Supreme Court New South Wales

• Medium Neutral Citation: Rutland v Allianz Australia Insurance Ltd [2014] NSWSC 1583
• Hearing dates: 31/10/2014
• Decision date: 14 November 2014
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1) Order that the Review Panel Certificate and Reasons dated 13 March 2014 issued by the third defendant in matter 2013/02/1489 be set aside.

(2) Order that the matter be referred to the second defendant for the appointment of a new Review Panel to undertake an assessment of the plaintiff in accordance with law.

(3) First defendant to pay the plaintiff's costs.

• Catchwords: ADMINISTRATIVE LAW - judicial review - Medical Assessment Service - review panel - certificate of reasons - psychiatric injury whole person impairment of ten per cent - ADMINISTRATIVE LAW - judicial review - statutory function - review panel failed to discharge its statutory function because it failed to assess all matters afresh in assessing whole person impairment, whether - Motor Accidents Compensation Act 1999, s 36 - review to be conducted by way of a new assessment of all the matters with which the medical assessment is concerned - medical assessment guidelines - guidelines for the assessment of the degree of permanent impairment - review panel did not make any fresh assessment, whether - review panel relied on original assessor, whether - obligation of review panel - jurisdictional error - error on the face of the record - ADMINISTRATIVE LAW - judicial review - procedural fairness - failure to accord procedural fairness, whether - review panel to determine afresh the medical assessment - content of procedural fairness - confront applicant with inconsistencies - opportunity to respond
• Legislation Cited: Motor Accidents Compensation Act 1999; Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007; Supreme Court Act 1970
• Cases Cited: Frost v Kourouche [2014] NSWCA 39; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; McKee v Allianz Australian Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43
• Category: Principal judgment
• Parties: Kelly Rutland (P); Allianz Australia Insurance Ltd (D1); Motor Accidents Authority of NSW (D2); The Medical Review Panel (D3)
• Representation: Counsel: E G Romanuik SC / T Hickey (P); J Gumbert (D1); Submitting Appearance (D2); Submitting Appearance (D3); Solicitors: Commins Hendriks (P); Sparke Helmore (D1)
• File Number(s): 2014/176677
• Publication restriction: N/A

Judgment

1 By an Amended Summons filed on 18 July 2014, the plaintiff, Kelly Rutland, brought proceedings against Allianz Australia Insurance Ltd ("Allianz"), the Motor Accidents Authority of NSW ("MAA") and three members of the Medical Review Panel ("the Review Panel"). The second and third defendants filed submitting appearances and took no active part in the proceedings.

2 The Amended Summons sought the following relief:

"1. A declaration pursuant to s.69 of the Supreme Court Act 1970 that the Certificate and Statement of Reasons issued by the [MAA] and constituted by the [Review Panel] on 13 March 2014 as void and of no effect.

2. Such further or other order as this Honourable Court deems necessary to give effect to the Plaintiff's claim in the nature of judicial review.

3. Costs." (sic)

3 In the Amended Summons, the plaintiff set out the grounds upon which the relief sought was justified. The grounds can be summarised as follows:

(a) a failure by the Review Panel to discharge its statutory function pursuant to s 63 of the Motor Accidents Compensation Act 1999 ("MAC Act") because it failed to assess all matters afresh in respect of the plaintiff's whole person impairment;

(b) a failure to accord the plaintiff procedural fairness because the Review Panel failed in coming to a number of conclusions and inferences adverse to the plaintiff, without proper identification of the evidence relied upon, and without giving the plaintiff an opportunity to respond; and

(c) inadequacy of reasons.

Factual Background

4 On 24 April 2009, the plaintiff's younger sister was killed in a motorcycle accident. The plaintiff was telephoned by her mother and immediately felt shock at the content and nature of the telephone call, and the news which was conveyed to her by her partner, namely that her younger sister Rebecca had been involved in a motor vehicle accident and had been killed.

5 She drove to the accident site and then to her parent's home. She became extremely distressed. She went to the hospital to identify her sister because her parents were unable so to do. On the way home from identifying her sister, she was very distressed and became physically ill.

6 She took about six weeks off from work immediately following the news of her sister's death. When she returned to work she had difficulty in concentrating and as a result her duties were modified.

7 On 17 September 2010, the plaintiff's solicitors served a personal injury claim form on the defendant, Allianz.

8 On 6 July 2012, the MAA issued a Certificate under s 92(1)(a) of the MAC Act, exempting the claim from assessment.

9 On 3 September 2012, the plaintiff commenced proceedings in the District Court of NSW, claiming damages for psychiatric injury arising out of the nervous shock which she sustained.

10 On 16 November 2012, a Defence to the claim was filed and served by Allianz. As well, a Notice of Motion seeking dismissal of the proceedings was filed and served.

11 On 27 November 2012, by the agreement of the parties, the District Court made orders that the Notice of Motion be dismissed with no order as to costs.

12 On 10 May 2013, the plaintiff lodged an application for assessment of a permanent impairment. The application claimed impairment due to psychological injury and provided with the claim form four medical reports, one from Dr Aamer, one from Dr R Gertler - a specialist psychiatrist, and two from Professor Alexander McFarlane - a psychiatrist who specialises in post-traumatic stress disorder and psychological injury arising from traumatic events.

13 On 13 June 2013, Allianz lodged a reply to the plaintiff's application for assessment of permanent impairment. With that reply, Allianz lodged some clinical records relating to the plaintiff, a report of a specialist psychiatrist - Dr Robert Lewin - and a set of submissions.

14 On 2 July 2013, the Proper Officer of the Medical Assessment Service of the MAA determined that the matter ought proceed to a medical assessment.

15 On 18 July 2013, the plaintiff was notified that an appointment had been made for her to see a medical assessor on 10 September 2013. It is clear from the letter of referral by the Proper Officer of the MAA to the Assessor, that the Assessor was being asked to assess the extent of the plaintiff's whole person impairment as a consequence of her psychological injuries, namely, post-traumatic stress disorder, major depressive disorder, adjustment disorder with depressed mood, nervous shock, increased irritability, difficulty with concentration, social withdrawal, weight gain, sleep disturbance and nightmare of sister's death, loss of libido and depression-remitted bereavement.

16 It was necessary for the appointment to be rescheduled and it was ultimately undertaken on 8 October 2013.

17 On 29 October 2013, Dr Alan Jager, the appointed medical assessor, issued a Certificate under Pt 3.4 of the MAC Act.

18 Dr Jager determined that the plaintiff's whole person impairment was fourteen per cent as a consequence of a major depressive disorder and chronic post-traumatic stress disorder.

19 On 11 December 2013, Allianz applied for a review of the medical assessment undertaken by Dr Jager. With its application for review, Allianz provided a set of submissions to the Proper Officer. It did not supply any additional factual material with respect to the plaintiff. The submissions of Allianz contended that there were three errors in the Assessor's certificate, and sought a review.

20 On 22 January 2014, the plaintiff provided a reply to that application for a review to the Proper Officer of the MAA. It annexed submissions to that reply.

21 On 6 February 2014, the Proper Officer of the MAA determined that the application for review made by Allianz should be accepted. Accordingly, she referred the matter to a Medical Review Panel. The Proper Officer provided a Statement of Reasons for her decision.

22 On 13 February 2014, the MAA wrote a letter to the plaintiff's solicitors notifying her of the convening of a Review Panel, and the names of the members of it. The plaintiff was informed that an initial teleconference had been scheduled for Thursday 6 March 2014, involving the Panel. The letter informed the plaintiff that at that teleconference the Panel might reach a decision; decide that an examination of the claimant was required in order to make a decision; decide that additional information was required in order to make a decision and/or decide that a further conference of the Panel was required.

23 The letter then went on to include this paragraph:

"If you object to the Review Panel being conducted without an examination of the claimant, please advise immediately in writing, providing reasons why you believe an examination is required. If no objections are received by the initial conference date shown above, the Panel will assume that there is no objection to the review being conducted on the documentary material provided, should they consider this to be possible".

24 The plaintiff, through her lawyers, did not make any submission in response to the contents of this letter.

25 The Review Panel issued its Certificate on 14 March 2014. The Review Panel determined, pursuant to s 63(4) of the MAC Act, that the original certificate of Dr Jager dated 29 October 2013, ought be revoked and that it should issue a new certificate which certified that the level of whole person impairment for the plaintiff pursuant to the conditions of Major Depressive Disorder and Chronic Post-Traumatic Stress Disorder was not greater than ten per cent. The reasons of the Review Panel attached to the Certificate indicate that it agreed that the extent of the plaintiff's whole person impairment was six per cent.

26 On 20 March 2014, the MAA notified the plaintiff of the decision of the Review Panel.

27 It is with respect to this certificate and the Review Panel's reasons that these proceedings have been brought. It is appropriate to set out in some detail the contents of the Review Panel's Certificate and Reasons.

Review Panel Certificate and Reasons

28 It is convenient to highlight parts of the reasons of the Review Panel to which specific attention was drawn by the parties in the course of submissions.

29 Under Part 3 of the Review Panel reasons, the following statements appear:

"Matters Considered and Decided by the Panel

The Review Panel considered afresh all aspects of the assessment under review.

A. Evidence Considered

The Panel considered all of the available evidence and decided that a re-examination of the claimant was not necessary because the three issues raised by the applicant could be addressed on the documents available and that no other issues were raised by the respondent, nor did the Panel identify any other issues which needed to be addressed."

30 Further, under the heading "Panel Deliberations", the reasons included the following statements:

"There was no dispute by the parties that the diagnoses made by Assessor Jager were correct and this was the view of the Panel.

...

There was no dispute that the claimant's psychiatric conditions were caused by the accident and this was the view of the Panel for the reasons given in Assessor Jager's Certificate. The applicant submitted that the claimant's changed relationship with her partner was not due to psychological symptoms suffered as a result of the accident but rather because the claimant's husband had commenced new employment in Canberra that required him to live away from home during the week. ...

...

There is no dispute that the claimant was suffering a permanent impairment. This was the view of the Panel for the reasons given by Assessor Jager in his Certificate. The disputes in this matter were whether Assessor Jager had incorrectly rated the claimant in the category of Social Functioning and in the category of Concentration, Persistence and Pace. The applicant also submitted that there had been an error in the assessment of the claimant's pre-existing impairment. There was no dispute about the ratings of other categories of permanent impairment with which the Panel agreed largely for the reasons given by Assessor Jager and for the reasons given in the tables in section 4.

...

The Panel accepted the respondent's submissions that the changed relationship with her partner occurred prior to him commencing employment in Canberra in July 2011 and noted that the respondent relied on Dr Gertler's report dated 22.11.2010 where he noted that her relationship with her partner had become strained. ... Even though Assessor Jager recorded the claimant as saying that she had "withdrawn from everyone including her family", the evidence is that she was still engaged with and caring for her children and that while her relationship with her partner was strained, there were no indicators consistent with the descriptors of Class 3 Impairment. Therefore the Panel concluded the claimant's impairment in this area was Class 2.

...

It was not disputed that the claimant had continued to work in paid employment as a Technical Teacher Armament Technician and was working in a full-time capacity until August 2013 when, following a restructure, she worked 19 hours per week. In order to maintain this employment the Panel considered that it would not be possible to have a Class 3 impairment of Concentration, Persistence and Pace described as being one where the claimant would be "unable to read more than newspaper articles and would find it difficult to follow complex instructions, make significant repairs to a motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting".

In order to prepare for and teach such a course the claimant would at least have to have the ability to focus on intellectually demanding tasks up to thirty minutes, which is an illustrative example of Class 2 impairment.

The Panel concluded that the correct rating for Concentration, Persistence and Pace was Class 2 because the claimant was working a position which required considerable concentration, persistence and pace and there was an absence of indicators of Class 3 impairment."

31 The plaintiff also pointed to further parts of the reasons, which although there was no direct complaint about them in this Court, were submitted to be demonstrative of one of the errors to which I have earlier made reference. It is convenient to record those parts.

32 The Review Panel had to consider whether there was any pre-existing impairment of a psychological kind which affected the plaintiff prior to sustaining the nervous shock by reason of the motor vehicle accident. If it did not do so, it could not, of course, have determined the appropriate causation question of what whole person impairment was attributable to the motor vehicle accident. The Assessor had found that there was no pre-existing impairment. The extract relied upon by the plaintiff included the following:

"The Panel concluded that Assessor Jager was correct in assessing the claimant's rating for Adaptation as Class 2 as she was returning to the same work position but was not able to work with a specific person. The applicant does not dispute the ratings for the other five classes and there is no objective evidence of impairment in any of these categories, so the Review Panel concluded there were no grounds for disturbing Assessor Jager's assessment of pre-existing impairment."

Legislation

33 As has earlier been indicated, medical assessments are dealt with by Pt 3.4 of the MAC Act. Certificates given by either the Medical Assessor or the Review Panel are significant, because any such certificate is conclusive evidence as to the matters certified in it in any court proceedings: see s 61(2) MAC Act.

34 The provisions for review are set out in s 63. They are to the following effect:

"63 Review of medical assessment by review panel

(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

(2A) ....

(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.

(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

(5) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review.

(6) Section 61 applies to any new certificate or new combined certificate issued under this section. ..."

35 Subsection 3A of s 63 was introduced in 2007 and commenced with effect from 1 October 2008, by reason of the proclamation of the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007.

36 The provisions of s 44 of the MAC Act were drawn to the Court's attention because those provisions authorised the MAA to issue guidelines, known as the "MAA Medical Guidelines" with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident, and also the procedures for the referral of disputes for assessment or review of assessments, and for assessment and review of assessments under Pt 3.4: see s 44(1)(c)(d) of the MAC Act.

37 Section 44(4) of the MAC Act provides that the MAA Medical Guidelines ("the Guidelines") are to be published in the Government Gazette and to take effect on the day of publication.

38 The Court's attention was drawn to two sets of relevant guidelines.

39 The first were the Medical Assessment Guidelines. Chapter 16 of these Guidelines deals with reviews of medical assessments. Initially, the Guidelines deal with how an application for review under s 63 ought proceed.

40 Guideline 16.16 provides that if the Proper Officer of the MAA is satisfied that further information or documentation is required or is likely to assist in the review which has been determined should take place, then the Proper Officer may request that additional information or documentation be provided from either of the parties, and may, after the specified time period has passed, proceed with the processing of the application. Curiously, Guideline 16.16.3 provides that the Proper Officer may:

"admit into evidence any document despite non-compliance with any time limit in relation to that document or service of it". (emphasis added)

41 This form of expression is curious because a review panel (or indeed a single medical assessor) does not deal with anything which might properly be regarded as "evidence". However, as the Proper Officer did not make any request for any additional information or documentation in this case, the curiosity of that expression can be put to one side.

42 Guideline 16.19 provides that each member of the Review Panel will be provided with the following documents:

"16.19.1 all the material that was before the original Assessor;

16.19.2 all certificates issued by the original Assessor;

16.19.3 the review application and reply, and any supporting submissions or documents;

16.19.4 any other applications in reply and/or MAS certificates in relation to the same claimant, not limited to the same matter, after the parties have been provided with copies of these documents;

16.19.5 the determination of the Proper Officer under clause 16.15; and

16.19.6 any additional information or documentation under clause 16.16."

43 The procedure of the Review Panel assessment is set out in cl 16.21 of the Guidelines. It is in the following form:

"16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to:

16.21.1 consider afresh all aspects of the assessment under review;

16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur;

16.21.3 determine whether additional information is required in order to make a decision;

16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked;

16.21.5 if revoked, determine what new certificates are to be issued;

16.21.6 where the original assessment certificate was issued under clause 13.7 and included in a combined certificate under clause 13.9, determine whether the panel is to issue a new combined certificate, combining the result of the review with the results of the other assessments included in that combined certificate;

16.21.7 determine which member of the panel will sign any certificates on behalf of the panel;

16.21.8 determine whether a further meeting of the panel is required; and

16.21.9 advise the Proper Officer of any determinations under this clause."

44 In addition to the Guidelines, there are also guidelines issued by the MAA with respect to the assessment of the degree of permanent impairment arising from injury. These guidelines are equally applicable to the original assessment and any assessment carried out by a review panel. Clause 1.20 is in the following form:

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

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

all available and 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 available 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 percentage impairment; and

(iii) The preparation of a report using the methods specified in these MAA Guidelines which determines the percentage 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."

45 Assessment of permanent impairment due to psychiatric injury is dealt with in Chapter 7 of those Guidelines.

46 That chapter draws attention to the Psychiatric Impairment Rating Scale ("PIRS") which has been developed and which is set out in that chapter. It is that scale and the rating within it which led to the difference between the original Assessor's certificate and that of the Review Panel.

47 In describing the approach to be taken to the assessment of mental and behavioural disorders, Chapter 7 of the Guidelines, in clause 7.13, draws attention to the fact that the impairment must be attributable to a recognised psychiatric diagnosis. Clause 7.15 also draws attention to the fact that PIRS is not to be used to measure impairment due to pain or somatoform disorders.

48 Clause 7.17 is in this form:

"The scale is to be used by a properly trained assessor. Clinical judgment will be the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis, and clinical experience." (sic)

49 The convention applying to these Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed: see cl 1.3.

50 Clause 7.19 notes that the behavioural consequences of psychiatric disorder are to be assessed according to six areas of function. Impairment in each area of function is rated using class descriptors. The clause notes that the classes in each area of function are described by way of common examples but, importantly, that those common examples are "... intended to be illustrative rather than literal criteria".

51 Clause 7.20 concludes with this statement:

"The assessor should obtain a history of the injured person's pre-accident lifestyle, activities and habits and then assess the extent to which these have changed as a result of the psychiatric injury. The assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors".

52 Within each area of function, a table records the levels described variously as Class 1 through to Class 5, and gives illustrative examples. What is to be noted in respect of each table referrable to an area of function is that Class 1 records that there is no deficit or only a minor deficit which can be attributable to normal variation in the general population, Class 2 records mild impairment, Class 3 records moderate impairment, Class 4 records severe impairment and Class 5 records total impairment.

53 Accordingly, both the assessment undertaken by the primary Assessor, Dr Jager, and the assessment of the Review Panel had to be conducted having regard to these Guidelines and requirements.

Relevant Legal Principles

54 In McKee v Allianz Australian Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609, the Court of Appeal considered the provisions of s 63 as they were then applicable to the matter under consideration. Those provisions were identical with those applicable here, with the exception that subsection 3A formed no part of the section considered by the Court.

55 Nevertheless, the case remains an important and relevant authority.

56 The issue principally determined by the Court in McKee was whether when a review panel undertook its assessment, it was doing so only with respect to the grounds contended for in the review application as being erroneous, or whether it was a more general assessment.

57 Allsop P said at [6]:

"6. Whilst there may be sensible policy reasons for limiting the review ... I do not extract from the text and structure of Part 3.4, or from s 63, any such limitation of power. ... Guidelines issued under the MAC Act, s 44(1)(d) might deal with procedures for the referral of review of assessments or the procedure for assessment, but any such guidelines would not help in understanding the content for the MAC Act, by reference to which the limits of the power of the review panel are to be identified."

58 Allsop P agreed with the judgment of Giles JA. Giles JA said at [23]:

"23. The plain purpose of s 63 is that the collegiate professional expertise of three or more medical assessors should be applied in the review, resulting in an assessment which is more likely to be correct and to be accepted by the parties to the medical dispute."

59 Giles JA identified at [27] that a review panel receives a reference to it of the medical assessment as a whole and that their task is not dictated to by the reason for that referral. At [28] his Honour said:

"28. The review panel is in my opinion not limited to the grounds for incorrectness in a material respect particularised in the application for referral of a medical assessment. There are sound reasons why this construction of s 63 should be preferred to one by which the review panel cannot go beyond those grounds."

60 At [30], his Honour said:

"30. Perhaps of greater significance is the nature of the review panel. The members of a review panel are medical practitioners or other suitably qualified persons. The review panel is to be convened by the proper officer ... underlining that it is to apply the expertise of medical professionals to its review of a medical assessment initially made by a medical professional. The review panel must confirm the certificate of assessment or issue a new certificate replacing it, and as I have earlier explained the new certificate must deal with the matter or matters referred for assessment as a whole and express the appeal panel's assessment of those matters. It would not be a sensible operation of Pt 3.4, and would be at odds with use of the expertise of the medical professionals if extra-curial resolution of medical disputes, that the review panel could not go beyond the particularised incorrectness in a material respect. In particular, it would be wholly inappropriate if the review panel had to confirm a certificate or issue a new certificate despite the professional opinion of its members that the certificate was incorrect in a different material respect."

61 The addition to s 63 of subsection 3A in the following terms:

"The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned"

puts beyond doubt any uncertainty which existed prior to the decision in McKee, and confirms the majority view of Allsop P and Giles JA in that decision.

62 It cannot be doubted that the statute and legal principles require the Review Panel to undertake its assessment of the whole person impairment from the perspective of three medical assessors. It does not sit, and counsel for Allianz accepted that this was so, as a panel which considers only error, and the correction of error, in the certificate and reasons of the medical assessor.

63 Insofar as the Panel is required to give procedural fairness, its obligation so to do is discussed by the Court of Appeal in Frost v Kourouche [2014] NSWCA 39. At [3], Leeming JA, with whom Beazley P and Basten JA agreed, identified the central issue before the Court as being:

"What is the content of the obligation to accord procedural fairness owed by a review panel reviewing a medical assessment under the Motor Accidents Compensation Act 1999 (NSW)?"

64 Before coming to consider the direct answer to that question, Leeming JA, in describing the process, observed the following with respect to the task confronting the Review Panel, at [9]. He said:

"9. Section 63(1) permitted [the insurer] to apply to the proper officer of the Authority to refer an assessment to a review panel. Although styled a 'review', in truth the panel is determining afresh the medical assessment matters referred to it. That is confirmed by s 63(3A) which provides that the review is not limited to that aspect of the assessment alleged to be incorrect, and is to be 'by way of a new assessment' of all the matters."

65 His Honour noted that the decision of the Proper Officer to refer the matter to a review panel, because the Proper Officer was satisfied that there "... is reasonable cause to suspect that the medical assessment was incorrect in a material respect ..." constituted a gateway or condition precedent to the carrying out of the further medical assessment by the Review Panel.

66 At [32] and [35], his Honour noted the content of the obligation to accord procedural fairness. He said:

"32 It was also common ground that the content of the obligation upon the panel to accord procedural fairness extended to confronting the applicant with inconsistencies and providing him or her with an opportunity to respond. That is consistent with what has often been held, in a wide range of contexts, including Kioa v West (1985) 159 CLR 550 at 587 ('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'). It is reflected in cl 1.43 of the "Guidelines for the assessment of the degree of permanent impairment" dated 1 October 2007, which (like the Medical Assessment Guidelines) bound the members of the panel by reason of s 65(1) of the Act.

...

35 There is a well-established line of authority for a complementary proposition to that in Kioa referred to above to the effect that critical facts need to be drawn to the claimant's attention. The complementary proposition is that it is not necessary, in order to discharge the obligation to accord procedural fairness, to go further."

67 His Honour drew attention to two decisions of the High Court. The first, Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594, was cited for the remarks at [9] of French CJ and Kiefel J who said:

"Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory powers. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision."

68 His Honour also drew attention to the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] where the Chief Justice said:

"Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."

Plaintiff's Submissions

69 The first and principal ground upon which the plaintiff relied to obtain the relief sought, was that the Review Panel had undertaken its exercise without regard to the requirements of the legislation because it had not made any fresh assessment of the plaintiff at all, but had in fact relied on the assessment made by the original Assessor, Dr Jager, and had only addressed the errors of which complaint had been made by Allianz in its application to the Proper Officer for a review.

70 That the obligation of the Review Panel is to conduct a fresh assessment is clear. I have referred to the legislation and authorities which require that.

71 The plaintiff points to the extracts of the Reasons, which I have set out above, and in particular that the structure and methodology followed by the Review Panel as demonstrating that it addressed only the three errors nominated by the insurer in its application for a review. In all other respects, it simply adopted the report of Assessor Jager.

72 In considering this submission, it is necessary to keep in mind that in reviewing the Statement of Reasons of the Review Panel, the Court is not dealing with a legal judgment. It must consider what the standard required is of the written reasons dictated by the statute. In my view, the following statement by the High Court of Australia in Wingfoot Aust Partners Pty Ltd v Kocak [2013] HCA 43 at [55] is apt to describe the obligation of the Review Panel in these circumstances:

"The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law and the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."

73 Counsel for Allianz submitted that the reasons of the Review Panel were adequate and displayed no error on their face. Counsel pointed out that the mere adoption by a review panel of an assessment below, or the mere agreement with the reasons expressed by the single assessor, does not of itself disclose an error in process or procedure.

74 That may be so. However, what is required of the Review Panel by the Act is that it conducts its own assessment of the extent of whole person impairment of the claimant. In order so to do, in accordance with the Guidelines, it must engage in an exercise of clinical judgment. It does so on the basis of the claimant's history as contained in all of the documents with which the Review Panel is provided. These must include the documents given to the primary assessor, and may include additional documents if the Proper Officer so determines. It is also provided with the primary assessor's report. This is a report which also contains history and the results of a clinical examination, and also contains the expert opinion of a properly qualified specialist who has himself or herself, engaged in a full assessment, exercised their clinical judgment and come to a determination of whole person impairment.

75 Based upon that material, which consists entirely of factual material or opinions of experts, the Review Panel must determine whether a re-examination of a claimant is appropriate.

76 The plaintiff submits that a re-examination is in all practical senses, essential in all cases of review. The terms in which Guideline 1.20 are expressed, see [44] above, would support this submission. I do not have to determine that question on such a broad basis. There may be circumstances, at least that one can envisage, where an assessment of whole person impairment would not necessarily be advanced by an examination or consultation with a claimant. The probabilities are that such circumstances will be rare or unusual. But again, I do not have to determine that question.

77 Here, the Review Panel had to determine whether the plaintiff's psychological injuries gave rise to permanent impairment and if so, to what extent. It had to do so as at the date of its assessment. It was not determining the extent of whole person impairment, if any, at some earlier date, but rather as at the date of its assessment. In circumstances where the PIRS, to which it was necessary to have regard in accordance with the Guidelines, related to impairment in the identified areas of function, it was not possible, in the circumstances here, for the Review Panel to undertake an assessment and form its opinion without such a consultation and examination.

78 This is not a separate ground for setting aside the Certificate. However, it does assist in understanding the approach which the Review Panel took. It decided it did not need to examine the plaintiff. The statement by the Review Panel under the heading "A. Evidence Considered", which I have set out at [29] above, makes it plain that in determining not to re-examine the plaintiff, the Review Panel did so on the basis that its task was limited to reviewing error on the part of the primary assessor. This statement helps to inform the determination of how the Review Panel approached the whole of its task.

79 Its report in substance and effect identified the three errors complained of by Allianz in its submissions to the Proper Officer, considered those areas of complaint upon the basis of the material which it had, which by that stage was at least six months old, made no further enquiries as to whether the position of the claimant had changed and made no further enquiries as to what the claimant's present employment circumstances were, but simply made a determination on the three issues "on the papers".

80 In my view, the Statement of Reasons of this Review Panel demonstrates clear error as to the nature of the exercise in which they were engaged.

81 I am conscious, as Giles JA pointed out in McKee at [38], a passage upon which Allianz did not rely, that the consideration by the Review Panel of some aspects of the matter referred to them might be brief, and I am also conscious that in principle there would be no error if, having conducted its assessment, it may arrive at a similar assessment for the same or similar reasons as expressed by the primary assessor. If so, the Review Panel should be able to announce its conclusion and to indicate that it so concluded for the same reasons as those expressed by the primary assessor. That would not be a failure of their obligation to conduct an assessment afresh, but would rather be indicative of the exercise of their professional judgment.

82 However, as the legislation requires, they must conduct the assessment as a whole and cannot limit the conduct of their assessment to the matters raised in the insurer's submissions to the Proper Officer. Notwithstanding what seems to be a routine incantation at the start of the Certificate and reasons that they were making an "assessment afresh", in substance, that is what the Review Panel did here.

83 In my view, they fell into error. The error is jurisdictional and is an error on the face of the record. The plaintiff is entitled to relief on this ground.

84 The plaintiff also submitted that the Review Panel had failed to accord procedural fairness to her because it determined that it would not accept what Assessor Jager had found to be an accurate history from the claimant, and would prefer its own inferences of fact to the history recounted by the plaintiff.

85 In particular, the plaintiff's submissions draw attention to the material which I have set out above at [70]. There, so it is submitted, the Review Panel reached a conclusion opposite to that reached by Assessor Jager, and in a way which substantially reflected the insurer's submissions to the Proper Officer. The insurer had submitted that:

"... the claimant would not have been able to continue in her employment given the nature of her role if she suffered from a moderate impairment in the category of Concentration, Persistence and Pace. ... The insurer notes that whilst a reduction in concentration is concluded by Assessor Jager, these symptoms were not reported by the claimant during the assessment."

86 The reasons of the Review Panel make it plain that it substantially accepted this submission and implied that the teaching for the course upon which the plaintiff was engaged, would have required the ability to focus on intellectually demanding tasks for up to 30 minutes. The difficulty with this conclusion, which differs from that reached by Assessor Jager, is that there was no factual basis upon which the Review Panel could have been informed as to the work duties which the plaintiff was actually undertaking, at the time of its own assessment. They could not be informed of those duties because they received no additional documents and dispensed with an examination of the plaintiff at which they could have enquired about these matters.

87 There is a significant difference between a job description and the duties a person is actually engaged upon. This paragraph also indicates that the Review Panel reached a conclusion not based on any fact identified by any party or any history identified by any party, but rather one which they had assumed to themselves.

88 I have addressed above the standard of procedural fairness which is required.

89 Having regard to the significance of this particular element in the Review Panel's conclusions, to discharge that obligation of procedural fairness, the Review Panel had to cause enquiries to be made of the claimant as to what her duties actually involved. Those enquiries could have been made by the Review Panel conducting an examination at which the issue was discussed with the claimant. It is possible that they may have instituted such enquiries via the Proper Officer to the claimant. The difficulty is they followed neither path.

90 In my view the Statement of Reasons includes a failure to accord procedural fairness to the claimant in a way which was of real and practical effect.

Adequacy of Reasons

91 The third submission was that the reasons were inadequate. Considering the adequacy or inadequacy of the reasons by themselves is a task which is not logically possible where the Review Panel has engaged in setting out its reasons by addressing the wrong legal question. There is no utility to be gained by considering this point.

Conclusion

92 I have concluded for the reasons which I have described, that the Review Panel erred in law. It is appropriate that orders be made granting the relevant relief.

Orders

93 I make the following orders:

(1) Order that the Review Panel Certificate dated 13 March 2014 issued by the third defendant in matter 2013/02/1489 be set aside.

(2) Order that the matter be referred to the second defendant for the appointment of a new Review Panel to undertake an assessment of the plaintiff in accordance with law.

(3) First defendant to pay the plaintiff's costs.

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Amendments

19 November 2014 - Renumbering
Amended paragraphs: 93

Decision last updated: 19 November 2014