Supreme Court New South Wales Medium Neutral Citation: Stanizzo v AAI Limited trading as GIO [2021] NSWSC 1077 Hearing dates: 25 August 2021 Decision date: 26 August 2021 Jurisdiction: Common Law Before: Adamson J Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2), extend the time within which the plaintiff may file the summons to 16 July 2021. (2) Set aside the decision of the second defendant made on 20 April 2021. (3) Set aside the decision of the third defendant made on 8 September 2020. (4) Remit the matter to the second defendant for referral for assessment by a medical assessor other than the third defendant. (5) Make no order as to costs. Catchwords: ADMINISTRATIVE LAW — Judicial review — Decision of Medical Assessor and delegate of the President of the Personal Injury Commission of NSW — Whether Medical assessor considered and addressed claimant's submissions and provided sufficient reasons — Submission regarding contribution of accident to condition of claimant and ongoing symptoms not addressed — Medical Assessor made finding contrary to claimant's submissions and associated evidence without referring or apparently taking into account what claimant put to him — Medical Assessor's reasons are insufficient — Decisions of Medical Assessor and President's delegate must be set aside Legislation Cited: Motor Accident Injuries Act 2017 (NSW), ss 3.24, 7.17, 7.20, 7.23 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 60 MVR 194 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Vincent Francis Stanizzo (Plaintiff) AAI Limited trading as GIO (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Dr Raymond Wallace in his capacity as Medical Assessor appointed by the State Insurance Regulatory Authority under s 7.4 of the Motor Accident Injuries Act 2017 (Third Defendant) Representation: Counsel: J Gumbert / M J Jones (Plaintiff) Submitting appearances (Defendants) Solicitors: International Lawyers Co-operative (Plaintiff) Hicksons (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2021/203855 Judgment Introduction 1. By summons filed on 16 July 2021, the plaintiff, Vincent Stanizzo (the claimant), seeks relief under s 69 of the Supreme Court Act 1970 (NSW) arising from decisions of the third defendant, Dr Wallace (the Medical Assessor), and of the second defendant, the President of the Personal Injury Commission of New South Wales (the President). The plaintiff subsequently filed an amended summons on 3 August 2021. 2. The application arises in the context of the claimant's claim against the first defendant, AAI Limited trading as GIO (the Insurer), for the cost of medical treatment for injuries to his cervical spine, which he alleges that he sustained in a motor vehicle accident on 16 May 2018. 3. As the accident occurred after 1 December 2017, the Motor Accident Injuries Act 2017 (NSW) (the Act) applies. All references to legislation in these reasons are, unless otherwise stated, references to the Act. 4. Each of the three defendants has filed a submitting appearance. The facts 1. On 23 August 2019, a liability assessment determined that the accident was caused by the fault of a driver insured by the Insurer. The claimant, who pursuant to s 3.24(1)(a) is entitled to statutory benefits for the reasonable cost of treatment and care, claimed the cost of cervical cord decompression surgery from the Insurer. On 19 September 2019, the Insurer decided to refuse the claim. On 20 December 2019, its decision was confirmed on internal review. 2. Clause 2 of Schedule 2 relevantly provides that the following matter is declared to be "medical assessment matters" for the purposes of Pt 7: "(b) whether any treatment and care provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care) …" 1. Thus, the Insurer's denial of the claimant's claim created a "medical dispute", which s 7.17(a) defines as being a dispute between a claimant and an insurer about a "medical assessment matter". The dispute was whether the accident had caused or contributed to the need for the surgery. 2. On 7 January 2020, the claimant applied to the entity which has become the Personal Injury Commission (the Commission) for review of the Insurer's decision. Pursuant to s 7.20, the dispute was referred to the President, who arranged for it to be dealt with by the Medical Assessor. 3. In submissions made to the Medical Assessor, the claimant contended that, although he had difficulties with his cervical spine (arising from previous injuries and an underlying condition) before the accident, he had been asymptomatic for the four years prior to the accident and symptomatic immediately after the accident. 4. On 8 September 2020, the Medical Assessor assessed the claimant's claim and issued a certificate in which he certified that the need for the treatment was caused by a progression of an underlying degenerative condition and was not causally related to the accident. The Medical Assessor was obliged to give reasons in his certificate, which was conclusive evidence of the matters stated therein: s 7.23(7). The Medical Assessor's conclusions were, relevantly as follows: "Mr Stanizzo is currently 67 years of age and was suffering from symptomatic degenerative multilevel cervical spinal canal stenosis for some 11 years prior to the index accident. He suffered previous significant injuries at his cervical spine as a result of an assault in July 2009 and a motor vehicle accident in April 2013. At worst, Mr Stanizzo suffered a temporary aggravation of pre-existing degenerative cervical spondylosis as a result of the index motor vehicle accident on 16 May 2018, over two years ago, which would have settled within 6 months of this incident. His current cervical spinal symptoms are due to pre-existing significant degenerative spinal canal stenosis at the cervical spine which is constitutional in origin and unrelated to his motor vehicle accident. The need for surgical intervention at this time does not relate to injury caused by the motor vehicle accident." 1. On 29 September 2020, the claimant applied for a review of the Medical Assessor's assessment. On 20 April 2021, the President's delegate refused the claimant's application and classified the dispute as "simply a difference of opinion between medical practitioners" (the President's decision). Consideration The grounds 1. The claimant, for whom Ms Gumbert and Mr Jones appeared, challenged the decisions of the Medical Assessor and the President on the following grounds: 1. there was no evidence to support the Medical Assessor's finding that the claimant had suffered symptomatic cervical canal stenosis for 11 years prior to the accident; 2. the Medical Assessor had failed to address the claimant's substantial and clearly articulated submission that he had been asymptomatic for four years prior to the accident; 3. the Medical Assessor's reasons were insufficient; and 4. the Medical Assessor failed to put his assumption about the pre-accident symptomatology to the claimant and thereby failed to accord procedural fairness to the claimant. 1. It is an aspect of procedural fairness that a decision-maker consider and address the arguments put by a party against whose interest the decision is to be made: see Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [19]-[21] (Basten JA, McColl and Macfarlan JJA agreeing) and Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [109] (Gleeson JA, Macfarlan and Leeming JJA agreeing). Where there is a legal obligation to give reasons (as there was in the present case by reason of s 7.23(7)), the decision-maker is required to set out the "actual path of reasoning" by which the conclusion was reached: Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48] (French CJ, Crennan, Bell, Gageler and Keane JJ). 2. Thus, in order to address the claimant's claim, the Medical Assessor was required to address the contribution, if any, which the accident had made to the condition of the claimant's cervical spine and to the ongoing symptoms from which he was suffering. This, in turn, required a consideration of the extent to which the claimant had been experiencing symptoms in his cervical spine prior to the accident. The claimant's claim (that the injuries sustained in the accident had caused or contributed to the need for surgery) was based on his having been asymptomatic in his cervical spine for four years prior to the accident. Not only was this submission (and the associated evidence) not addressed by the Medical Assessor, but he made a finding to the contrary without referring, or apparently taking into account, what the claimant had put to him. This amounts to a denial of procedural fairness. 3. The claimant has also established that the Medical Assessor's reasons are insufficient: see the principles summarised in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 60 MVR 194 at [47]-[64] (Basten JA, McColl and Macfarlan JJA agreeing). The Medical Assessor failed to address the claimant's principal argument. I am satisfied that these two errors (which correspond with grounds (2) and (3) above) amount to errors of law on the face of the record and jurisdictional errors. The establishment of these two grounds make it unnecessary to determine grounds (1) and (4). 4. It follows that the Medical Assessor's decision (which is the operative decision) must be set aside. The antecedent decision having been set aside, the President's decision falls away and must also be set aside. 5. Ms Gumbert submitted that I ought order that, when the matter is remitted, it be referred to a medical assessor other than the third defendant. I accept that this is an appropriate course in that it would avoid any apprehension of bias arising from the Medical Assessor's decision made on 8 September 2020. The claimant's application for extension of time to file the summons 1. The original summons was filed on 16 July 2021. This was within the three-month period prescribed by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1) to challenge the President's decision. However, Ms Gumbert accepted that the claimant required an extension of time to challenge the Medical Assessor's decision. As referred to above, all of the defendants have filed submitting appearances. No prejudice to the Insurer has been identified. The challenge to the Medical Assessor's decision is related to the challenge to the President's decision. Had the President decided to refer the matter to a Review Panel, it would not have been necessary for the plaintiff to challenge the Medical Assessor's decision since it would have been the subject of review by a Review Panel in any event. It was appropriate for the claimant to exercise his right to seek review of the Medical Assessor's decision by applying to the President before invoking this Court's jurisdiction: Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [84]-[86] (Beazley JA, McColl and Macfarlan JJA agreeing). For these reasons, I am satisfied that time ought be extended under UCPR, r 59.10(2). Costs 1. As each of the defendants filed submitting appearances, Ms Gumbert did not seek an order for costs. Orders 1. For the reasons given above, I make the following orders: 1. Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 59.10(2), extend the time within which the plaintiff may file the summons to 16 July 2021. 2. Set aside the decision of the second defendant made on 20 April 2021. 3. Set aside the decision of the third defendant made on 8 September 2020. 4. Remit the matter to the second defendant for referral for assessment by a medical assessor other than the third defendant. 5. Make no order as to costs. ********** Amendments 26 August 2021 - typographical error corrected in order (4) - coversheet and [20] 22 October 2021 - "Motor Accidents Injuries Act 2017" replaced by "Motor Accident Injuries Act 2017" - coversheet and [3] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2021