Supreme Court New South Wales

• Medium Neutral Citation: Moran v Motor Accidents Authority of NSW [2013] NSWSC 1135
• Hearing dates: 31/07/2013
• Decision date: 21 August 2013
• Jurisdiction: Common Law
• Before: Harrison AsJ

Decision

The Court declares that:

(1) The decision of the Review Panel in matter number MAS 2011/02/2864 issued on 17 August 2012 is vitiated by error of law.

The Court makes an order:

(2) In the nature of certiorari removing into the Court the decision of the Review Panel issued on 17 August 2012 in matter number MAS 2011/02/2864 and quashing that decision.

The Court further orders that:

(3) Matter number MAS 2011/02/2864 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4) The second defendant is to pay the plaintiff's costs as agreed or assessed.

• Catchwords: ADMINISTRATIVE LAW - judicial review - cyclist knocked off bicycle by motor vehicle - closed head injury - assessment of no permanent impairment - use of Permanent Impairment Guidelines - whether guidelines followed in assessment - necessity of Review Panel to expose reasoning
• Legislation Cited: Motor Accidents Compensation Act 1999; Supreme Court Act 1970
• Cases Cited: Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881; Devic v Motor Accident Authority of NSW [2009] NSWSC 1289; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
• Texts Cited: Guides to the Evaluation of Permanent Impairment, 4th Ed (American Medical Association); Motor Accidents Authority Medical Assessment Guidelines; Motor Accidents Authority Permanent Impairment Guidelines
• Category: Principal judgment
• Parties: Daryl John Moran (Plaintiff); Motor Accidents Authority of NSW (First Defendant); QBE Insurance (Australia) Ltd (Second Defendant)
• Representation: Counsel: RE Quickenden (Plaintiff); K Rewell SC (Second Defendant); Solicitors: Fitzpatrick Solicitors (Plaintiff); Submitting Appearance (First Defendant); Moray & Agnew (Second Defendant)
• File Number(s): 2012/353480

Decision under appeal

• Date of Decision: 2012-08-17 00:00:00
• Before: Medical Review Panel
• File Number(s): MAS 2011/02/2864

Judgment

1 HER HONOUR: By summons filed 13 November 2012, the plaintiff seeks firstly, declarations that the Review Panel's Certificate dated 17 August 2012 in MAS matter number 2011/02/2864 discloses an error of law on the face of the record by failing to consider psychometric testing by Assessor Shores dated 21 February 2012, by not finding the plaintiff had an abnormal initial post injury Glasgow Coma Scale, by not finding the plaintiff sustained post traumatic amnesia and by separately determining that the motor vehicle accident did not cause the plaintiff brain damage; and secondly orders that the Certificate issued by the Review Panel dated 10 February 2012 in MAS matter number 2011/02/2864 be set aside; and that the matter be remitted to the Motor Accidents Medical Assessment Service for referral by the Proper Officer to a Review Panel pursuant to s 63 of the Motor Accidents Compensation Act 1999 for determination according to law.

2 The plaintiff is Daryl John Moran. The first defendant is the Motor Accidents Authority of NSW, who has filed a submitting appearance. The second defendant is QBE Insurance (Australia) Ltd ("QBE") as compulsory third party insurer of the vehicle driven by Vincenza Symon.

3 The plaintiff relied on the affidavit of Denis Fitzpatrick sworn 12 November 2012. The second defendant relied on the affidavit of Scott Graham affirmed 20 December 2012.

4 It is common ground that the Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970.

Background

5 On Tuesday, 29 June 2010, at about 4.35 pm, the plaintiff was injured when he came off his bicycle at the intersection of Unwin and Clarke Road, Waitara, New South Wales. Vincenza Symon was the driver of a motor vehicle the plaintiff alleges was negligent in causing his injuries. Prior to the accident, the plaintiff had consumed alcohol at Hornsby RSL Club.

6 On 25 August 2011, the Principal Claims Assessor granted a certificate of exemption enabling the plaintiff to commence proceedings in the District Court. On 5 March 2012, the plaintiff commenced proceedings in the District Court. The circumstances of the injuries sustained by the plaintiff are in issue. QBE denies that Vincenza Symon was negligent and alleges contributory negligence.

7 Under the Motor Accidents Compensation Act 1999, common law rights to damages for non-economic loss for injuries caused by motor accidents were significantly modified from that which previously applied under the common law. Section 131 prohibits the awarding of damages for non-economic loss unless the degree of permanent impairment of the injured person is greater than 10 per cent. The Act also requires that any dispute about whether the permanent impairment meets the s 131 threshold to be resolved by an assessment by a medical assessor under Part 3.4 of the Act (s 132(1)). The assessment of the Review Panel is significant as it means that the plaintiff is not entitled to damages for non economic loss.

8 Section 61(1) of the Act provides that: "The medical assessor or assessors to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment." The certificate is conclusive evidence as to the matters certified in any court proceedings or assessment by a claims assessor in respect of the relevant claim: s 61(2). The plaintiff has been assessed by two Approved Medical Specialists, one in relation to orthopaedic injuries, the other in relation to brain injuries.

9 The plaintiff listed his injuries on his application form as:

• Left knee - fracture
• Left knee - posterior cruciate ligament injuries
• Brain bleeding
• Brain - fluid in the right maxillary antrum
• Skin - surgical scarring
• Right elbow - lacerations
• Left quadriceps - wasting
• Skin - scarring (left knee, right elbow)

Psychological/depression, anxiety

10 On 16 February 2012, MAS Assessor Bye certified that the plaintiff suffered left knee - bilateral tibial plateau fracture and cruciate ligament laxity and scarring - left knee and right elbow as a result of the injuries sustained in the motor vehicle accident, which gave rise to a part physical permanent impairment of 10%. This assessment is not the subject of this judicial review.

11 The medical dispute in relation to the injuries of brain bleeding and fluid in the right maxillary antrum was referred to Associate Professor Kiernan, the Approved Medical Specialist. Associate Professor Kiernan had to determine whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident was greater than 10%. The Approved Medical Specialist recommended that an assessment be made by a neuropsychologist in accordance with paragraph [7] of the MAA's assessment of brain injuries protocol (B 121).

12 On 5 March 2012, Assessor Shores provided a modified neuropsychological assessment specifically to establish whether the claimant had suffered a significant head injury. Assessor Shores noted that from a CT scan report dated 29 June 2010, there was possibly a tiny extra-axial collection in the left superior parietal region as well as minor effacement of the underlying surface sulci. He conducted various psychological tests and continued.

"There is evidence of a significant impact to the head with verified abnormal initial post-injury Glasgow Coma Scale scores, a self-report of post traumatic amnesia lasting a number of hours and possible CT brain scan abnormalities.

On neuropsychological assessment he has clear evidence of verbal memory impairment. A complicating factor is that he has a pre-morbid history of reading and learning difficulties and this needs to be taken into account in the interpretation of his neuropsychological test results. There was no evidence of exaggeration or lack of effort during the assessment. Of note his mental processing speed and visual memory function is within normal limits. He reports significant impairment of emotional well being.

Based on the information provided, and my clinical examination and interview, I conclude that the injured person HAS suffered a significant head injury as defined by the MAA Impairment Assessment Guidelines 2007." (his emphasis)

13 The Motor Accidents Assessment Service has advised that Assessor Shores' assessment constituted psychometric testing.

14 On 10 February 2012, Assessor Professor Matthew Kiernan determined that the plaintiff sustained the following injuries in the motor accident giving rise to a permanent impairment of 10%: a brain bleeding, fluid in the right maxillary antrum. In his reasons Assessor Professor Kiernan stated:

"Following my assessment of Mr Moran, he was formally reviewed by Assessor Shores in relation to head injury. Assessor Shores has concluded that there is evidence of a significant impact to the head with verified abnormal initial Glasgow Coma Score, self report of post traumatic amnesia, in conjunction with possible CT brain scan abnormalities.

Assessor Shores indicates that neuropsychological assessment has identified evidence of verbal memory impairment. It is noted that there is pre-morbid history of reading and learning difficulties.

There was no evidence of exaggeration or lack of effort during the neuropsychological assessment. It was further noted that mental processing speed and visual memory function were well within normal limits. There appeared to be significant impairment of emotional well being.

In terms of the clinical dementia rating (CDR) score, it is noted in the report by Assessor Shores, that memory was graded 0.5. The remainder of Orientation; Judgment and Problem Solving; Community Affairs; Home and Hobbies; personal care all scored 0. Given that there are 3 scores less than the memory score, the overall CDR score would be rated as 0.

Assessment of Emotional and Behaviour Disturbances undertaken using Table 3 of the AMA 4 guides, it is noted that anxiety was scored as normal, while depression was rated at an extremely severe range. Overall it is estimated that there are moderate limitations that correlated with a 10% impairment of the whole person. This assessment also takes in the pre-morbid history of learning difficulties."

15 In essence, in making his determination, the Approved Medical Specialist relied on and accepted the assessment made by Assessor Shores.

16 On 8 March 2012, Assessor Ellen Wood certified the plaintiff had a combined whole person impairment of 19% reflecting Assessor Bye and Assessor Kiernan's findings thereby entitling the plaintiff to non-economic loss.

Review by the Review Panel

17 On or about 1 May 2012, QBE sought a review of Assessor Kiernan's certification pursuant to s 63 of the Motor Accidents Compensation Act.

18 On 19 June 2012, the Proper Officer determined there were grounds that Assessor Kiernan's medical assessment was incorrect in a material respect. The Proper Officer found error in Assessor Kiernan's reasons on the basis Assessor Kiernan did not form an independent view of the plaintiff's Clinical Dementia Rating (CDR) and Anxiety and Depression Rating but was reliant on Assessor Shore's findings.

19 It is the review of the determination of the Approved Medical Specialist Kiernan's determination that is the subject of this judicial review to this Court. The review provisions are set out in s 63. It reads

"(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) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based.

(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.

(7) The MAA Medical Guidelines may limit the time within which an application under this section may be made."

20 On 15 August 2012, the Review Panel, comprising two rehabilitation specialists, Dr Buckley and Dr Bowers, and a neurologist Dr Fearnside carried out their review and issued a Review Panel Certificate on 17 August 2012. The Review Panel found that the accident was the cause of the brain bleeding and assessed the plaintiff's whole person permanent impairment at 0%.

21 The Review Panel, in its reasons, stated that they had received and considered specified documentation. It is fair to say that there were references in this documentation to Assessor Shores' assessment.

22 Prior to carrying out the review, the Review Panel decided that it needed additional information to assist them because it was uncertain whether the plaintiff met the requirements for assessment of mental status or emotional/behavioural impairment in accordance with paragraph 5.9 of the Permanent Impairment Guidelines. It made arrangements for the DVD from the Radiology Department of Royal North Shore Hospital (CT scan brain 29/6/10) to be obtained. Once obtained, the Review Panel viewed this DVD.

23 The Review Panel in its written reasons continued:

"With respect to the brain, the Panel considered whether brain injury or episode of brain bleeding or fluid in the right maxillary antrum was in fact caused by trauma in the subject motor vehicle accident.

The Panel noted that whilst the initial Glasgow Coma Score was 14, it increased rapidly to 15 and remained 15 thereafter. The Panel noted that the Claimant had been using alcohol at the time of the accident.

The Panel noted that in Royal North Shore Hospital, no staff member thought that post-traumatic amnesia scoring was necessary.

...

The Panel reviewed DVD radiology images being CT scan of brain from Royal North Shore Hospital (29/6/10). The Panel noted that there was a possible very small left parietal extra axial collection. If present, this was felt not to be clinically significant and note likely to be related to any traumatic brain injury. There was therefore no evidence of brain bleeding. There was nothing else on the scans consistent with head injury. There was no contusion or haematoma of the scalp. There was no sulcal crowding. There was no asymmetry of the sulci. The grey white interface was normal. There was nothing to indicate external trauma. There was no traumatic subarachnoid haemorrhage.

The Panel concluded that there was no changes of the imaging tests, which were indicative of traumatic brain injury.

The Panel accepted that Mr Moran did sustain a head injury as evidenced by damage to the Claimant's helmet.

The Panel considered a document titled 'Respondent's Further Written Submissions On Review, by Mr Quickenden, dated 2 August 2012.

The Panel did note on Page 4 of Assessor Kiernan's Certificate dated 10/2/12 that the patient was not aware that he had suffered any head injury. He had never seen a neurologist. The Panel concluded that if the patient had sustained a traumatic brain injury of a degree whereby he lacked insight into his own deficits, arising from such brain injury, then there would be other evidence of a traumatic brain injury.

The Panel concluded that no such other evidence existed in accordance with Paragraph 5.9 of the MAA 2007 Guidelines. Whilst the initial Glasgow Coma Scale score recorded was 14, this was in the context of a high blood alcohol reading. Subsequent Glasgow Coma scale scores were normal. The treating team at hospital after the accident did not feel it was necessary to record post-traumatic amnesia scoring. The Panel concluded that any possible small lesion on the imaging tests was not consistent with a traumatic brain injury.

As such, the Panel concluded that the claimed injury that being 'brain bleeding -fluid in the right maxillary antrum' was not related to the subject accident."

24 The Review Panel accepted that the plaintiff suffered a closed head injury but concluded that the plaintiff did not suffer a brain injury as a result of the motor accident. Hence, the Review Panel revoked the Certificate of Professor Kiernan and assessed the permanent impairment at 0%.

25 On 21 August 2012, a new Combined Certificate issued, certifying a combined assessment (with the assessment of Dr Bye) of 10%, which is insufficient to entitle the plaintiff to damages for non-economic loss.

26 The Review Panel was obliged to apply the relevant provisions of the Motor Accidents Compensation Act, Motor Accidents Authority Medical Assessment Guidelines and Chapter 5 of the Motor Accidents Authority Permanent Impairment Guidelines.

Method of assessing degree of permanent impairment

27 Section 133 of the Motor Accidents Compensation Act sets out the method of assessing degree of permanent impairment. It reads:

"133 Method of assessing degree of impairment

(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2) The assessment of the degree of permanent impairment is to be made in accordance with:

(a) MAA Medical Guidelines issued for that purpose, or

(b) if there are no such guidelines in force-the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.

(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.

..."

The MAA Permanent Impairment Guidelines

28 The MAA Permanent Impairment Guidelines are issued under s 44(1)(d) of the Motor Accidents Compensation Act and are used for the assessment of permanent impairment of a person injured as a result of a motor vehicle accident. They apply in the review of an assessment made by a Review Panel under s 63 of the Act.

29 Chapters 1.1 and 1.2 of the MAA Guidelines read:

"1.1 These MAA Guidelines have been developed for the purpose of assessing the degree of permanent impairment arising from the injury caused by a motor accident, in accordance with section 133(2)(a) of the New South Wales Motor Accidents Compensation Act 1999.

1.2 The MAA Guidelines are based on the American Medical Association publication "Guides to the Evaluation of Permanent Impairment", 4th Edition, 3rd Printing (1995) (AMA 4 Guides). However, in these Guidelines there are some very significant departures from that document. Persons undertaking impairment assessments for the purposes of the NSW Motor Accidents Compensation Act 1999 must read these MAA Guidelines in conjunction with the AMA 4 Guides. These MAA Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA 4 Guides should be followed. In particular, Chapters 1 and 2 of the AMA 4 Guides should be read carefully in conjunction with this Chapter of the MAA Guidelines. Some of the examples in AMA 4 are not valid for the assessment of impairment under the Motor Accidents Compensation Act 1999. It may be helpful for assessors to mark their working copy of the AMA 4 Guides with the changes required by these MAA Guidelines."

30 The convention used in the Guidelines is that if the test is in bold type, it is a directive as to how the assessment should be performed (see Chapter 1.3). I shall adopt this convention in my judgment where referring to the Guidelines.

31 Not all injuries lead to an assessment of permanent impairment, for example, an uncomplicated healed sternal and rib fracture or an uncomplicated skull fracture do not. It is important to define the term "impairment" and distinguish it from the "disability" that may result. Impairment is defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means (Guidelines 1.10 and 1.11).

32 In Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881 at [83] Johnson J had this to say about the role of the Permanent Impairment Guidelines in relation to the Motor Accidents Compensation Act.

"[83] Although the limits of jurisdiction to be exercised by Medical Assessors are to be determined by the construction of the MAC Act itself, the Permanent Impairment Guidelines are not irrelevant to this task. Those Guidelines may be characterised as delegated legislation under s 44(1)(c) MAC Act. As delegated legislation, the Guidelines cannot affect the proper construction of the MAC Act, and they exist to indicate how relevant assessments are generally carried out: Allianz Australia Insurance Ltd v Crazzi (2006) 68 NSWLR 266 at 274 [17]; Paice v Hill [2009] NSWCA 156 at [2]-[3], [59]-[60]. With these qualifications in mind, I observe, nevertheless, that cl 1.4-1.6 of the Permanent Impairment Guidelines fortify the conclusion that the determination as to whether an injury is caused by the relevant motor accident lies within the medical assessment jurisdiction provided for in Pt 3.4 MAC Act."

33 Chapter 5 sets out the approach to the assessment of permanent neurological impairment. In the introduction, Guideline 5.1 states that Chapter 4 in the AMA 4 Guides (pp 139-152) provides guidelines on methods of assessing permanent impairment involving the central nervous system. Elements of the assessment of permanent impairment involving the peripheral nervous system can be found in relevant parts of the Upper Extremity, Lower Extremity and Spine sections.

34 I briefly digress to include the relevant part of Chapter 4 of the AMA Guidelines (referred to above). It is similar to Chapter 5 of the Permanent Impairment Guidelines:

"The forebrain or cerebrum is that portion of the nervous system located within the skull and above the tentorium of the posterior fossa of the skull. The most complex cerebral processes and integrative functions are only partially understood.

The more common categories of impairment resulting from disorders of the forebrain are as follows: (1) disturbances of consciousness and awareness; (2) aphasia or communication disturbances; (3) mental status and integrative functioning abnormalities; (4) emotional or behavioural disturbances; (5) special types of preoccupation or obsession; (6) major motor or sensory abnormalities; (7) movement disorders; (8) episodic neurological disorders; and (9) sleep and arousal disorders. Sleep and arousal disorders are considered in the Guides' chapter on the respiratory system (p 153).

A patient may have more than one of the types of cerebral dysfunction listed above. The most severe of the first five categories shown above should be used to represent the cerebral impairment. Any impairments in the last four categories may be combined with the most severe of the first five by means of the Combined Values Chart (p 322); the result would represent the estimate of total cerebral impairment."

35 Some of AMA 4 Guides (above) are picked up in Guideline 5.5 of the Permanent Impairment Guidelines for the central nervous system. Under the heading "The approach to assessment of permanent neurological impairment", Guideline 5.5 reads:

"5.5 The introduction to Chapter 4 (the Nervous System) of the AMA 4 Guides is ambiguous in its statement about combining nervous system impairments. The most severe impairment in the categories of (1) disturbances of consciousness and awareness (permanent and episodic), (2) aphasia or communication disorders, (3) mental status and integrative functioning abnormalities, or (4) emotional and behavioural disturbances only should be assessed. Select the highest rating from categories 1 to 4. This rating can then be combined with ratings from other body regions."

36 The relevant Guidelines for the central nervous system - cerebrum or forebrain are as follows.

"The central nervous system - cerebrum or forebrain

5.9 For an assessment of Mental Status Impairments and Emotional and Behavioural Impairments there should be:

(i) evidence of a significant impact to the head, or a cerebral insult, or that the motor accident involved a high velocity vehicle impact; and

(ii) one or more significant medically verified abnormalities such as an abnormal initial post-injury Glasgow Coma Scale score, or Post Traumatic Amnesia, or brain imaging abnormality.

5.10 The results of psychometric testing, if available, should be taken into consideration.

5.11 Assessment of disturbances of Mental Status and Integrative Functioning

The assessor should use Table 5.1 of these MAA Guidelines, the Clinical Dementia Rating (CDR) which combines cognitive skills and function.

5.12 When using the CDR the individual's cognitive function for each category should be scored independently. The maximum CDR score is 3. Memory is considered the primary category, the other categories are secondary. If at least three secondary categories are given the same numeric score as memory then the CDR = M. If three or more secondary categories are given a score greater or less than the memory score, CDR = the score of the majority of secondary categories unless three secondary categories are scored and two secondary categories are scored In this case CDR = M. Similarly if two secondary categories are greater than M, two are less than M and one is the same as M, CDR=M.

5.13 Corresponding impairment ratings for CDR scores are listed in Table 5.2 below.

5.14 Assessment of Emotional or Behavioural Disturbances is done using Table 3 of the AMA 4 Guides (p 142)."

37 The two specific Guidelines that apply and that are in dispute are Guidelines 5.9 and 5.10.

Alleged errors by the Review Panel

38 Counsel for the plaintiff submitted that the Review Panel erred in law (i) in failing to consider the neuropsychometric testing by Dr Shores; (ii) in applying an incorrect test in assessing permanent impairment, namely whether or not the plaintiff suffered "traumatic brain injury"; (iii) in failing to apply the correct tests, set out in Chapters 5.9 and 5.10 of the Impairment Guidelines; (iv) in wrongly applying the criteria of an abnormal Glasgow Coma Score and post-traumatic amnesia; and (v) in "effectively concluding" that the plaintiff suffered no head injury of any consequence when the evidence was "overwhelmingly to the contrary". According to counsel for the plaintiff, the Review Panel did not engage in an active intellectual process but rather focussed on the results of the CT scan.

39 The Review Panel accepted that the plaintiff did sustain a head injury as evidence by the damage to his helmet. Thus, the Review Panel determined that Guideline 5.9(i) was satisfied. However, it is whether or not the Review Panel properly took into account the matters set out in Guideline 5.9(ii) and whether it should have taken Guideline 5.10 into account that is in dispute.

40 As previously stated, Guideline 5.9(ii) reads that there should be one or more significant medically verified abnormalities such as abnormal initial post injury Glasgow Coma Score or post traumatic amnesia or brain imagining abnormality. By the use of the words "such as" in Guideline 5.9(ii) the matters to be taken into account are not confined to only the three criteria mentioned, namely abnormal post injury Glasgow Coma Score, or post traumatic amnesia or brain imagining abnormality. If, for example, a person was injured in a motor vehicle accident in a remote country location, a period of unconsciousness after the accident may be considered a significantly verified abnormality.

41 The Review Panel determined that none of the criteria outlined in Guideline 5.9(ii) were satisfied because none of the "significant medically verified abnormalities" referred to in Guideline 5.9(ii) existed. The Review Panel then concluded that the plaintiff had not suffered a traumatic brain injury caused by the subject motor accident.

42 QBE submitted that it follows from these conclusions of the Review Panel, that no assessment could be made of the consequences of an assessable brain injury, because the prerequisites for an assessment of mental status impairment were not met; the Review Panel concluded that there was no brain injury caused by the accident. QBE further submitted that the results of Dr Shores' neuropsychometric tests therefore became irrelevant to the assessment of permanent impairment, and detailed consideration of those results was not required to be included in the reasons of the Review Panel.

43 I agree with QBE that the Review Panel then considered carefully and separately, whether or not there was evidence of "one or more significant medically verified abnormalities" as required by 5.9(ii), and concluded that none of those abnormalities existed.

44 I accept that the Review Panel properly applied Guideline 5.9 and the plaintiff's contention that it did not is incorrect. This ground of review fails. However, the application of Guideline 5.9 is not always solely determinative as to whether or not the plaintiff has a permanent impairment to the cerebrum or forebrain.

The neuropsychometric testing by Dr Shores

45 The requirement in Guideline 5.10 of the Impairment Guidelines is that the results of psychometric testing, if available, "should be taken into consideration". Psychometric testing is a separate guideline because this testing is not done as a matter of routine and is not always available.

46 Counsel for the plaintiff submitted that the Review Panel was bound to consider Assessor Shore's psychometric testing and it would have been open to the Review Panel to disagree or diminish the impact of Assessor Shore's psychometric testing. Counsel further submitted that reasons would need to have been given, especially as the Review Panel did not examine the plaintiff as did Assessors Shores and Kiernan.

47 QBE submitted that there is nothing in the reasons of the Review Panel to indicate that the Review Panel failed to comply with this requirement and referred to the following. I agree that in its reasons the Review Panel stated that it had received and considered specific documentation. That documentation included:

• The Certificate, including reasons, issued by Professor Kiernan makes explicit reference to the results of neuropsychometric testing by Dr Shores. The results of neuropsychometric testing by Dr Shores featured prominently in the conclusions of Professor Kiernan, and must have been considered by the Review Panel.

• The application for review by a Review Panel lodged by QBE (MAS Form 5A) referred to the results of Dr Shores' neuropsychometric testing. The Review Panel must have taken into account QBE's criticisms of Dr Shores' report, as well as the results of neuropsychometric testing.

• The plaintiff's reply to the application for review (MAS Form 5R) included very detailed submissions as to the neuropsychometric testing, and other comments, of Dr Shores.

• In further support of Dr Shores' comments as to the significance of the plaintiff's slightly reduced Glasgow Coma Score at the accident scene, the plaintiff annexed to his reply an academic paper dealing with the effects of alcohol on the Glasgow Coma Score in head injured patients.

• The referral of this matter to the Review Panel for review by the Proper Officer makes reference to the report of Dr Shores.

48 While I accept that the Review Panel states that it considered this documentation it is fair to say that the Review Panel did not specifically refer to the neuropsychometric testing carried out by Assessor Shore in its reasons.

49 Overall, QBE submitted that it is inconceivable that the Review Panel failed to take Dr Shores' report into account, when that report formed a significant element of the Proper Officer's reasons for referring the matter to the Review Panel. Further, counsel for QBE submitted that because the results of neuropsychometric testing often vary between testers, they do not have the status of the criteria identified in Guideline 5(9)(ii).

50 Neuropsychometric testing is a tool used to diagnose mental status impairment. Approved Medical Specialist Professor Kiernan accepted Assessor Shores' opinion that there was evidence of a significant impact to the head with verified abnormal initial Glasgow Coma Score, self report of post traumatic amnesia, in conjunction with possible CT brain abnormalities. Assessor Shores also indicated that neuropsychological assessment had identified evidence of verbal memory impairment and this opinion was also accepted by Approved Medical Specialist Kiernan.

51 In NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 the Full Court of the Federal Court dealt with an obligation of the delegate in that case to "have regard" to particular information under certain sections of the Migration Act 1958 (Cth). The delegate was subject to a general requirement to give written reasons under s 66 of the Act why the appellant was not a refugee. The issue concerned a letter which identified the applicant as being an adherent to a group the subject of persecution.

52 The Full Court in NAJT said at [212]

"... [G]iven the potential importance of the letter and the delegate's fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved. A decision-maker cannot be said to 'have regard' to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152 at [58], a "decision-maker may be aware of information without paying any attention to it or giving it any consideration". In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration - had in Black CJ's phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in 'an active intellectual process' in relation to the letter - yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so."

53 This passage was referred to by Davies J in Devic v Motor Accident Authority of NSW [2009] NSWSC 1289 at [32].

54 The Review Panel came to different conclusions to those of Assessor Kiernan in relation to Guideline 5.9(ii) and gave reasons why it did so. It was entitled to come to different views in relation to the criteria referred to in Guideline 5.9(ii). However, the Review Panel did not specifically refer to the results of the neuropsychometric testing carried out by Assessor Shores at all. The results of that testing had been accepted and formed the basis of Assessor Kiernan's determination.

55 Guideline 5.10 obliged the Review Panel to take into account the results of neuropsychometric testing. Without some explanation it may be that the Appeal Panel simply overlooked the results of the testing. It is necessary for the Review Panel to expose its reasoning process as to why it disregarded the results of the neuropsychometric testing or alternatively explain why they were considered to be not relevant. If the Review Panel had given genuine consideration to the test results, it should have exposed its reasoning. It did not do so. The Review Panel, by not doing so has failed to take into account a relevant consideration. Hence, the decision of the Review Panel should be set aside.

56 Costs are discretionary. Costs usually follow the event. The second defendant is to pay the plaintiff's costs as agreed or assessed.

The Court declares that:

(1) The decision of the Review Panel in matter number MAS 2011/02/2864 issued on 17 August 2012 is vitiated by error of law.

The Court makes an order:

(2) In the nature of certiorari removing into the Court the decision of the Review Panel issued on 17 August 2012 in matter number MAS 2011/02/2864 and quashing that decision.

The Court further orders that:

(3) Matter number MAS 2011/02/2864 be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4) The second defendant is to pay the plaintiff's costs as agreed or assessed.

**********

Decision last updated: 22 August 2013