Supreme Court New South Wales

• Medium Neutral Citation: Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435
• Hearing dates: 16 October 2014
• Decision date: 22 October 2014
• Before: Adamson J

Decision

1. Summons dismissed.

2. Unless an application for a different order is made to my Associate in writing within seven (7) days, order the plaintiff to pay the defendants' costs.

• Catchwords: ADMINISTRATIVE LAW - judicial review of assessment of permanent impairment by medical assessor appointed under Motor Accidents Compensation Act 1999 (NSW) - summons dismissed - relevance of dietary restrictions - medical assessor gave sufficiently detailed reasons for assessment - obligation to give reasons does not extend to expressing the obvious - decision-maker's duty to inquire does not extend to interrogation at a high level of particularity
• Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 44, 59, 61, 63, 131, 132; Supreme Court Act 1970 (NSW), s 69; Uniform Civil Procedure Rules 2005 (NSW), r 59.10
• Cases Cited: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372; Carpenter v Carpenter Grazing Co Pty Limited (1987) 5 ACLC 506; Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280; Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442; Frost v Kourouche [2014] NSWCA 39; Origin Energy LPG Limited v BestCare Foods Limited [2013] NSWCA 90; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82; Stead v State Government Insurance Commission (1986) 161 CLR 141; SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9; Waterways Authority v Fitzgibbon [2005] HCA 57; Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43
• Texts Cited: Motor Accidents Authority (NSW) Permanent Impairment Guidelines (1 October 2007); Guides to the Evaluation of Permanent Impairment (4th ed 1993, American Medical Association)
• Category: Principal judgment
• Parties: Jason Farr (Plaintiff); Insurance Australia Limited t/as NRMA Insurance Ltd (First Defendant); Motor Accidents Authority of New South Wales (Second Defendant); Assessor Associate Professor WJ O'Reilly (Third Defendant)
• Representation: Counsel: EG Romaniuk SC/EE Grotte (Plaintiff); MA Robinson SC/A Poljak (Defendants); Solicitors: Napier Keen (Plaintiff); Sparke Helmore Lawyers (First Defendant)
• File Number(s): 2014/142683
• Publication restriction: Nil

Judgment

Introduction

1 By summons filed on 12 May 2014, Jason Farr, the plaintiff, seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of an assessment conducted by Associate Professor O'Reilly, a medical assessor appointed under the Motor Accidents Compensation Act 1999 (NSW) (MACA). The grounds of challenge identified in the summons are:

(1) That the assessor ignored relevant material;

(2) That the assessor's reasons were inadequate.

2 There is also a challenge to the decision made by Josephine Redmond, the Proper Officer of the Medical Assessment Service (MAS), not to refer a review of the assessment to a panel on the basis that it was not incorrect in any material respect. Mr Romaniuk SC, who appeared with Ms Grotte on behalf of the plaintiff did not challenge the decision of Ms Redmond separately but contended that, if the assessment were set aside, her decision would also be set aside.

3 The first defendant is the sole contradictor. The second defendant, the Motor Accidents Authority of New South Wales (the MAA), and the third defendant, Associate Professor O'Reilly, have filed submitting appearances. Accordingly where I refer in these reasons to 'the defendant' I am referring to the first defendant, for whom Mr Robinson SC appeared with Ms Poljak.

Relevant legislation

MACA

4 A person, who is otherwise entitled to damages under MACA, is not entitled to damages for non-economic loss unless the degree of permanent impairment is greater than 10%: s 131 of MACA. Where there is a disagreement about the degree of permanent impairment suffered, the Court may not award damages for non-economic loss unless the degree of permanent impairment has been assessed by an assessor, who conducts an assessment in accordance with s 133 of MACA: s 132 of MACA. The persons qualified to conduct such assessments are medical practitioners who have the relevant specialty for the task and are appointed by the MAA under s 59 of MACA. Following such an assessment, the assessor issues a certificate, which is conclusive evidence as to the matters certified in any court proceedings: s 61(1) and (2) of MACA. Where there is more than one certificate assessing permanent impairment (because different parts of the body or different impairments are assessed), these figures are added (by reference to a combined table) to arrive at a figure for total permanent impairment. The assessment of permanent impairment is commonly referred to as whole person impairment (WPI) and is expressed in terms of a percentage.

5 Section 61(9) provides that a certificate is to set out the reasons for any finding by the medical assessor as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

6 A party may apply for a referral of a medical assessment to a review panel but only on the ground that the assessment was "incorrect in a material respect": s 63 of MACA.

7 The Authority may issue guidelines with respect to the assessment of the degree of impairment of an injured person as a result of an injury caused by a motor vehicle accident: s 44(1)(c) of MACA. The guidelines may adopt the provisions of other publications, with or without modifications: s 44(3) of MACA. It is common ground that the applicable guidelines are the MAA Permanent Impairment Guidelines (1 October 2007) (the Guidelines). The Guidelines incorporate, in part, the "Guides to the Evaluation of Permanent Impairment" (4th Ed) published by the American Medical Association (the AMA 4 Guides).

8 The Guidelines relevantly provide:

1.3 The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.

1.4 Original Assessments - These Guidelines apply to all assessments of the degree of permanent impairment (under s 58(1)(d) of the Act [MACA] conducted by a medical assessor. . .

1.20 An assessment of the degree of permanent impairment involves three stages:

(i) A review of medical and hospital records, including:

all available treating and medico-legal doctor notes and reports (general practitioner, specialist and allied health), both prior to and following the accident; and

diagnostic findings from all relevant investigations.

(ii) An interview and a clinical examination, wherever possible, to obtain the information specified in the MAA Guidelines and the AMA 4 Guides necessary to determine the percentage impairment; and

(iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage permanent impairment together with the evidence, calculations and reasoning on which the determination is based. The applicable parts of the MAA Guidelines and the AMA 4 guides should be referenced.

1.23 The evaluation should only consider the impairment as it is at the time of the assessment.

1.40 Some tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, assessors should make no separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA 4 Guides should not be used. However, each chapter of the AMA 4 guides includes an allowance for associated pain in the impairment percentages.

6.19 Damage to the teeth can only be assessed when there is a permanent impact on mastication and deglutition (p 231, AMA 4 Guides) and/or loss of structural integrity of the face (pp 229-230, AMA 4 guides).

6.20 When using Table 6 (p 231, AMA 4 Guides) Relationships of Dietary Restrictions to Permanent Impairment the first category is to be 0%-19%, not 5%-19%.

9 The AMA 4 Guides relevantly read:

9.3b Mastication and Deglutition

The act of eating includes mastication and deglutition. Numerous conditions of nongastrointestinal origin, singly or in combination, may interfere with these functions.

Dysfunction of the temporomandibular joint may impede mastication, affect speech, cause lower facial deformity, and produce pain. In this section, the effect of temporomandibular joint dysfunction on eating is considered; other effects may be considered in conjunction with parts of the Guides that deal with the nervous system or pain.

In accordance with the philosophy of the Guides, when mastication and deglutition are evaluated, the ability to eat should be stable and maximal rehabilitation should have been achieved. When mastication or deglutition is impaired, the imposition of dietary restrictions usually results. Such restrictions are the most objective criteria by which to evaluate permanent impairment of these functions. The relationship of the restrictions to impairments of mastication and deglutition are shown in Table 6 (at right).

Table 6. Relationship of Dietary Restrictions to Permanent Impairment.

Type of restriction	% Impairment of the whole person
Diet is limited to semisolid or soft foods	5 - 19
Diet is limited to liquid foods	20 - 39
Ingestion of food requires tube feeding or gastrostomy	40 - 60

. . .

15.3 Pain, Impairment and Disability

The Guides defines impairment as the loss, loss of use, or derangement of any body part, system, or function. Thus, impairment is defined on an anatomic, physiologic, or psychological basis. This definition operates at the organ level and presumes a disease model that involves endogenous systems and generally is independent of the external milieu. In this narrow context, it would be difficult to consider pain an impairment.

But the Guides interprets the definition of impairment to involve also interfering with the individual's performance of daily activities (see Glossary). In this broader context, impairment is at the level of the individual, is based on an illness model, and is viewed as being dependent on personal needs and the demands of the external milieu. In this context, pain may be viewed as an impairment that should be assessed according to the individual's residual functional capacity. Chronic pain and pain-related behaviour are not, per se, impairments, but they should trigger assessments with regard to ability to function and carry out daily activities.

Supreme Court Act 1970

10 This Court has supervisory jurisdiction over those acting under legislation, including delegated legislation, under s 69 of the Supreme Court Act.

Uniform Civil Procedure Rules 2005 (NSW) (UCPR)

11 Rule 59.10 of the UCPR provides that proceedings for judicial review must be commenced within 3 months of the date of the decision. This Court may extend the time: r 50.10(2) of the UCPR.

Facts

12 The plaintiff was injured in a motor vehicle accident on 6 August 2012. He was referred to three assessors for assessment of his permanent impairment, or WPI, as follows:

Date of certificate	Assessor/ speciality	Relevant injuries	% WPI
11 November 2013	Dr McGlynn/ plastic surgeon	scarring around his mouth, fracture of his left cheek bone and a soft tissue injury to his left eye	3%
23 November 2013	Dr Crane/ orthopaedic surgeon	Musculo-ligamentous strain cervical spine; soft tissue injury left knee; injury left hand	7%
2 December 2013	Associate Professor O'Reilly/ dentist	Injuries to teeth 23, 32, 21 and 22; left body of mandible, fracture	0%

13 On 23 December 2013 the plaintiff sought a referral to a medical panel for review of Associate Professor O'Reilly's certificate but this was declined on 10 February 2014 by Ms Redmond.

14 The summons was filed in this Court on 12 May 2014. The plaintiff requires an extension of time under the UCPR to commence these proceedings. The defendant did not wish to be heard against an extension. The length of time between the issue of Associate Professor O'Reilly's certificate on 2 December 2013 and the filing of the summons is largely accounted for by the plaintiff's application for a referral to the medical panel. In all the circumstances, including the defendant's position, I consider it to be appropriate to extend time. The plaintiff has an obvious interest in challenging the decision. The defendant cannot point to any prejudice.

Associate Professor O'Reilly's assessment: the certificate and the reasons

15 Associate Professor O'Reilly identified the relevant injuries as injuries to teeth 23 (upper left canine, eye tooth), 32 (lower left lateral incisor), 21 (upper left central incisor) and 22 (upper left lateral incisor) and fracture of the left body of mandible. Teeth 23 and 32 were lost in the accident and teeth 21 and 22 were chipped. Associate Professor O'Reilly set out in his reasons the pre-accident medical history and relevant personal details, the history of the motor vehicle accident, the history of symptoms and treatment following the motor vehicle accident as well as a review of the documentation. None of these matters was the subject of complaint, except as referred to below.

16 Associate Professor O'Reilly referred at page 6 of his reasons to the assessment by Dr McGlynn in the following terms:

"I note that Assessor McGlynn has assessed a number of injuries which have been referred to in the body of this report, and as I understand it, he has formed an opinion with regard to the fractures of the maxillary sinus, orbits and pterygoid plates. I will therefore not form an opinion with regard to these areas."

17 Associate Professor O'Reilly referred at page 11 of his reasons to the documentation he had reviewed and referred again to Dr McGlynn's certificate in the following terms:

A certificate, dated 11 November 2013, by Assessor Michael John McGlynn. I note he has assessed the injuries to the left cheekbone - fracture, left eye - soft tissue injury, and the mouth - scarring. Dr McGlynn ascribed a total permanent whole person impairment for the face - scarring disfigurement of 3%. I note that under the heading "Diagnosis and Causation", at page 5 of his report, he states inter-alia: 'Scarring of the mouth (lips) and neck causing facial disfigurement, and fractures of the left malar, orbit and mandible, caused by injuries sustained in the motor vehicle accident of 6 August 2012.'

18 Associate Professor O'Reilly noted the following current symptoms:

"The claimant states that he has to force his mouth "apart" in eating. He states that his mother states that he grinds his teeth at night. He states that, post-eating, he gets pain mainly in his right ear."

19 Associate Professor O'Reilly said in the section in his reasons on clinical examination:

"The claimant exhibits a three-finger gap between the incisal edges of teeth 41 [lower front central incisor] and 11 [upper right central incisor]. This is adequate range of movement."

20 In the final section of his reasons, entitled "Determinations", Associate Professor O'Reilly said that the determination of permanent impairment was made in accordance with the AMA 4 Guides and the Guidelines. There then followed a passage which, by reason of the attention given to it in the proceedings, I will set out in full.

Degree of Permanent Impairment

I enquired of the claimant as to his dietary intake over the previous three days. The claimant indicated he was able to eat a variety of foodstuffs including McDonalds, spring rolls, Weet Bix, Easy Mac Toast, ham and tomato sandwiches. He states that he is able to eat red meat but prefers minute steak, chicken is partaken. He eats fish as required. He states that he avoids apples and chooses not to eat them due to opening and closing his mouth. He eats all vegetables but will cut up carrots and masticate them on his back teeth.

The claimant also recites at assessment there has been no loss of, or impairment to, taste.

Therefore, utilising Table 6 'Relationship of Dietary Restrictions to Permanent Impairment' in Chapter 9.3b 'Mastication and Deglutition of Ear, Nose and Throat Related Structures', it is my opinion that there is zero percent whole person impairment.

	Body Part or System	AMA Guides/ MAA Guidelines References (chapter/ page/table)	Permanent (YES/NO)	Current %WPI*	%WPI* from pre-existing OR subsequent causes	%WPI* due to motor accident
1.	Teeth 23, 32, 21 and 22	Table 6, Chapter 9.3b	Yes	0%	0%	0%
2.	Left mandibular fracture	Table 6, Chapter 9.3b	Yes	0%	0%	0%

*%WPI = percentage whole person impairment

History recorded by Dr McGlynn in his certificate of 11 November 2013

21 The plaintiff relied on the following history taken from the plaintiff by Dr McGlynn at his assessment on 4 November 2013 which is recorded in the reasons for his certificate dated 11 November 2013:

"He has reduced range of jaw movement making it impossible to eat large things such as hamburgers.

He feels pain near both ears when eating hard and firm food so avoids eating steak; he says his diet is limited to soft and semi-solid food."

The plaintiff's challenges to the assessment

22 The plaintiff alleged that the reasons given by Associate Professor O'Reilly were inadequate in that he failed to address the relationship between the history he had taken as to the plaintiff's eating habits and dietary restrictions and the applicable portion of the AMA 4 Guides and Guidelines. Mr Romaniuk submitted that a recitation of the foods that the plaintiff consumed in the three days before the assessment was insufficient unless the foods were characterised as being either soft, semi-solid or in another category.

23 In order to perform that characterisation, Mr Romaniuk submitted that it was necessary for a more detailed inquiry to be undertaken to ascertain how the foods referred to by the plaintiff were prepared and whether they were cooked, or processed in some way as to facilitate their mastication. He postulated the example of the hard-tack ANZAC biscuits rationed to soldiers at Gallipoli and submitted that the category into which such biscuits would fall would depend on the extent to which they had been processed. He explained that such biscuits could be eaten untreated, in which case they were so hard that the effort of consuming them could result in a chipped tooth; they could be soaked until they became soft and eaten like cereal; or they could be grated into fine particles and turned into porridge with the addition of water and the application of heat. Until one had made a detailed inquiry into their preparation, one would, he submitted, be none the wiser as to which category (soft, semi-solid, or otherwise) they ought correctly be allocated.

24 Mr Romaniuk also submitted that Associate Professor O'Reilly had failed to take into account pain, which he contended was a mandatory relevant consideration in making the assessment.

25 Mr Romaniuk submitted that Associate Professor O'Reilly's reasons showed that he had failed to accord procedural fairness, or alternatively not properly considered the history taken by Dr McGlynn in the previous month and that, given the potential inconsistency between Dr McGlynn's history of the plaintiff's diet being limited to soft and semi-solid food and the history Associate Professor O'Reilly obtained, he was required to address this in his reasons. He contended that Associate Professor O'Reilly failed to take into account the findings of Dr McGlynn which he submitted amounted to highly probative evidence. Mr Romaniuk relied on Origin Energy LPG Limited v BestCare Foods Limited [2013] NSWCA 90 at [87]-[90] per Ward JA for the proposition that, if such material is ignored, the decision might be illogical.

26 Mr Romaniuk submitted that it ought not be inferred that Associate Professor O'Reilly had applied cl. 6.20 of the Guidelines (which increased the available range from 5-19% to 0-19%) because there was no reference in the reasons to that clause.

27 Mr Romaniuk also submitted that the plaintiff was entitled to know on what basis his permanent impairment was assessed at zero. He contended that the assessment was consistent with the following two possibilities: first, that he did not fall within the lowest band in Table 6 at all; and secondly, that although he fell within the lowest band, his impairment ought nonetheless be assessed at the lowest end of the band. He submitted further that, if it were the latter scenario he was entitled to know on what basis he fell within the lowest end of the band rather than a higher figure, even one as low as 1%.

28 The defendant submitted that the plaintiff had failed to particularise his grounds of judicial review with sufficient clarity or particularity. There is some substance in this submission. However, the defendant did not, at the end of Mr Romaniuk's submissions, contend that it was unable to deal with any of the matters he had raised. Accordingly I shall address all grounds raised although some were developed beyond what is alleged in the summons or what is contained in the written submissions.

Reasons

29 Associate Professor O'Reilly's obligation to give reasons required him to set out "the actual path of reasoning" by which he arrived at the assessment of 0% WPI: Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43 at [48] (Kocak); Frost v Kourouche [2014] NSWCA 39. The reasons actually stated are to be understood as recording the steps that were in fact taken at arriving at that result: Waterways Authority v Fitzgibbon [2005] HCA 57 at [130] per Hayne J.

30 Some latitude is to be given to the reasons of an administrative decision-maker, which are not to be construed "minutely and finely with an eye keenly attuned to the perception of error" (Collector of Customs v Pozzolanic [1993] FCA 322; 43 FCR 280) and are to be given what has been referred to as a "beneficial construction": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271-272. However, a beneficial construction does not permit reasons to be inferred which are not stated if they are not necessarily implied by what is expressed: SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] per Stone J. Although reasons need not be extensive, where more than one conclusion is open it is necessary for the decision-maker to explain a preference for one conclusion rather than another: Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [121]-[122] per Basten JA.

31 The assessment of WPI required an assessment to be made of the plaintiff's capacity with respect to mastication (chewing) and deglutition (swallowing). According to the AMA 4 Guides (by which Associate Professor O'Reilly was bound by reason of their partial incorporation in the Guidelines), dietary restrictions are "the most objective criteria by which to evaluate permanent impairment of these functions". This relationship explains why the table provides for the % WPI to be related to the level of dietary restriction.

32 In my view, the reasons show that Associate Professor O'Reilly adjudged 0% to be the appropriate percentage on the basis that he did not consider that the plaintiff qualified for the lowest band in Table 6 of 0-19% because his diet was not limited to semisolid or soft foods. I consider that this follows from the recitation in the reasons of the foods that the plaintiff ate, not only in the three-day period prior to the assessment, but also more generally as a matter of habit at the time. In my view, the requirement to give reasons was satisfied by the description of the food that the plaintiff habitually ate, and was capable of eating. Although the need to specify the means of preparation prior to cooking might arise in the case of hard-tack ANZAC biscuits because they are notoriously hard and therefore challenging to consume if not processed in some way, I do not consider the analogy to be apposite in the present case. It would be reasonable to assume, in the absence of contrary intention, that a reference to an apple is a reference to a whole, uncooked fruit; a reference to a minute steak to be a reference to a thin slice of cooked beef; a reference to carrot that is cut up into pieces to be a reference to uncooked carrot; and a reference to a spring roll to be a reference to a deep-fried spring roll. At all events, these were matters of factual judgment and expert opinion which were pre-eminently a matter for the assessor.

33 Whether, and how, pain ought be taken into account was not the subject of detailed argument, although reference was made to cl 1.40 of the Guidelines and 15.3 of the AMA 4 Guide. In my view, there is no substance in the contention that Associate Professor O'Reilly did not take into account pain in making his assessment, even if he was obliged to. The difficulty encountered by the plaintiff in eating apples is specifically referred to. The principal reference to pain is in the record of current symptoms which refers to the plaintiff suffering pain mainly in his right ear after eating. In my view, Associate Professor O'Reilly was entitled to infer that the foods that the plaintiff generally ate were a sufficient indication of his ability to chew and swallow, this capacity being the matter germane to the assessment. If the pain during (or in this case, after) this activity were of significance, it would have affected the plaintiff's history. The plaintiff did not raise pain as an inhibiting factor in his choice of foodstuffs, except tangentially by reference to apples.

34 However one might classify the range of food stuffs that the plaintiff reported to Associate Professor O'Reilly that he regularly consumed, I do not consider that they could collectively be regarded as being confined to the category of "soft and semi-solid food". Accordingly, the conclusion would follow from the plaintiff's history that his diet was not limited to semisolid or soft foods. Because of the importance placed on dietary restrictions in the assessment of permanent impairment in the AMA 4 Guides, it was, in my view both sufficient and appropriate for Associate Professor O'Reilly to document the plaintiff's diet with its restrictions in his assessment of permanent impairment. Dietary restrictions were not, in the context of the assessment of permanent impairment under Table 6, a mere matter of history. They were substantially determinative in that a capacity to consume foods that were more challenging in terms of mastication and deglutition than "semi-solid or soft foods" results in a 0% WPI. The statement of the plaintiff's diet in Associate Professor O'Reilly's reasons is, for the reasons given by Hayne J in Waterways Authority v Fitzgibbon, to be understood as amounting to a step taken by him in arriving at the result of a WPI of 0%.

35 I consider that Associate Professor O'Reilly has adequately explained the basis of his assessment of 0% WPI. An assessment of 0% WPI figure is consistent both with:

(1) a finding that the plaintiff's diet is not restricted to soft and semi-solid food; and

(2) a finding that it is restricted to soft and semi-soft food but that he is at the lowest end of the range

36 In my view, Associate Professor O'Reilly's reasons make it plain that finding (1) above is the basis for the assessment of 0% WPI in the present case.

37 I do not consider that the obligation to give reasons required Associate Professor O'Reilly to say something to the effect that because red meat; chopped, uncooked carrots; and spring rolls require greater mastication and deglutition than semisolid or soft foods, the plaintiff's capacity to consume these items demonstrated that he did not qualify for a finding above zero WPI. In my view, such a statement would be an expression of the obvious, having regard to the context in which the assessment was made, the applicable AMA 4 Guides and the Guidelines and the recitation of food stuffs eaten by the plaintiff.

38 Nor do I consider that it was necessary for Associate Professor O'Reilly to refer specifically to cl 6.20 of the Guidelines. The obligation to give reasons does not require a decision maker to set out all the law that affects the decision. The Guidelines provide, as set out above, in cl 1.20(iii) that: "The applicable parts of the MAA Guidelines and the AMA 4 Guides should be referenced." Although I consider that Associate Professor O'Reilly complied with this requirement by referring to Table 6 and Chapter 9.3b, I would not regard non-compliance as resulting in invalidity of the certificate since I do not discern any legislative intention that such a result ensue: see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [91] and [93].

39 At any event, I do not discern any reason to suppose that Associate Professor O'Reilly did not apply the band of 0-19% (which was the result of cl 6.20), rather than 5-19% (for which AMA 4 Guide provided) to his assessment. More would be required to draw such an inference than that he did not refer specifically to cl 6.20.

40 In these circumstances, the presumption of regularity has not been displaced. As was said by Hope JA, Samuels and Priestley JJA agreeing, in Carpenter v Carpenter Grazing Co Pty Limited (1987) 5 ACLC 506 at 514:

". . . the true rule is that the presumption may reasonably be drawn where an intention to do some formal act is established, when the evidence is consistent with that intention having been carried into effect in a proper way, the observance of the formality has not been proved or disproved and its actual observance can only be inferred as a matter of probability: Harris v Knight (1890) 15 PD 170 at 179-180; In the Estate of Bercovitz [1962] 1 WLR 321 at 327."

41 The plaintiff's challenge to the certificate based on the history given to Dr McGlynn, although propounded as a failure to give adequate reasons, also included a submission that Associate Professor O'Reilly failed to take into account relevant, highly probative evidence.

42 Dr McGlynn's history provided some basis to consider that the plaintiff could qualify for the lowest band in Table 6. However, Associate Professor O'Reilly's obligation was to make his own assessment as at the assessment date on the basis of the history he was given by the plaintiff and the material provided to him. Dr McGlynn's assessment was of different injuries and did not require him to assess the plaintiff's capacity for chewing and swallowing, this being within the province of Associate Professor O'Reilly's assessment.

43 Mr Romaniuk confirmed that he did not submit that Associate Professor O'Reilly was required to interrogate the plaintiff about what he said to Dr McGlynn. However, he did submit that the contents of Dr McGlynn's certificate required Associate Professor O'Reilly to probe his answers to the questions about diet to elicit more detail for the purposes of resolving any inconsistency between Dr McGlynn's finding that his diet was limited to semisolid and soft foods and the history he gave to Associate Professor O'Reilly. Mr Romaniuk contended that if Associate Professor O'Reilly asked the plaintiff whether he ate steak and the plaintiff said that he preferred minute steak Dr McGlynn had a duty to inquire why he preferred minute steak.

44 I do not accept that the duty to inquire which is relevant to the determination of the legality of administrative decisions made under delegated legislation mandates such an interrogation, or indeed authorises this Court to dictate the minutiae of how an assessor, such as Associate Professor O'Reilly, ascertains the dietary restrictions of a person such as the plaintiff. In the context of judicial review of administrative decisions, the so-called duty to inquire is of limited operation. For this Court to find that the alleged failure of a duty to inquire results in the invalidity of the certificate, I would have to be satisfied that there was an implied obligation on Associate Professor O'Reilly to examine and investigate the plaintiff's answers to questions about his diet at a level of particularity that distinguishes between minute steak on the one hand and steak on the other: Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442 at [22]-[23] per Gleeson CJ and McHugh J.

45 Although one might accept that it is easier to chew and swallow minute steak than thick-cut steak, the distinction would seem to be largely immaterial when the lowest level of impairment that results in a WPI between 0 and 19% is where the diet is limited (by compromised mastication and deglutition) to semisolid or soft foods. The intricacies of the debate tend to indicate, in my view, that it can hardly have been contemplated that this level of particularity is required for the validity of the assessment.

46 Further, I do not accept the proposition that Associate Professor O'Reilly overlooked Dr McGlynn's assessment when making his own. Dr McGlynn's reasons were referred to expressly in Associate Professor O'Reilly's reasons. The history obtained by Associate Professor O'Reilly himself was more detailed. Further, he was not entitled to act on a different history obtained by another specialist in an area which was not as apposite to the assessment he was obliged to undertake. I do not accept that Dr McGlynn's reasons were, as the defendant contended, "of no moment". Nonetheless, a medical assessor's duty is to come to his or her own opinion and take his or her own history, not to analyse every piece of information from every opinion contained in a document with which he was provided: Kocak at [47]. The plaintiff's resort to authorities such as Origin Energy v BestCare was, in my view, misplaced. The assessment made was not illogical. Associate Professor O'Reilly took into account Dr McGlynn's reasons. Furthermore, Mr Romaniuk conceded that the assessment was open to him.

47 As it was accepted by Mr Romaniuk that the decision of Ms Redmond was not independently challenged, there is no need to consider that decision further. It was common ground that if the assessment of Associate Professor O'Reilly was set aside as being invalid, Ms Redmond's decision would also have to be set aside but that if his assessment was not set aside, her decision would also stand.

48 Had the plaintiff made out any of his grounds of challenge, I would have been inclined to refuse relief on discretionary grounds: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at 122. The decision by the assessor was not only plainly open but appears to have been required by the findings as to mastication and deglutition arising from the plaintiff's history. However as the plaintiff has not established an error of law it is not necessary to say more about it.

Conclusion

49 For the foregoing reasons, I am not persuaded that any of the challenges made by the plaintiff to the assessment have been made out. The making of the assessment was open to the medical assessor. He is an independent medical expert in his field. It was made within his expert professional judgment. He took an oral history, he undertook an examination, he reviewed the documentation provided and he set out his findings and made an assessment. Sufficient reasons were provided for the assessment. No error of law has been established.

Orders

50 I make the following orders:

(1) Summons dismissed.

(2) Unless an application for a different order is made to my Associate in writing within seven (7) days, order the plaintiff to pay the defendants' costs.

**********

Decision last updated: 23 October 2014