent Impairment Guidelines “as required by law”. The reference to “each section of cl 1.8” may be taken to be a reference to the medical determination and the non-medical determination with respect to causation. Counsel for Mr Rodger accepted that the non-medical determination referred to in cl 1.8(b) is essentially a non-medical factual question (tcpt CA at 7, lines 23 – 25).

5. [19]

   Counsel for Mr Rodger submitted that s 65(1) of the MAC Act had the effect of requiring a review panel to consider a guideline published under s 44, including the Permanent Impairment Guidelines (tcpt CA at 5, line 48 – 6, line 2). Section 65(1) provides that medical assessments are “subject to relevant provisions of MAA Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure of assessment” (see also s 44(1)(d)). The Permanent Impairment Guidelines state that they are issued under s 44(1)(c): see [15] above. In Trazivuk v Motor Accidents Authority (NSW) [2010] NSWCA 287; 57 MVR 9 at [32] Giles JA expressed doubt whether the earlier version of the Permanent Impairment Guidelines issued in July 2005 answered that description which appears referable to s 44(1)(d), although his Honour observed that cl 1.40 itself may do so. Clause 1.40 was in the same terms as the present cl 1.43 of the Permanent Impairment Guidelines.

6. [20]

   It may be accepted that cl 1.43 reflects an obligation to accord procedural fairness, the content of which extends to confronting the applicant with inconsistencies between the information obtained through medical records and/or observations, and providing him or her with an opportunity to respond, which bound the members of the Panel by reason of s 65(1) of the MAC Act: Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [32] (Leeming JA; Beazley P and Basten JA agreeing). It is unnecessary to go further in the absence of the parties directing argument to this question.

7. [21]

   Counsel for Mr Rodger also drew attention to cl 1.3 of the Permanent Impairment Guidelines which states that those guidelines which are directive as to how the assessment should be performed are indicated by the text being in bold. Relevantly, in the present case, cl 4.8 in Chapter 4 (‘Spinal Impairment’) provides in bold that all impairments in relation to the spine should be calculated in terms of whole person impairment and assessed in accordance with Chapter 4 and Chapter 1 of the Permanent Impairment Guidelines and Chapter 3.3 of the AMA 4 Guides.

Background

1. [22]

   The injuries which Mr De Gelder claimed he suffered as a result of the motor accident included soft tissue injuries to his cervical spine, thoracic spine, lumbar spine and multiple fractured vertebrae. Since 2007 various medical assessors and review panels have assessed Mr De Gelder’s whole person impairment including, whether the thoracic spine compression fractures observed in the region of T5 and T6 were caused by the collision. Other possible causes were a work injury accident sustained by Mr De Gelder in late November 2005 and that he was suffering significant osteoporosis.

2. [23]

   The history of those assessments and earlier litigation by way of judicial review, is recounted by the primary judge at [6] - [19] of his reasons. It is only necessary to note that various assessors and review panels have reached different conclusions as to whether Mr De Gelder’s thoracic spine injury was caused by the collision in August 2005.

3. [24]

   In October 2011 Mr De Gelder commenced proceedings in the District Court against Mr Rodger. The insurer of Mr Rodger’s vehicle was Insurance Australia Ltd trading as NRMA Insurance. Mr Rodger, by his insurer, admitted breach of duty of care but put in issue causation of the thoracic spine fractures and other claimed injuries. A hearing before Levy DCJ commenced on 21 May 2012 and the proceedings continued until 17 August 2012.

4. [25]

   On 15 October 2012 Judge Levy made interim findings, including findings as to causation of the fractures to Mr De Gelder’s thoracic spine which were consistent with the earlier medical assessments (that the injury was caused by the motor accident) but inconsistent with the medical assessment current at the time. His Honour referred the medical dispute back to the Motor Accidents Medical Assessment Service (MAS) for further assessment: s 62(1)(b).

5. [26]

   On 18 December 2012 a medical assessor (Dr Harrington) certified Mr De Gelder’s impairment at 20% as a result of cervical spine and thoracic spine injuries caused by the motor accident. On 7 December 2012 Mr Rodger applied to the proper officer of the Authority for a review. That application was granted.

6. [27]

   On 21 May 2013 a review panel certified Mr De Gelder’s impairment at 25%. Mr Rodger sought judicial review of that decision in the Supreme Court. Subsequently on 4 October 2013, Mr De Gelder consented to the orders sought. As a consequence the certificate issued by the review panel was quashed and the matter remitted to the MAS to be determined according to law.

7. [28]

   On 4 February 2014 the Panel, being a differently constituted review panel, certified Mr De Gelder’s impairment as a result of injury caused by the motor accident as 0%.

8. [29]

   On 30 June 2014, Rothman J ordered that the proceedings in the District Court be stayed pending further order or determination of the judicial review proceedings before Hamill J: De Gelder v Rodger [2014] NSWSC 872.

The Panel’s reasons

1. [30]

   The Panel consisting of three medical assessors issued a certificate with accompanying reasons on 4 February 2014. The Panel’s reasons (page 2) record that it had been provided with and considered documents including all the documents supporting the application for review and the reply to that application, as well as the original assessment certificate issued by Assessor Harrington, the letters of referral from the MAS to Assessor Harrington, all the documents which were provided to Assessor Harrington, the proper officer’s statement of reasons for accepting the application and certain additional information from the solicitors for the parties.

2. [31]

   The reasons also record that the “Panel considered all of the available evidence and decided that a re-examination of [Mr De Gelder] was necessary in order to reach a decision because the issue of causation of the thoracic spine compression fractures was to be decided and a more detailed history was required from Mr De Gelder” (page 4).

3. [32]

   An examination by the three assessors of Mr De Gelder occurred on 4 February 2014. The Panel’s reasons record the history obtained from Mr De Gelder, including:

4. [33]

   The Panel’s reasons (page 6) noted that X-rays after the motor vehicle accident revealed longstanding osteoporosis. The Panel referred to various investigations and noted that plain X-rays of Mr De Gelder’s thoracic spine on 25 September 2006 were consistent with osteoporosis. Anterior wedging of T5 and T6 was also noted. The Panel commented that the wedging did not appear to be recent in appearance and that no fracture line was visible and there was no sign of healing of an acute fracture.

5. [34]

   The Panel’s reasons record the results of its clinical examination including:

6. [35]

   Under the heading “Panel Deliberations”, the Panel stated:

7. [36]

   Under the heading “Panel Decision”, the Panel stated that the motor accident was a cause of the following claimed injuries,

8. [37]

   The Panel found that the lumbar spine injury had resolved and gave rise to no assessable impairment. The Panel considered that the cervical spine injury gave rise to permanent impairment, but found that the degree of whole person permanent impairment caused by the motor accident was 0%. Accordingly, the Panel concluded that Mr De Gelder’s total whole person impairment was not greater than 10%.

The grounds of the application for judicial review before the primary judge

1. [38]

   Mr De Gelder brought proceedings by way of judicial review of the Panel’s decision in the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). Six grounds were relied on, asserting jurisdictional errors and/or errors of law on the face of the record.

2. [39]

   The first ground was that the Panel treated the absence of recorded contemporaneous complaints of injury in medical records as being decisive on the issue of causation of Mr De Gelder’s thoracic spine injuries and other injuries. This was said to have involved jurisdictional error because the Panel identified the wrong issue and asked itself the wrong question, and was also said to involve error of law on the face of the record. Reference was made to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [82]; Craig v The State of South Australia [1995] HCA 58; 184 CLR 163.

3. [40]

   The second ground asserted that the Panel misdirected itself as to the law governing the issue of causation because it took into account Mr De Gelder’s inability to explain why neither Dr Goodman nor Mr Angelopoulos had reported his complaints of thoracic spine pain. It was said that the Panel’s misdirection appeared on the face of the record.

4. [41]

   The third ground was related to the second. It asserted that the Panel relied on an irrelevant consideration, namely the inability of Mr De Gelder to explain why neither Dr Goodman nor Mr Angelopoulos had recorded his complaints of thoracic spine pain in their respective clinical notes. It was said that in this way the Panel had committed a jurisdictional error.

5. [42]

   The fourth ground asserted that the Panel had failed to take into account material which was relevant in determining the connection between Mr De Gelder’s thoracic spine injuries and the motor vehicle accident. This material was identified as five pieces of evidence and also the reasons of Judge Levy on the issue of causation. The five items of evidence comprised:

   1. (1)

      The contemporaneous account given by Mr De Gelder in an accident report completed the day after the accident, in which he referred to his vehicle having been struck from behind whilst stationary in traffic at a speed of approximately 90 km/hr, resulting in him experiencing pains in his neck, shoulder and the middle and lower back.

   2. (2)

      The letter dated 23 May 2012 from the chiropractor, Mr Angelopoulos, recording Mr De Gelder’s presenting problem as being gradually worsening thoracic, lower back and left-side leg pain that immediately followed a 90 km/hr high speed motor vehicle accident on 24 August 2005.

   3. (3)

      Mr De Gelder’s evidence before Judge Levy of experiencing severe and agonising pain in his thoracic spine, and other places, from the time of the accident onwards, unlike anything he had experienced beforehand; and his evidence that he felt pain in his thoracic spine when he arrived at his sister’s residence shortly after the accident.

6. [43]

   It was said that the Panel’s failure to take these matters into account deprived Mr De Gelder of the opportunity to have a successful outcome on the issue of causation. Reference was made to D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [141] - [144]; Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; 141 FCR 346 at [64]; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 (Peko-Wallsend) at 40.

7. [44]

   It should be observed at this point that the written submissions of Mr Rodger before the primary judge, did not take issue with Mr De Gelder’s characterisation of this fourth ground as a “relevant consideration” ground of judicial review. Rather, Mr Rodger’s response was to deny that the Panel failed to take into account relevant considerations. In written submissions before the primary judge, Mr Rodger contended that the Panel had plainly read and considered the decision of Judge Levy and the evidence of Mr De Gelder, his sister and brother-in-law and all the material and medical reports available to his Honour; that the letter from Mr Angelopoulos was also before the Panel and the assessors read it and took it into account; and that the accident report did little more than support the Panel’s finding of soft tissue injuries in the lumbar and cervical spine.

8. [45]

   The fifth ground asserted that Mr De Gelder was not afforded procedural fairness in a number of ways. This was said to have constituted jurisdictional error.

9. [46]

   The sixth ground asserted, in the alternative to the fourth ground, that the Panel’s reasons on the issue of causation were “grossly inadequate”. Reference was made to Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 and Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577; 63 MVR 1.

The primary judge’s reasons

1. [47]

   After outlining the background, the statutory scheme, the principles of law governing judicial review and the standard of reasons required of administrative decision-makers, the primary judge turned to the issue of causation before the Panel.

2. [48]

   His Honour observed that the controversy over causation arose because Mr De Gelder did not immediately consult a doctor about the motor accident, and that it was several months later, after Mr De Gelder had been lifting (or more precisely attempting to push) an air-conditioning unit at work, that he consulted a doctor and a chiropractor: at [41].

3. [49]

   His Honour identified the causation issue as being whether the injury to the thoracic spine arose as a result of the car accident or was independent of it and, in particular, whether it was occasioned during the later incident at work: at [42].

4. [50]

   At [43], his Honour set out cls 1.7 - 1.9 of the Permanent Impairment Guidelines, the terms of which have been set out above at [16]. His Honour noted that Mr Rodger did not concede that the Panel was called upon in the present case to make assessments as to both medical questions and legal questions. His Honour found this position difficult to understand or accept given the distinction drawn in cl 1.8 between a (a) medical determination and (b) a non-medical determination and the reference to a “non-medical informed judgment”: at [44]. (It is to be noted that the Panel itself specifically adverted to this distinction and gave separate answers to these questions when addressing the thoracic spine injury: see the Panel’s reasons set out at [35] above.)

5. [51]

   Earlier (at [31]) his Honour had noted the function of a review panel carrying out a medical assessment identified by the High Court (in relation to an analogous scheme under Victorian legislation) in Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480; 88 ALJR 52 at [47]:

6. [52]

   His Honour further noted (at [32]) that this Court in Frost v Kourouche at [2] (Basten JA) and [40] (Leeming JA) considered that the statutory scheme under the Victorian legislation to be substantially similar to the MAC Act.

7. [53]

   After setting out the six grounds of review, his Honour addressed each ground. He accepted that grounds 3, 4 and 6 had been made out and rejected the complaints raised by grounds 1, 2 and 5.

8. [54]

   As to ground 3, the primary judge found that Mr De Gelder’s inability to explain the notes of Dr Goodman and Mr Angelopoulos was not a relevant consideration: at [60]. At [64] - [65], reference was made to authorities which emphasise that apparent inconsistencies between an injured person’s oral testimony and accounts given to various health professionals may and often should be approached with caution: Mason v Demasi [2009] NSWCA 227 at [2] (Basten JA); Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; 61 MVR 245 at [52] (Campbell J).

9. [55]

   Notwithstanding this error by the Panel, the primary judge concluded (at [67]) that it would not be appropriate to quash the Panel’s decision on this ground alone, since the Panel’s certificate contained a single reference to this matter.

10. [56]

    As to ground 4, the primary judge observed (at [69]) that the Panel’s certificate showed that it had placed significant emphasis on the fact that it was unable to find contemporaneous records supporting the proposition that Mr De Gelder had complained of acute pain in the area of the fractures to his thoracic spine. His Honour accepted Mr De Gelder’s submission that the absence of such evidence was a relevant consideration although, consistent with Mason v Demasi, it had to be treated with some circumspection.

11. [57]

    The primary judge then addressed each of the five items of evidence relied upon by Mr De Gelder.

12. [58]

    As to the first item (the accident investigation report), his Honour described this as the most contemporaneous document available to the Panel (at [71]), and considered that the fact that a complaint of pain to the middle back was made the day after the collision was a relevant consideration: at [74].

13. [59]

    As to the second item (the letter from the chiropractor, Mr Angelopoulos dated 23 March 2012), his Honour noted with reference to the car accident on 24 August 2005, that Mr Angelopoulos recorded the following history given by Mr De Gelder (at [75]):

14. [60]

    As to the third item, his Honour set out (at [80]) various passages of the evidence of Mr De Gelder given before Judge Levy in the District Court proceedings, that he felt pain in his thoracic spine following the car accident. The evidence of Mr De Gelder included that he:

    1. (1)

       had complained immediately after the collision, when arriving at his sister’s house (Ms Young), that he “was in severe pain” and “it radiated from my right arm down through my neck all the way down my body all the way down to my left leg” and “down through my thoracic and then it – it come [sic] from my lower back across to my left hip and then all the way down into my leg”;

    2. (2)

       had never had pain like that before in any of those parts of his body, and that when he sat down “it all went into spasm and I could almost feel all the ladders climbing up my back”;

    3. (3)

       could not sleep the night of the car accident and on the following morning he was feeling very sore. The worst pain which he was experiencing was in his thoracic and lower back, where it was “constant”, and that he was in “agony” no matter what he did: at [80].

15. [61]

    As to the fourth and fifth items, his Honour set out (at [82] - [83]), various passages of the evidence of Ms Young and Mr Young in the District Court proceedings. These included that Mr De Gelder complained of pain in his back immediately after the motor vehicle collision; that in the week following the motor accident Mr De Gelder came and stayed with them and told them of his back pain; that Ms Young recommended that he see a doctor but he responded that he could not take time off work; and that this continued over the months following the accident until he was laid off work.

16. [62]

    Mr Young also gave evidence that Mr De Gelder was complaining of back and neck problems and had said that he had been hit pretty solidly from behind. Mr Young described Mr De Gelder as being in a lot of pain and could not settle during the remainder of that evening. He said that Mr De Gelder found it very difficult to sit down and relax.

17. [63]

    The primary judge concluded that each of the five items of evidence had not been taken into account by the Panel: at [74] (accident investigation report); at [78] (Mr Angelopoulos’ letter); at [80] and [81] (evidence in the District Court of Mr De Gelder and Ms Young and Mr Young).

18. [64]

    The primary judge considered that the error of law was not the failure of the Panel to mention or take into account any particular item of evidence, but rather the failure of the Panel to take into account a relevant consideration, being the body of evidence that was directly relevant to the question of whether Mr De Gelder did in fact make a relevant and contemporaneous complaint: at [85].

19. [65]

    In addition, his Honour considered that the failure of the Panel to make any reference to the decision of Judge Levy constituted a failure to take into account a relevant consideration. His Honour observed that having heard the evidence over many days, Judge Levy had provided a “reasoned and cogent explanation” for his conclusion that causation was established: at [86].

20. [66]

    At [92] the primary judge distinguished the observations of the High Court in Wingfoot Australia Pty Ltd v Kocak at [47] (set out above at [51]) on the ground that here Mr De Gelder’s complaint was directed to the Panel’s consideration of the non-medical informed judgment – whether the motor accident caused the injury.

21. [67]

    His Honour concluded that the Panel’s failure to engage with the reasoning of Judge Levy and the failure to refer to or consider the considerable body of evidence running counter to the proposition that Mr De Gelder made no relevant contemporaneous complaint constituted a failure to take into account a relevant consideration: at [93].

22. [68]

    Although strictly unnecessary to decide, his Honour expressed the view that the Panel’s reasons were inadequate. His Honour considered that it was impossible from the reasons to understand the pathway of reasoning which led the Panel to its conclusion: at [98].

Issues on appeal

1. [69]

   In his notice of appeal, Mr Rodger contends that the primary judge erred in two respects.

2. [70]

   First it is said that his Honour erred in concluding that the Panel had failed: (a) to take into account a number of relevant considerations, being the body of evidence referred to above (relevant to the question of whether Mr De Gelder did in fact make a relevant and contemporaneous complaint following the collision); and (b) to engage with the reasoning of Judge Levy on causation, and in this regard had erred in distinguishing the present case from the circumstances in Wingfoot Australia Pty Ltd v Kocak.

3. [71]

   Secondly, it is said that his Honour erred in concluding that the Panel had failed to provide adequate reasons.

Grounds of judicial review

1. [72]

   Section 69 of the Supreme Court Act permits review by the Court, in its supervisory jurisdiction, in respect of the grant of relief in the nature of the writ of certiorari. Although the writs no longer issue, relief may be granted setting aside a decision either on the ground of jurisdictional error, or on the ground of error of law appearing on the face of the record: s 69(3).

2. [73]

   The phrase “the face of the record” is defined to include “the reasons expressed by the Court or tribunal for its ultimate determination”: s 69(4) of the Supreme Court Act. Here the “record” included the reasons of the Panel since s 61(9) of the MAC Act, which is made applicable to the Panel by s 63(6) of the MAC Act, required the Panel to set out the reasons for any finding by the Panel as to any matter certified in the certificate.

3. [74]

   Counsel for Mr Rodger submitted that the term “tribunal” in s 69(4) included administrative decision-makers, such as a review panel, exercising power under the MAC Act, s 63. Counsel for Mr De Gelder did not put any argument to the contrary. In Meeuwissen v Boden [2010] NSWCA 253; 78 NSWLR 143 at [14], Basten JA (Beazley JA and Sackville AJA agreeing) accepted, in the absence of argument to the contrary, that the proper officer of the Authority, exercising power under the MAC Act, s 63, was relevantly a “tribunal” for the purposes of s 69 of the Supreme Court Act. A review panel is in a position relatively analogous to that of the proper officer of the Authority, exercising power under the same provision. It is appropriate here, in the absence of argument to the contrary, to proceed upon the basis that the Panel is a “tribunal” for the purposes of s 69 of the Supreme Court Act.

First asserted error

1. [75]

   It is convenient first to address Mr Rodger’s challenge to the primary judge’s acceptance of the fourth ground of judicial review based on the asserted obligation of the Panel to consider the five items of evidence. As the primary judge noted, the asserted obligation of the Panel to consider the reasoning of Judge Levy raises different considerations.

Mr Rodger’s Submissions

1. [76]

   The contentions of Mr Rodger may be summarised as follows. First it is said that the material the subject of the five items of evidence was before the Panel and was read and considered by the Panel. Reliance was placed upon the express statement in the Panel’s reasons that all Panel members had confirmed that they had received and considered particular identified documentation. It is common ground that this documentation included the five items of evidence (and the reasoning of Judge Levy).

2. [77]

   It was said that the weighing and balancing of the evidence was a matter for the Panel alone in the exercise of its statutory duty to form and to give its own opinion on the medical question referred to it: Wingfoot Australia Pty Ltd v Kocak at [47].

3. [78]

   Mr Rodger placed greatest emphasis on the passage in the Panel’s reasons that if Mr De Gelder suffered thoracic fractures as a result of the motor vehicle accident, he would have experienced significant localised pain which then resolved over 6 - 12 weeks. It was said that the transcript of the proceedings before Judge Levy established that he experienced some pain and discomfort following the accident, and that the first complaints of sharp severe pain occurred only some 3 months after the accident immediately following an incident at work while Mr De Gelder was moving an air-conditioning unit.

4. [79]

   Accordingly, it was said that the Panel was not required to have regard to general evidence of pain in Mr De Gelder’s mid back which did not rise to the standard which the Panel had identified as typically caused by vertebral fractures (tcpt CA at 21, lines 25 - 35).

5. [80]

   Mr Rodger’s argument, in effect, was that the Panel did consider the relevant evidence, and in doing so considered the relevant considerations to an assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident.

Mr De Gelder Submissions

1. [81]

   Mr De Gelder sought to uphold the primary judge’s finding that the Panel had failed to take into account the body of evidence which was directly relevant to the question of whether he had made a relevant and contemporaneous complaint of pain in his mid thoracic spine.

2. [82]

   In oral submissions, counsel for Mr De Gelder contended that the Panel operated on a misunderstanding of the evidence. It was said that the Panel incorrectly described the evidentiary position from which it might be inferred that it had overlooked the evidence relied upon by Mr De Gelder in support of causation of his injury (tcpt CA at 42, lines 11 - 16).

3. [83]

   In addition to the Panel’s asserted failure to consider the five items of evidence, counsel for Mr De Gelder contended that the Panel’s reasons disclose a misreading of the report of Dr Goodman. It was argued that, contrary to the Panel’s reasons, Dr Goodman’s report does mention a complaint by Mr De Gelder of back pain (as opposed to lower back or neck) and shoulder pain immediately following the car accident (tcpt CA at 31, lines 23 - 33).

Did the Panel fail to take into account a relevant consideration?

1. [84]

   It is well established that reference to a “relevant consideration” in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Peko-Wallsend at 39; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 (Cervantes) at [15] (Basten JA; McColl and Macfarlan JJA agreeing).

2. [85]

   As Basten JA explained in Cervantes at [15], this ground required the respondent, Mr De Gelder, to identify the legal obligation on which he relied to identify what were mandatory factors to be taken into account for the purposes of the Panel’s decision. The identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act rather than from the particular facts of the case that the decision-maker is called on to consider: Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [195] (Gummow and Hayne JJ).

3. [86]

   It seems that this did not occur before the primary judge. This remained the position in this Court. Although Mr Rodger contended that the Permanent Impairment Guidelines were delegated legislation and Mr De Gelder did not submit to the contrary, neither party identified any mandatory considerations the Panel was bound to take into account. Both parties proceeded on appeal on the same basis as they did before the primary judge – that relevant material was the same as a relevant consideration in the sense described in Peko-Wallsend. This approach, which his Honour adopted, was erroneous. The error, as Basten JA said in Cervantes at [15], is that “to describe evidence as ‘relevant’ to the case of one party is not to identify a ‘relevant consideration’ for judicial review purposes”.

4. [87]

   As will be seen below, if the matter is approached on this basis, which although erroneous was common ground before the primary judge and in this Court, then in my view no error has been demonstrated in the primary judge’s findings that the five items of evidence were not taken into account by the Panel. My reasons for this conclusion appear below when addressing the related question of whether the Panel failed to respond to a substantial argument advanced by Mr De Gelder based on those items of evidence: see below at [101], [105] and [106] - [107].

Obligation to respond to a substantial argument

1. [88]

   The contention relied upon by Mr De Gelder in oral argument, was that the Panel incorrectly described the evidentiary position and thereby impliedly overlooked the evidence relied upon by Mr De Gelder in support of causation of his injury. No complaint was made by counsel for Mr Rodger that it was not open to Mr De Gelder to raise this point on appeal either because it had not been raised below, or had not been raised in a notice of contention. It is appropriate for this Court to deal with the real issues which the parties were content to debate on appeal. This reflected the substance of Mr De Gelder’s complaint before the primary judge, albeit not its legal characterisation.

2. [89]

   In Cervantes at [19] - [22], Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account. The context in that case was the obligation of a claims assessor exercising power under the MAC Act, s 94. His Honour said:

3. [90]

   These observations have equal relevance to the obligation of a review panel to consider the evidentiary material placed before the panel when exercising power under the MAC Act, s 63. As already mentioned, s 63(3A) expressly requires a review panel to undertake a new assessment of all the matters with which the medical assessment is concerned. Here the medical assessment matter which a review panel was dealing with is whether the degree of permanent impairment of the injured person caused by the motor accident is greater than 10%: s 58(1)(d) MAC Act. It is, therefore, mandatory that the review panel address the medical assessment matter and carry out the statutory function.

4. [91]

   As cl 1.8 of the Permanent Impairment Guidelines makes clear, the causation issue involves both a medical determination and a non-medical determination. Here, what is in issue is the non-medical determination by the Panel that Mr De Gelder’s thoracic spine injury was not caused by the motor accident.

5. [92]

   The primary judge found in effect that there were five significant deficiencies in that determination, all revealed by comparing the Panel’s reasons with the evidence of Mr De Gelder having made complaint of the onset of thoracic pain at the time or and continuing after the motor accident. As the primary judge also found, taken together the five items relate to a matter of importance to the Panel’s determination. This is not to suggest that the Panel had an obligation to consider every piece of evidence presented. But the Panel was required to respond to a substantial argument that Mr De Gelder did make a relevant and contemporaneous complaint of pain in the region of his thoracic spine.

6. [93]

   Where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In such a case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). It is well accepted that with respect to the MAC Act, procedural fairness applies to a review panel exercising powers under s 63: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [8] (Allsop P). The particular content of this requirement will depend upon the facts and circumstances of the particular case: Trazivuk v Motor Accidents Authority (NSW) at [28]; Frost v Kourouche at [2] and [41].

7. [94]

   A failure to accord procedural fairness is a recognised form of jurisdictional error: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [60]. It is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; 179 ALR 513 at [10].

8. [95]

   It has also been said where the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, the decision-maker has failed properly to exercise their jurisdiction: Nufarm Australia Ltd v Dow AgroSciences Australia Ltd (No 2) [2011] FCA 757; 282 ALR 24 at [102]-[103]. Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration v Yusuf at [41] (Gaudron J).

9. [96]

   The question is whether this is what the Panel did here. As will be seen immediately below, it will not be necessary to decide whether a failure to respond to a substantial argument amounts to a failure to accord procedural fairness, or a constructive failure to exercise jurisdiction, or both.

Did the Panel fail to respond to a substantial argument?

1. [97]

   The Panel’s reasons with respect to causation of the thoracic spine injury are set out above at [35]. As to the medical determination referred to in cl 1.8(a) of the Permanent Impairment Guidelines, the Panel accepted that the rear end collision could have caused compression fractures in the thoracic spine, especially for an individual with pre-existing osteoporosis, even though any such injury was considered extremely rare.

2. [98]

   As to the non-medical determination referred to in cl 1.8(b) of the Permanent Impairment Guidelines, the Panel considered that the only evidence supporting a thoracic spine injury at the time of the motor accident was the “history” given by Mr De Gelder. This may be taken to be a reference to the history which he gave to the Panel on 4 February 2014. Counsel for Mr Rodger did not suggest otherwise (tcpt CA at 14, lines 30 - 40).

3. [99]

   In finding that the history given by Mr De Gelder was not supported by the clinical notes of either his treating chiropractor or Dr Goodman, the Panel reasoned that acute spinal compression fractures typically caused significant localised pain which then resolved over 6 to 12 weeks, and that this would have been reported to his treating practitioners and evident in their examination findings. The Panel considered that this history was not obtained from Mr De Gelder at the time of the Panel’s re-examination, and there was no written documentation of acute pain relating to T5 and T6 in the clinical notes of Dr Goodman and Mr Angelopoulos.

4. [100]

   There are two main difficulties with the Panel’s reasoning. The first is that when considering the history given by Mr De Gelder, the Panel limited itself to the history given at the re-examination on 4 February 2014. No reference is made to the accident report immediately following the collision, the report of pain in the area of the thoracic spine in Dr Goodman’s and the chiropractor’s reports, or Mr De Gelder’s evidence before the District Court. A related difficulty is that the absence of any reference to the evidence of Ms Young or Mr Young before the District Court. The second difficulty is that the Panel’s reasons disclose a misreading of the report of Dr Goodman.

5. [101]

   As to the accident report, counsel for Mr Rodger submitted that it was of little significance in the Panel’s deliberations because it did not contain a report of significant localised pain in the thoracic region. The error in this submission is that the significance of individual items of evidence is not to be viewed in isolation from the other evidence, in particular, evidence of a contemporaneous complaint of pain in the thoracic region. The accident report itself described “sore neck, shoulder and sore middle and lower back”. Having regard to the purpose of this report, a more detailed description of the injury would not be expected. This report needed to be considered together with the evidence of what Mr De Gelder subsequently reported to Dr Goodman and Mr Angelopoulos, and the evidence given by him and Ms Young and Mr Young in the District Court proceedings.

6. [102]

   As to whether Mr De Gelder reported thoracic pain to Dr Goodman and the chiropractor, the Panel noted that Mr De Gelder was adamant that he had mentioned pain between the shoulder blades to both of them. However, the Panel took the view that this had not occurred because no such report of pain had been recorded by either of them. This involves a misreading of their reports.

7. [103]

   First, Dr Goodman recorded that Mr De Gelder had “back, neck and shoulder pain for 3 weeks but still had pain and stiffness after sleeping for more than 5 hours” following the motor accident. Although the Panel had earlier referred to this part of Dr Goodman’s report when addressing the cervical injury, the Panel stated incorrectly that Dr Goodman’s report made no mention of either mid back or thoracic spine symptoms or signs when dealing with the thoracic spine injury.

8. [104]

   It is evident that the Panel misread Dr Goodman’s report. Although Dr Goodman’s report is relatively brief, it distinguishes between the “lower back”, the “back” and the “neck”. It records pain in all of these places, together with shoulder pain. Dr Goodman recorded a report of the onset of thoracic pain at the time of and continuing after the accident. This report was consistent with Mr De Gelder’s history given to the Panel, that he had mentioned pain between the shoulder blades to Dr Goodman.

9. [105]

   Secondly, the chiropractor’s report dated 23 March 2012 also recorded a history given by Mr De Gelder that he was experiencing pain in his lower thoracic spine (which the chiropractor identified as between T8 and T12), and that such pain had started immediately after his car accident and was gradually getting worse. The Panel in its reasons focused only on the written clinical notes of Mr Angelopoulos, the chiropractor. The Panel did not refer to the chiropractor’s report dated 23 March 2012. (The chiropractor’s original notes, on which the report was based, appear not to have been made available.) The Panel’s reasons do not address the history given by Mr De Gelder as recorded in the chiropractor’s report of the onset of thoracic pain at the time of and continuing after the motor accident.

10. [106]

    As to the evidence given by Mr De Gelder before the District Court, after describing the force involved in the impact of the rear end collision as “severe” and that the physical movement of his body felt like he was being driven through the back of the seat, Mr De Gelder gave the evidence referred to above at [60] concerning the onset and level of thoracic pain experienced immediately following the accident.

11. [107]

    The Panel’s reasons do not address Mr De Gelder’s evidence including his description of the pain as “severe”, or its location, including “down through my thoracic”, or that he was experiencing constant pain in his thoracic spine and was “in agony” the following day. Nor did the reasons address the evidence given by Ms Young and Mr Young corroborating Mr De Gelder’s complaint of thoracic pain immediately following and continuing after the accident.

12. [108]

    The Panel’s reasons disclose that it did not engage with the evidence of a complaint of the onset of thoracic pain at the time of and continuing after the motor accident. This was a matter of importance which related to its determination of a non-medical factual question. It is not to the point that the function of the Panel is to form and give its own opinion on the medical dispute referred to it by applying its own medical experience and its own medical expertise: Wingfoot Australia Pty Ltd v Kocak at [47]. Nor is it to the point that s 61(9), which is made applicable by s 63(6), only obliged the Panel to set out in its certificate the reasons for any finding of any matter certified in the certificate.

13. [109]

    Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel’s decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review: Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ).

14. [110]

    For the above reasons, which differ somewhat from those of the primary judge, I agree that the Panel’s certificate is vitiated by jurisdictional error. The challenge by Mr Rodger to the primary judge’s decision setting aside the Panel’s certificate must fail. Ground 1 has not been made out.

15. [111]

    One further matter should be mentioned. Although not articulated in this way, the criticism of the Panel’s misreading of Dr Goodman’s report is a matter that appears on the face of the Panel’s reasons. This is evident in the Panel’s finding that Dr Goodman had not recorded Mr De Gelder’s complaint of pain between the shoulder blades, when the portion of Dr Goodman’s report excerpted in the Panel’s reasons addressing of the cervical spine injury does record pain in the relevant areas. Accordingly, the Panel’s reasons also disclose an error of law on the face of the record.

Reasons of Judge Levy

1. [112]

   The primary judge correctly recognised that the asserted failure by the Panel to consider the reasons of Judge Levy raised somewhat different considerations to the body of evidence referred to above.

2. [113]

   Counsel for Mr Rodger contended that although perhaps relevant, there was no “duty” (that is, obligation) on the Panel to consider Judge Levy’s reasons because it was not a mandatory consideration (tcpt CA at 28, lines 1 - 7). Having regard to the course of oral argument, this aspect of the matter may be dealt with briefly.

3. [114]

   First, as previously mentioned, medical assessments are procedurally subject to the Medical Assessment Guidelines made under s 44(1)(d). Clause 11.1 of the Medical Assessment Guidelines provides that review panels are not bound by the rules of evidence and may inquire into any such issue in such a manner as they think fit.

4. [115]

   Secondly, the reasons of Judge Levy provide the context in which the matter had been referred again for assessment. The context was that a significant body of evidence had been identified by Judge Levy concerning a contemporaneous complaint of pain in the thoracic region at the time of and continuing after the motor accident. It may be expected that a medical assessor (or a review panel) could and would take note of such reasons where the power to refer again under s 62(1) has been exercised by the Court: Motor Accidents Authority v Mills at [80].

5. [116]

   Thirdly, this does not mean that a referring court’s reasons are a mandatory consideration. Counsel for Mr De Gelder ultimately did not press such a submission. Counsel accepted that beyond alerting the Panel to the primary material, the reasons of Judge Levy probably did not take the matter any further than the body of evidence already considered above (tcpt CA at 37, lines 45 - 50). That concession was properly made. The Panel was not required to respond to somebody else’s opinion as to the cause of his injury. The Panel was required, relevantly, to make an informed judgment on a non-medical question in carrying out its statutory function under s 58(1)(d). This is not to say that the reasons of Judge Levy were not material relevantly placed before the Panel, as a referring court under s 62(1).

Second asserted error

1. [117]

   Having regard to the conclusion in relation to ground 1, it is unnecessary to address ground 2 of the appeal which challenged his Honour’s alternative reason for setting aside the Panel’s certificate on the grounds of inadequate reasons.

Conclusion

1. [118]

   For the above reasons, the appeal should be dismissed with costs.

2. [119]

   LEEMING JA: I agree with Gleeson JA.