Supreme Court New South Wales

• Medium Neutral Citation: Jaksic v Insurance Australia Ltd, trading as NRMA [2013] NSWSC 1141
• Hearing dates: 3 April 2013
• Decision date: 20 August 2013
• Before: Rothman J

Decision

(1)An order in the nature of certiorari calling up and quashing the certificate and medical assessment dated 6 December 2011 issued by the third defendants in relation to the claim by the plaintiff under the Motor Accidents Compensation Act 1999;

(2)The defendants, or any of them, their officers, servants or agents are restrained from acting on or taking any further step in reliance upon the aforesaid certificate and medical assessment of 6 December 2011;

(3)An order in the nature of mandamus requiring the second defendant, the Motor Accident Authority of New South Wales, through its proper officer, to refer to a review panel of medical assessors the application by Insurance Australia Ltd, trading as NRMA, the first defendant herein, to be carried out by a review panel consisting of medical assessors other than those that constituted the review panel that issued the certificate and medical assessment of 6 December 2011, referred to above, to deal with the said application in accordance with law;

(4)The first defendant shall pay the plaintiff's costs of and incidental to the proceedings, as agreed or assessed.

• Catchwords: ADMINSTRATIVE LAW - Motor Accidents Compensation Act 1999 - effect of Guidelines - Review Panel procedure - requirement to give claimant capacity to respond to inconsistent observations
• Legislation Cited: Motor Accidents Compensation Act 1999; Motor Accidents Authority Permanent Impairment Guidelines 2007
• Cases Cited: Browne v Dunn (1893) 6 R 67 (HL); Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Kanda v Government of Malaya [1962] AC 322 (PC); Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475; Public Service Association of South Australia v Federated Clerks' Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132; R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546; Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13 at [19]; (1989) 84 ALR 208; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; Russell v Duke of Norfolk [1949] 1 All ER 109; Sullivan v Department of Transport (1978) 20 ALR 323
• Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment, 4th ed (1995)
• Category: Principal judgment
• Parties: Matija Jaksic (Plaintiff); Insurance Australia Ltd, trading as NRMA (First Defendant); Motor Accidents Authority of New South Wales (Second Defendant); Margaret Gibson, Tai Tak Wan and Phillipa Harvey-Sutton, in their capacity as medical assessors review panel of the Motor Accidents Authority (Third Defendant)
• Representation: Counsel: M A Robinson SC (Plaintiff); K P Rewell SC (First Defendant); Submitting appearance (Second Defendant/Third Defendant); Solicitors: NSW Compensation Lawyers (Plaintiff); Moray & Agnew (First Defendant); Crown Solicitor's Office (Second Defendant/Third Defendant)
• File Number(s): 2012/122401
• Publication restriction: None

Judgment

1 By summons filed 18 April 2012, Matija Jaksic seeks an order in the nature of certiorari quashing (or alternatively a declaration setting aside or declaring invalid) the certificate and medical assessment dated 6 December 2011 of a medical Review Panel (hereinafter, "the Panel") of the Motor Accidents Authority (hereinafter, "MAA") purportedly made under s 61 and s 63 of the Motor Accidents Compensation Act 1999 (hereinafter, "the Act").

2 The summons also seeks ancillary orders, being orders in the nature of prohibition, injunction, mandamus and the like, seeking, respectively, that the MAA, or its officers, not act on or take a further step in reliance on the decision of 6 December 2011 that is sought to be impugned and further remitting the medical assessment to a differently constituted Review Panel for determination in accordance with law.

Background

3 The procedural background is generally uncontentious. The plaintiff commenced proceedings in 2010 against the nominal defendant. Those proceedings were commenced in the District Court of New South Wales and sought personal injury damages arising from a motor vehicle accident on 5 September 2008.

4 On 5 September 2008, according to the plaintiff's account of the circumstances, a motor vehicle driver snatched the plaintiff's handbag and proceeded at speed. It was a "bag-snatch".

5 The bag-snatching incident occurred in the following manner. The driver snatched the handbag and accelerated the motor vehicle, while the strap of the handbag was still attached to the plaintiff. It is said that the effect of that action caused a severe wrenching injury to the plaintiff's neck and shoulder and caused her to fall and strike the ground where she sustained further injury.

6 As a consequence of the foregoing, each of the parties accepts that the Act applies and the plaintiff made an application to the MAA for medical assessment of the injuries arising out of that motor vehicle accident. That assessment would then be used in the District Court proceedings.

7 The MAA medical assessor performed the assessment and issued a certificate under the Act: see s 61 and Part 3.4 of the Act.

8 Given that the proceedings were taken against the nominal defendant, arrangements were required to be made to have a licensed insurer deal with the matter. Presumably these arrangements were made under s 38 of the Act and an appropriate and relevant insurance industry deed. No issue turns on this aspect.

9 As a consequence of the arrangements under the Act (particularly s 38), Insurance Australia Limited trading as NRMA (hereinafter, "the NRMA") acts as if it were the insurer of the nominated (or unidentified) vehicle and is the contradictor and appropriate party in the District Court proceedings, in the proceedings before the MAA and before this Court.

10 The NRMA applied for and obtained a review of the medical assessment, originally issued on 16 May 2011. That review was purportedly pursuant to s 63 of the Act.

11 On 6 December 2011, the Panel issued reasons for its determination and a certificate that had the effect of revoking the earlier certificate of 16 May 2011. The 16 May 2011 certificate (hereinafter, "the original assessment") was conducted by assessor David Macauley and certified (when combined with the assessment of Dr Brian J Williams of 30 April 2010) a whole person permanent impairment greater than 10 per cent.

12 It is a little more complicated, but not relevantly so. The first assessment was in fact issued by assessor Dr Brian J Williams and related to injuries to the plaintiff's nose, being a fracture, nasal obstruction and chronic rhinitis. On 16 May 2011, Dr Macauley issued a further certificate relating to the plaintiff's left shoulder (impingement syndrome), cervical spine (musculoligamentous strain), lower back (strain), right knee (strain) and left knee (patellofemoral pain).

13 On 12 July 2011, Dr Isabella Watkins issued a combined certificate (and reasons therefor) that combined the effect of the assessment by Dr Williams and by Dr Macauley. Dr Watkins assessed the combined effect of the injury as having a permanent impairment, in total, "greater than 10 per cent".

14 Essentially the reason for the certificate issued by Dr Watkins is that Dr Williams' assessment for injury to the nose was 2 per cent and Dr Macauley's assessment in relation to the other enumerated injuries above was 9 per cent, and the combined effect was certified at 11 per cent. Dr Watkins, in accordance with the Act and guidelines, utilised the Combined Values Chart at page 322 of the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition.

15 Pursuant to the provisions of s 63(2A), the Panel reviewed the assessment of Dr Macauley and issued a certificate in relation to the injuries otherwise certified by Dr Macauley and a new combined certificate, the effect of which was also to revoke the combined certificate issued by Dr Watkins.

16 The Panel issued a certificate as to the injuries originally assessed by Dr Macauley to the effect that there was, from those injuries, a 2 per cent permanent impairment, whereas, previously, the assessment had been for 9 per cent. The significance of that assessment to a permanent impairment of greater or less than 10 per cent is obvious.

17 The issue of controversy is the manner in which the Panel conducted its examination and whether, as a consequence of the conduct of that examination and the alleged failure to bring to the plaintiff's attention the inconsistencies they considered arose from her examination, and her other conduct, in an appropriate or complete manner, there has been error that is capable of correction on judicial review.

The Panel's Decision

18 As earlier stated, the Panel issued reasons for decision on 6 December 2011. Those reasons recited the composition of the Panel, the documentation and other material available to the Panel and the assessment under review.

19 The Panel considered that the review was to have been conducted "afresh". No issue arises in these proceedings as to that approach.

20 The Panel noted that the principal issue as to medical assessment was the "evaluation of permanent impairment related to the left shoulder, including if contralateral shoulder deduction was appropriate".

21 Notwithstanding the statement that the assessment would occur de novo, the Panel looked at the assessment of Dr Macauley and the measurements relating to the restriction in movement of the left shoulder, and mild restrictions in the movement of the right shoulder. The Panel then discussed a number of reports.

22 At page 6 of 17 of the Panel decision, the Panel recited that Dr Tai-Tak Wan and Dr Harvey Sutton examined the plaintiff on 11 November 2011. They described her as 60 years old and right-hand dominant. At page 7 of 17 the Panel said:

"During the examination, Ms Jaksic was cooperative, and was able to communicate effectively through the interpreter. However, significant pain behaviour was observed during the physical examination. The Panel members also observed that there were greater Ranges of Movement (ROM) of the arms and shoulders when not in formal examination. The Panel members therefore raised the issues of discrepancy in the ROM between formal examination and non-formal examination, and the discrepancy in physical findings between what were observed and what had been reported in the other medical reports. After emphasising the importance of giving her best effort to demonstrate the maximum ranges of movement in her spine and the limbs, the Panel members repeated the measurement of ROM in the spine and limbs. Unfortunately, significant inconsistency was still found, in particular, the movement of the shoulders."

23 The foregoing raises two interesting issues, only one of which is relevant. The first interesting, but irrelevant, issue, is how any of the members of the Panel were able to assert that Ms Jaksic "was able to communicate effectively through the interpreter", unless the members of the Panel were fluent in Ms Jaksic's language.

24 More relevantly from the aspect of the matters raised in these proceedings is the omission from the foregoing of a reference to a response by, or an invitation for a response to, Ms Jaksic to the proposition that there were significant inconsistencies. Unless it can be said that the opportunity to be observed and re-examined was an opportunity to deal with an inconsistency, no such opportunity seems to have been given.

25 At page 8 of 17, the Panel set out the measurements and restrictions in the ROM measured using an inclinometer and a goniometer and remeasured the ROM after the advice to Ms Jaksic of the discrepancy between the findings in formal and informal observations. There are differences in the measurements obtained. Given the matters raised by the plaintiff in these proceedings, it is necessary to recite the paragraph (without the measurements) relating to the process by which the measurements were taken again. The Panel said:

"After advising Ms Jaksic of the discrepancy between the findings in formal examination and what were observed outside formal examination and the discrepancy between what were observed and what were reported in other medical reports, ROM were measured again ..."

26 Later (page 9 of 17) the reasons for decision records:

"The Panel members advised Ms Jaksic that we observed greater ROM when not in formal examination. We also advised her of the discrepancy in the findings between what we found and those reported in other medical reports. Ms Jaksic responded that as she had pain in both shoulders she did not want to move her arms more than should could to avoid causing more pain. After asking her to give her best effort, we repeated the measurement of ROM of both shoulders as follows ..."

The Panel then sets the measurements for both right and left shoulder.

27 The Panel later remarked:

"Although Ms Jaksic complained of intermittent pain radiating from the arms to the hands, we did not observe any complaint of shooting pain when we examined the neck and shoulders. However, when one of the Panel members tapped the bicep muscles, she complained of pain radiating to the 4th and 5th fingers, which was suggestive of non-organic symptom. When a similar test was repeated when her attention was distracted, there was no complaint of radiation of pain or numbness to the hands. When the Panel members presented to her the discrepancy in the clinical signs, Ms Jaksic responded that the pain radiating to the fingers was intermittent. On further clarification the nature of the symptomatology in the arms was not that of non-verifiable radicular symptomatology."

28 Under the heading "Deliberations", the Panel, in its reasons, dealt with each of the injuries. Unfortunately, it is necessary to recite significant extracts from that part of the decision. The Panel decision was in the following terms:

"Right knee - strain

After reviewing all the enclosed documentation, the history obtained from the claimant and physical examinations, the Panel concluded there is no contemporaneous evidence that there is a right knee injury sustained in the subject MVA.

The Panel also noted that in a letter dated 3 November 2011, the claimant's solicitor, '... formally withdraw the allegation of injury to the right knee ...', and stated, 'Accordingly, there is now no need for the review panel to make a determination with respect to the right knee.' However, the secretary to the Review Panel, Caroline Cargill replied that, 'I refer to clause 16.21.1 of the Medical Assessment Guidelines which state the Review Panel is to, "consider afresh all aspects of the assessment under review." Therefore the Panel assessment is to be conducted de novo'. The Panel decided that there is no evidence of right knee injury sustained in the subject MVA.

Left shoulder - soft tissue injury

After considering all the evidence available, the Panel agreed that there is evidence of soft tissue injury to the left shoulder sustained in the subject MVA. The Panel noted that the causation of the left shoulder injury was not in dispute although the insurer did not agree that no contralateral limb deduction was made. The Panel noted that all of the medical experts, including those of Assessor Macauley, Assessor Menogue, Dr Harvey, Dr Burns, Dr Mastroianni and Dr Stephenson, agree that there is a left shoulder injury sustained in the subject MVA, although there are significant differences regarding the measurement of ROM, interpretation and whether contralateral limb deduction should be included.

Cervical spine - soft tissue injury

Considering all the evidence available, the Panel agreed that there is a soft tissue injury to the cervical spine sustained in the subject MVA. The panel noted that the assessment of the cervical spine is not in dispute.

Lower back - strain

Given the circumstances of the accident, history and physical examination, the Panel agreed that there is evidence that Ms Jaksic sustained strain injury to the lower back in the subject MVA. The Panel noted that the causation of the lower back injury is not in dispute.

Left knee - soft tissue injury

Considering the circumstances of the accident, the pictogram in the ambulance record, the history given by the claimant and the investigation results, the Panel agreed that there is evidence of soft tissue injury to the left knee in the subject MVA. The Panel agreed that the click noted at the patella region on both knee is most likely a mal-tracking of the patella due to a constitutional or other degenerative process which is causally unrelated to the subject MVA as it is present bilaterally. The Panel could not confirm any crepitus or radiological evidence of significant arthritis in either knee."

29 Following the section of the decision dealing with deliberation, the relevant aspects of which are recited above, the Panel dealt with what it described, by way of heading, as the "Panel Decision". Again, unfortunately, it is necessary to recite relatively significant extracts of that part of the decision. Those extracts are as follows:

"The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows:

Left shoulder - soft tissue injury

There is significant inconsistency between the measured ROM during formal examination and what were observed outside formal examination, such as dressing and undressing. There was also significant inconsistency between our measured physical findings and those reported in the other medical reports (please see above).

Although the Panel members advised the claimant of the discrepancies and asked her to try her best, she still exhibited exaggerated pain behaviour and the re-measurement of ROM still confirmed significant inconsistency.

Nonetheless, given the circumstances of the accident, history and the radiological findings, the Panel agreed that there is permanent impairment associated with the left shoulder injury.

According to Section 2.4, p. 9, Motor Accident Authority's Permanent Impairment Guidelines 1st October 2007 Edition (MAAPIG), '... If there is inconsistency in range of motion, then it should not be used as a valid parameter of impairment evaluation... If range of motion measurements at examination cannot be used as a valid parameter of impairment evaluation, the assessor should then use discretion in consider what way to give other available evidence to determine if an impairment is present.'

Section 2.9, p. 10, MAAPIG, also states, 'If the condition is not in the MAA guides, it may be assessed using another like condition. For example, rotator cuff injury may be assessed by impairment of shoulder range of movement or other disorder of the upper extremity (p. 58-65, AMA4 Guides).'

The Panel agreed that the most appropriate way of assessment is applying the principle of analogy and using Table 18 and 19, p. 58-59, AMA4 (assessing bone and joint impairment using joint crepitation and motion). The Panel agreed that the left should injury should [be] classified as mild severity, which corresponds to 10% joint impairment, according to Table 19, p. 59, AMA4. Since the X-ray of left shoulder of 17 March 2010 showed mild degenerative changes in the acromio-clavicular (AC) joint and abnormal gleno-humeral joint, the Panel decided that the most appropriate way is using the AC joint impairment listed in Table 18, p. 58, AMA4, i.e. maximum impairment of 25% UEI or 15% WPI.

...

Cervical spine - musculoligamentous strain

There is tenderness but no muscle spasm or guarding. Considering the ranges of movement outside the formal examination, the Panel agrees that there is only mild restriction in active movement of the cervical spine with no dysmetria.

Although the claimant complained of intermittent pain radiating to the hands and all fingers, especially the 4th and 5th fingers, on further clarification, the Panel found that the complaint does not even satisfy the criteria of 'non verifiable radicular complaints' as defined in p. 24, MAAPIG, as not only were the symptoms were [sic] inconsistent, but the distribution was also inconsistent.

...

Using Table 4.1, p. 22, MAAPIG, the cervical impairment is classified as Diagnosis-Related Estimate (DRE) Category I. Using Table 73, p. 110, it correspondents to 0% WPI.

...

The total permanent impairment related to the subject MVA for the injuries assessed by the Panel is 2% WPI.

...

Permanent impairment ratings take symptoms into account, however the percentage whole person permanent impairment is not a direct measure of disability. A finding of zero percent whole person impairment indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however, relevant Guides rate the associated impairment at 0% WPI."

Permanent Impairment Guidelines

30 Fundamentally, the issue raised in this application for judicial review is whether the plaintiff was given an adequate, or any, opportunity to respond to the perceived inconsistencies by the Panel. To some extent, albeit minor, there is an issue as to whether it was necessary to give the plaintiff such an opportunity.

31 Before dealing with the requirements imposed upon the Panel in that regard, it is necessary to deal with the Act to determine whether the scheme of the legislation impacts upon any such requirement.

32 Under the Act, the rights to damages for non-economic loss were significantly modified from that which previously applied under the common law. The provisions of s 131 of the Act prohibit the awarding of damages for non-economic loss, unless there be a degree of permanent impairment of the injured person greater than 10 per cent. Further, s 132 of the Act requires an assessment of the degree of permanent impairment before a court is able to award damages for non-economic loss. As a consequence, the determination of the permanent impairment threshold (i.e. whether the permanent impairment is greater or less than 10 per cent) is to be resolved by the MAA and, in particular by an assessment by a medical assessor under Part 3.4 of the Act. The medical assessor's certificate is conclusive evidence in any court proceedings of that which it certifies.

33 The only exception to the requirement that a court accept the certificate of assessment of permanent impairment of an injured person as conclusive on the issue involves circumstances where the assessment was determined in a process that denied appropriate procedural fairness: see s 61(4) of the Act. Even in those circumstances, the Court would be required to come to the view that the denial of procedural fairness has caused or would cause substantial injustice to the affected party. Even in circumstances to which s 61(4) of the Act refers, a court is required, if the certificate of a medical assessor has been rejected, to refer the medical assessment again for assessment and obtain a further certificate in that respect: see s 61(5) of the Act and s 62(1) of the Act as to a referral for a further assessment by a court.

34 Assessors appointed under the Act are medical practitioners, usually with a recognised specialty in the area in which the medical assessor is assessing. The Act, in transferring medical assessment from the courts on expert evidence to assessors, seeks to resolve disputes as to medical issues (causation and extent) informally and thereby encourage the early resolution of the claim. Section 6 of the Act requires an interpretation of the Act in accordance with the objects. The Act also requires that a dispute about whether the 10 per cent threshold has been reached is to be resolved by the medical assessment process under Part 3.4 of the Act and, as already stated, the certificate in relation to that medical assessment is conclusive evidence in court proceedings.

35 It is necessary to understand, in the context of these proceedings, that Guidelines are promulgated under s 44 of the Act, which allows guidelines to be promulgated with respect to the assessment of the degree of permanent impairment: see s 44(1)(c) of the Act. Those Guidelines may apply by referring to other publications and the terms of the Guidelines purport so to do. The process of medical assessment is intended to be non-curial and informal.

36 The Guidelines that have issued and relevantly apply are the MAA Permanent Impairment Guidelines. Clauses 1.42 and 1.43 thereof are located under a heading "Consistency" and are in the following terms:

"1.42 ... If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the assessor should modify the impairment estimate accordingly, describing the modification and outlining the reasons in the impairment evaluation report.

1.43 Where there are inconsistencies between the assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies should be brought to the claimant's attention, e.g. inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical exanimation. The claimant will then have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.

37 The last phase of the above recitation of the Guideline makes clear that the purpose of dealing with inconsistencies in the manner prescribed is "to ensure accuracy and procedural fairness".

38 Procedural fairness depends, fundamentally, on the circumstances of the "hearing" and its statutory context: R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552-553. As stated by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 504:

"What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances."

39 To similar effect is the oft-cited passage in the judgment of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 in the following terms:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

40 In the words of Deane J, then a member of a Full Court of the Federal Court of Australia, in Sullivan v Department of Transport (1978) 20 ALR 323:

"The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."

The foregoing statement of principle, while relating to the refusal of an application for adjournment, is also relevant, generally, to the right of a party to have a reasonable opportunity to prepare and to present the case that it desires. It has been cited with approval by the High Court: see, inter alia, Re Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13 at [19]; (1989) 84 ALR 208.

41 Notwithstanding the foregoing, it is the practical effect of the alleged denial of procedural fairness with which the Courts are concerned and procedural fairness is not determined in the abstract: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

42 The issues relating to the content of the rules of procedural fairness during the course of a medical assessment under the Act are complex. They will be dealt with more fully later in these reasons for judgment.

Evidence

43 During the course of the proceedings before the Court, an issue arose as to the necessity for, desirability of and admissibility of evidence as to the procedure adopted by the medical assessors that constituted the Panel. Some of the material that one or other of the parties initially proposed to adduce was not. This was achieved by a degree of consensus between the parties.

44 Other evidence was adduced and received provisionally, subject to submissions as to its admissibility. The evidence went to the procedure adopted by the Panel and not to the matters taken into account by the Panel or the conclusions reached by it.

45 Essentially, the issue raised by or on behalf of Ms Jaksic is a denial of procedural fairness. Ms Jaksic relies on the terms of the Guidelines, already recited, and the general understanding of procedural fairness. As a consequence, the basis for judicial review is an excess of jurisdiction and facts going to the establishment of that excess of jurisdiction are admissible.

46 The only "evidentiary" contest, if it be evidentiary and if it be a contest, is what happened in the conversation between the Panel and Ms Jaksic when the matter of "inconsistencies" was said to have been raised.

47 Ultimately, there is little real factual issue between the parties as to the process to which Ms Jaksic attests and that described by the Panel in its decision. Ms Jaksic described some information as to the nature of the non-formal examination and the assessment based upon it given by her solicitors prior to going to an examination by two members of the Panel.

48 During the formal examination, according to Ms Jaksic, Dr Wan asked her to lift her right shoulder to the point where she felt pain and, thereafter, Dr Wan proceeded to push the shoulder further upwards. Ms Jaksic asserts that Dr Wan never directly asked her about her inability to lift her shoulder to a higher point during this examination, or anything like it.

49 Further, Ms Jaksic asserts that at no other time did she lift her shoulders when present for the examination. That assertion included her conduct during the necessary disrobing for the examination. Moreover, Ms Jaksic asserts that the documents that she took to the re-assessment were taken in a "wheelie bag" because she was unable, physically, to carry all of the medical documents without straining her shoulder.

50 Ms Jaksic gives an explanation as to the comments of the Panel (or seemingly in relation to those comments) about radiating pain in the fourth and fifth fingers and asserted:

"I meant to explain to the panel that I had some intermittent pain in my fingers as a result of injuries and not as much as a result of them tapping my bicep muscle."

51 It seems from the Panel decision, that the foregoing, if intended by Ms Jaksic, is not the interpretation placed on her comments by the Panel.

52 Further, Ms Jaksic attests to the fact that Dr Sutton also examined her following Dr Wan's examination in relation to each part of her body that was subject to examination. Dr Sutton did not ask Ms Jaksic any questions in relation to range of movement.

53 Ms Jaksic accepts that she was asked to sit in the waiting room following the initial examination and asserts that Dr Wan said words to her that she understood were to the following effect:

"Do you remember Dr Williamson? When he examined you, you were able to lift your shoulder higher.

I replied: 'I cannot remember Dr Williamson."

54 Further, Ms Jaksic's Affidavit is (at [14]) in the following terms:

"I was never directly asked by either of the assessors to explain any allegations of discrepancy of movement. The only time something was mentioned to me was at the end of the medico-legal assessment in the waiting room."

55 It is accepted that the communication with Ms Jaksic was through an interpreter. For obvious reasons this creates some difficulty in communication. Yet the Court must work on the assumption that the interpreter properly and adequately interpreted the questions asked and the answers given, although there is no certainty as to that aspect.

56 Moreover, given the misunderstanding between the Panel and Ms Jaksic as to the issue of pain resulting from tapping on the bicep, it may be that the foregoing assumption is, at least in part, inconsistent with the evidence.

57 The comments of the Panel and their statement of the facts are set out in the extracts of the Panel Decision, above, and, in particular, from [18] and following.

58 After the length of time between the examination for the purpose of the reassessment and the swearing of the Affidavit of Ms Jaksic, one can readily understand some imperfections in memory. Nevertheless, the fundamental process does not seem to be at issue.

59 The Panel decision describes a process whereby an initial examination occurred and a later examination occurred. Ms Jaksic attests to a process whereby each panel member examined each relevant injury location twice (i.e. there were four examinations), which number is consistent with the Panel's description of an initial examination and a later one.

60 Generally, Ms Jaksic showed herself to be a witness of truth and I have no reason to disbelieve her evidence. Ultimately, the judgment in these proceedings does not turn on her evidence or her credit.

Consideration

61 Essentially, the plaintiff submits that the Panel acted in excess of jurisdiction in revoking the earlier certificate of 16 May 2011 and issuing a new certificate as to whole person impairment.

62 It is necessary to recite some non-contentious issues in these proceedings. First, except to the extent that the excess of jurisdiction to which reference has been made is an error of law, it is not said that the Panel decision was affected by error of law or jurisdictional error. The Panel asked itself the right question; took into account all mandatory considerations; did not take into account an irrelevant consideration; did not utilise the wrong test and did not misapprehend the nature or limits of its powers. Nor did the Panel perform an act or make a decision that is not sanctioned by authority: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

63 No other allegation is made as to issues giving rise to an error of law or Wednesbury unreasonableness. As a consequence, the plaintiff relies upon an excess of jurisdiction, being conduct or an act within general power but performed in breach of the statutory conditions necessary to authorise the conduct or act: Public Service Association of South Australia v Federated Clerks' Union of Australia (SA) [1991] HCA 33; (1991) 173 CLR 132 at 164, per McHugh J.

64 The excess of jurisdiction relates to a denial of procedural fairness and, if it be different, a failure to abide by the procedures laid down by the Guidelines and practice notes issued by the MAA.

65 As earlier stated, those Guidelines are, relevantly, intended to confirm that the Panel was bound by procedural fairness in the conduct of its re-assessment.

66 As earlier stated (see [38] and following), procedural fairness depends upon the statutory context for the decision making process. The Panel is charged, on a review such as this, with the function partly of an expert witness, partly inquisitorial and partly adversarial. Largely, the Panel, when examining a claimant, is fulfilling the function of applying the medical expertise of the members of the Panel in investigating the degree of the impairment suffered as a result of the claimed injuries.

67 In those circumstances, there is necessarily a significant diminution in the level of formality that would occur in adversarial proceedings. It is also, therefore, essential that the Panel adhere to those requirements prescribed in order to ensure procedural fairness.

68 The provisions of s 65 of the Act render medical assessments (including an assessment on review) subject to the relevant provisions of the Guidelines relating to procedures, inter alia, for assessment.

69 Further, by operation of s 65(2), the MAA is empowered to arrange for the provision of information to medical assessors to promote accurate and consistent medical assessments. Pursuant to the last mentioned power, the MAA has issued practice notes.

70 Review Panel Practice Note 3/2005 deals with the Review Panel process and relevantly provides:

"4. Whether Re-examination is required:

...

c. Re-examination required:

If a re-examination is to be conducted, the Review Panel should agree upon:

i. Who should conduct the examination, when and where

ii. If only one member is to conduct the re-examination, reasons why the Review Panel is satisfied that examination by more than one member is not required in this case

iii. Any special requests to be made of the injured person e.g. provide investigation results, bring imaging studies to the appointment, etc

iv. Key injuries, areas or issues to be addressed in the re-examination, and any injuries to be excluded from the examination

v. Whether a summary of examination findings will be written and circulated to Panel members prior to the next Panel conference.

In general, at any re-examination, all of the claimed injuries within the examining members' area/s of expertise should be included, in order to ensure that all aspects of the assessment are correct.

If any of the claimed injuries are to be excluded from the examination, the reasons for this decision should be clearly stated in the Panel's reasons.

If the injured person's condition has changed and/or the clinical findings at re-examination are different to those recorded at the previous medical assessment, the Review Panel must base its decision/s on the findings of the re-examination."

Further, the relevant practice note provides information dealing with a check on procedural fairness: see clause 8. Clause 8 of the aforesaid practice note is in the following terms:

"8. Procedural fairness check:

Before coming to a final decision on the issues before them, the Review Panel should consider whether the parties have had opportunity to address the issues that are being decided. The Review Panel should adjourn and invite submissions from the parties if:

a. the Review Panel is inclined to revoke a certificate issued by the previous medical Assessor when that certificate and/or that aspect of the assessment was not disputed in the review application or reply, or

b. the Review Panel is inclined to find that a conclusion of the original medical Assessor is incorrect, when that aspect of the assessment was not disputed in the review application or reply, or

c. the Review Panel is of the view that the party that may be disadvantaged by their decision has not addressed a critical issue

In such cases the Review Panel should generally:

a) formulate a letter to the parties explaining the aspect/s of the assessment that are under consideration

b) where applicable, indicate the preliminary views of the Panel on that issue

c) seek submissions on the specified issue/s from the parties, to be provided within a specified time frame which will be no less than 10 working days, and

d) make arrangements for the time and date on which the Review Panel will reconvene to consider the submissions.

The Secretary of the Review Panel will:

e) forward the letter to both parties, and

f) forward copies of any submissions received to the other party and to all Review Panel members."

71 Unlike the Guidelines, the practice note is not "binding". Nevertheless, the terms of clause 8 of the practice note, recited above, emphasise the need, in providing the parties with procedural fairness, to provide them with an appropriate opportunity (including, where necessary, an adjournment and the invitation of submissions) to prepare and to present that party's case, including any critical issue of which the party has been given notice.

72 Fundamental to the process of procedural fairness is that a party is given notice of the hearing and has the right to be heard. Ordinarily, and fundamental to the purposes which the notice is to serve, the notice provided must disclose the critical issues that are required to be addressed: Kanda v Government of Malaya [1962] AC 322 (PC) at 337, per Lord Denning; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582, 587 per Mason J. In Kioa v West at 587, Mason J said:

"[40] In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it."

73 The Panel (at page 7 of 17, recited at [22] herein) described the process it adopted. The Panel observed a greater range of movement in informal movements than in clinical examination and "raised the issue of discrepancy" in formal and non-formal movements.

74 The Panel, according to its decision, emphasised "the importance of giving [Ms Jaksic's] best effort to demonstrate to the maximum ranges of movements in her spine and ... limbs". Further, statements in the decision repeated that the discrepancy was drawn to Ms Jaksic's attention and additional measurements were made: see those passages recited above at [25], [26] and [27].

75 According to the Panel decision, the direction to Ms Jaksic was not to explain the difference in movement but, rather, to seek to move her limbs to the extent possible or to an extent that her pain commenced. It is not clear from the recitation of the Panel whether the Panel sought for Ms Jaksic to move her spine and limbs only to the extent that there was no pain or beyond that extent and, if beyond that extent, the degree of pain that should be suffered before ceasing.

76 Further, and more importantly, the Panel decision does not invite an explanation from Ms Jaksic of the discrepancy and it is not clear from the Panel decision whether the degree of the discrepancy and its precise nature was described to Ms Jaksic. If an invitation to explain were provided, the Panel decision does not recite the response nor that no response was forthcoming.

77 Whether one accepts Ms Jaksic fully, given certain imperfections in memory, or simply relies upon the description of the events by the Panel in its decision, the two Panel members who examined Ms Jaksic (and observed her informal movements) did not question her adequately about the detailed inconsistencies or discrepancies alleged in those movements. Nor did either of the medical assessors that examined Ms Jaksic require from her a response as to the inconsistencies.

78 The rules of procedural fairness applicable to administrative decision-making are, as earlier stated, flexible and must take account of the context. In the context of a medical examination, it cannot be said that the members of the Panel that are performing the examination are required, in a manner redolent of the rule in Browne v Dunn (1893) 6 R 67 (HL), to put, precisely, questions for which an explanation is required. Nevertheless, it is necessary that the claimant, the person being examined, is put on notice with some precision of discrepancies that are alleged. It is also necessary that a response or explanation for the discrepancy be sought, and, if given, considered.

79 A further examination of the kind here conducted would confirm or otherwise the original examination. It would not give the claimant (now the plaintiff) an opportunity of addressing the alleged inconsistencies which, by that time, were giving the members of the Panel concern.

80 In my view, notwithstanding the significant flexibility that must be given to Panel members in conducting an examination, insufficient attention was given to the task of providing Ms Jaksic with an opportunity to address the issues of concern to the Panel. Certainly, the Review Panel did not, as suggested in the practice note, adjourn and invite submissions from Ms Jaksic in circumstances where Ms Jaksic would be disadvantaged by their decision and had not addressed a critical issue: practice note, clause 8(c).

81 More importantly Ms Jaksic did not have an opportunity to confirm the history and respond to the inconsistent observations as required by clause 1.43 of the Guidelines, recited above.

82 For the foregoing reasons, the process adopted by the Review Panel denied procedural fairness to the plaintiff and did not comply with the requirements of clause 1.43 of the Permanent Impairment Guidelines.

83 The Court makes the following orders:

(1) An order in the nature of certiorari calling up and quashing the certificate and medical assessment dated 6 December 2011 issued by the third defendants in relation to the claim by the plaintiff under the Motor Accidents Compensation Act 1999;

(2) The defendants, or any of them, their officers, servants or agents are restrained from acting on or taking any further step in reliance upon the aforesaid certificate and medical assessment of 6 December 2011;

(3) An order in the nature of mandamus requiring the second defendant, the Motor Accident Authority of New South Wales, through its proper officer, to refer to a review panel of medical assessors the application by Insurance Australia Ltd, trading as NRMA, the first defendant herein, to be carried out by a review panel consisting of medical assessors other than those that constituted the review panel that issued the certificate and medical assessment of 6 December 2011, referred to above, to deal with the said application in accordance with law;

(4) The first defendant shall pay the plaintiff's costs of and incidental to the proceedings, as agreed or assessed.

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Decision last updated: 20 August 2013