Supreme Court New South Wales Medium Neutral Citation: Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 Hearing dates: 4 February 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Common Law Before: Brereton JA Decision: (1) Pursuant to Uniform Civil Procedure Rules 2005, r 59.10, extend time to the date on which the summons was filed for the commencement of these proceedings with respect to the decision, medical assessment and certificate of the third defendant in his capacity (at that time) as a medical assessor of the State Insurance Regulatory Authority dated 7 December 2020 purportedly made pursuant to Motor Accident Compensation Act 1999 (NSW), s 61 ("the medical assessor's decision"). (2) Quash the medical assessor's decision. (3) Quash the decision of the President's Delegate of the Personal Injury Commission of New South Wales dated 4 May 2021 purportedly made pursuant to s 63 of the Motor Accidents Compensation Act 1999 (NSW) dismissing the plaintiff's application for review of the medical assessor's decision. (4) Order that the proceedings be remitted to the Personal Injury Commission for determination of the application for medical assessment by a different medical assessor. (5) Order that the first defendant pay the plaintiff's costs. Catchwords: INSURANCE – Liability insurance – Motor vehicle – Compulsory third party insurance – Dispute as to percentage of impairment caused by motor vehicle accident given pre-existing condition – Finding by medical assessor that surgery was not necessitated by accident – Insured's application for review of medical assessor's decision by President of Personal Injury Commission dismissed – Judicial review of medical assessor's decision and dismissal of review application – Finding that assessor failed to respond to substantial and clearly articulated argument, provide lawful reasons, and evaluate evidence as required – Quashing of medical assessor's decision and President's delegate's dismissal of review application – Remittal to Personal Injury Commission for medical assessment by different assessor Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Alchin v Daley [2009] NSWCA 418 Allianz Australia Insurance Limited v Cervantes (2012) 61 MVR 443; (2012) NSWCA 244 Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; 83 MVR 403; [2018] NSWCA 22 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; 235 ALR 342; [2006] NSWCA 284 Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352; 347 ALR 173; [2017] FCAFC 107 Dunbar v Allianz Australia Insurance Limited (2015) 70 MVR 15; [2015] NSWSC 119 Insurance Australia Group Ltd v Keen (2021) 98 MVR 164; [2021] NSWCA 287 Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Tickner v Chapman (1957) 57 FCR 451; [1995] FCA 1726 Tranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64; 88 ALJR 52; [2013] HCA 43 Texts Cited: NSW State Insurance Regulatory Authority (SIRA) Motor Accident Permanent Impairment Guidelines Category: Principal judgment Parties: Margaret Lederer (Plaintiff) Insurance Australia trading as NRMA Insurance Ltd (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) Dr Phillip Truskett in his capacity as a medical assessor of the State Insurance Regulatory Authority of New South Wales (Third Defendant) Representation: Counsel: J Gumbert / M Jones (Plaintiff) K Rewell SC (First Defendant) Solicitors: North Star Law (Plaintiff) Moray & Agnew (First Defendant) File Number(s): 2021/219912 Judgment 1. The plaintiff Margaret Lederer was injured in a motor vehicle accident on 3 June 2016 and lodged a claim for damages under the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act"). The first defendant Insurance Australia Limited is the CTP insurer of the vehicle accepted as at fault in the accident ("the insurer"). There was a dispute between the plaintiff and the insurer as to the percentage of whole person impairment arising from the accident, and whether a two-level discectomy and fusion surgery at C5/6 and C6/7 performed on the plaintiff was caused by the accident and/or reasonable and necessary in the circumstances. It is common ground that if the fusion surgery was causally related to the accident, the plaintiff's impairment would have exceeded the 10% threshold for eligibility for damages for non-economic loss under MAC Act, s 131. The third defendant, a medical assessor appointed under MAC Act, s 60, issued a certificate pursuant to s 61 certifying that the fusion surgery did not relate to the injuries caused by the accident, and thus the plaintiff's whole person impairment did not exceed 10%. The plaintiff applied for a review of the assessor's decision, which was opposed by the insurer. The application for a review was refused by a delegate of the President of the Personal Injury Commission on 4 May 2021. 2. By summons filed on 2 August 2021, the plaintiff seeks judicial review both of the assessor's decision and of the delegate's decision. In this context, a decision of the delegate declining to refer an application to a review panel leaves the decision of the assessor as the operative decision, which remains amenable to judicial review. [1] 3. In respect of the assessor's decision, the plaintiff requires an extension of time in which to apply for judicial review. The delay was attributable to the plaintiff having first sought a review of the decision pursuant to MAC Act, s 63, in the Commission. It is appropriate for a party first to exhaust review remedies in the tribunal below before seeking prerogative relief. [2] No submission was made in opposition to the grant of an extension of time for that purpose. Statutory framework 1. Under MAC Act, s 58, whether treatment provided to an injured person was or is reasonable and necessary in the circumstances, and whether any such treatment relates to the injury caused by the motor accident, are "medical assessment matters". By s 60, a medical dispute may be referred for assessment by an assessor. By s 61(1), a medical assessor to whom a medical dispute is referred is to give a certificate as to the matters referred for assessment. 2. Pursuant to s 133(2) the assessment of the degree of permanent impairment is to be made in accordance with the NSW State Insurance Regulatory Authority (SIRA) Motor Accident Permanent Impairment Guidelines ("the PI Guidelines"). The then applicable guidelines provided (emphasis added): "1.5 An assessment of the degree of permanent impairment is a medical assessment matter under s 58(1)(d) the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes." 1. The PI Guidelines further provided, regarding the assessment of impairment: "1.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment: 1.17.1 is an impairment arising from an injury caused by the accident, and 1.17.2 is an impairment as defined in clause 1.9 (above). 1.18 An assessment of the degree of permanent impairment involves three stages: 1.18.1 a review and evaluation of all the available evidence including: ● medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) ● medico-legal reports ● diagnostic findings ● other relevant evidence" 1. Section 63 of the MAC Act provides for the review of a medical assessment by a review panel. Under s 63(1), a party to a medical dispute may apply to the President of the Commission to refer a medical assessment by a single assessor to a review panel of assessors for review. By subsection (2), such an application may only be made on the grounds that the assessment was incorrect in a material respect. Section 63(2B) provides that the President's delegate is to arrange for any such application to be referred to a review panel (of two medical assessors and a member of the Commission assigned to its Motor Accidents Division: s 63(3)) but only if the delegate 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. However, if the matter is referred for review, the review is not limited to a review only of that aspect of the assessment which is alleged to be incorrect, but is by way of new assessment of all the matters with which the assessment is concerned. The initial assessment 1. On 28 August 2018, the plaintiff made an application for assessment of permanent impairment. In her evidentiary statement dated 8 August 2018, the plaintiff stated that immediately after the impact she felt severe pain in her spine, from the neck down into the lower back and hips, and that upon discharge from hospital two days later, she had inter alia, neck pain, back pain, right hip pain and nausea. The neck pain was described as "more so on the right side where my head was turned … at the time of the collision". She said that during a trip to the United States in June 2016 she was very sick and had to lie down on the flight to Los Angeles "due to pain my neck, back, hip, legs, calf pain and nausea". She said that after returning to Sydney, she continued to suffer symptoms including "pain in the neck and back". As to her (then) current condition, she described pain in the neck, more so on the right side, which she said she had never had of that type prior to the accident. She described right sided neck pain moving around to her face, radiating into her chest and right shoulder, down into her right arm as far as her fingers, and that it was constant and so bad that it woke her at night. 2. Following the accident, the plaintiff was admitted to St Vincent's Hospital. The discharge summary included, in the history, "C-Spine immobilised on scene. On arrival to Emergency, she reported lumbar spine/buttocks pain but was otherwise was asymptomatic". On examination there was "nil tenderness" of the cervical spine. 3. On 7 June 2016, three days after the accident, the plaintiff attended her general practitioner Dr Segel, who noted "patient felt dizzy yesterday and was worried about her neck and brain – other occupant in the rear had brain haemorrhage" and "did not have any x-rays of the C-Spine felt there was some acceleration / deceleration of the head". Recording that there had been a loss of consciousness, the doctor noted "pain present bilaterally post aspect of the C-spine" and "level of the pain in the neck is 3/10". On examination there was "non-tender palpation of the C-spine" and "full range of movement in the C-spine". He referred her for x-ray of the cervical spine, which revealed that the "C-spine was straightened. There were degenerative changes at C4/5, C5/6 and C6/7. There was likely foraminal stenosis at C5/6 and C6/7 with potential nerve root impingement. There were no fractures". According to Dr Segel's notes, the x-rays were noted by him on 9 June 2016 in the following terms: "Review x-rays C-spine straightening seen uncovertebral degen changes present at C4/5, C5/6, C6/7 Likely some foraminal stenosis at the C5/6 6/7 potential impingement of the exiting nerve roots No fracture." 1. It was uncontroversial that such degenerative changes could not have occurred in the preceding five days. Moreover, Dr Segel's notes also contained a reference to consultation, a year before the accident, on 27 July 2015, the notes of which included the following: "Bone scan with CT/Spect Active arthropathy CMC articulations of the wrists and at multiple sites as specified Cervical thoracic lumbar spondylosis changes …" 1. Thus there was evidence of some degenerative changes in the cervical spine well before the accident, and that whereas they had not been symptomatic before the accident, they were afterwards. 2. On 2 January 2019, an assessor certified that the plaintiff had a number of injuries caused by the accident, including relevantly "cervical spine – soft tissue injury". The application for further assessment 1. On 18 May 2020, the plaintiff applied for a further assessment on the basis that there had been a deterioration in her condition. On her application for further assessment of permanent impairment, which culminated in the decision impugned in these proceedings, to the subject assessment, the plaintiff submitted that: 1. the accident was a high-speed accident in which she was subjected to significant acceleration and deceleration forces; 2. she reported neck pain since the accident which continued and progressed relentlessly, it being noted in her first consultation with her GP on 7 June 2016; 3. conservative treatment did not alleviate her symptoms; and 4. she then underwent C5/6 anterior discectomy fusion and C6/7 anterior discectomy fusion by Dr Steel on 19 July 2019, which was successful, resulting in an improvement in cervical symptoms and nausea. 1. In a further evidentiary statement of 30 March 2020, the plaintiff stated that she had been suffering neck pain ever since the accident; that the neck pain had progressed and got worse despite physiotherapy, acupuncture, rest, injections and medication; that the neck pain was constant, worse on the right side and travelling down her right side; and that she also had pain from the neck across the right side of her face and chest. She explained that after consulting Dr Steel, and a steroid injection, she underwent the double cervical fusion surgery on 19 July 2019. 2. In a report dated 30 May 2019, Dr Steel, consultant neurosurgeon and spine surgeon, stated, relevantly, that: "She sustained a significant whiplash-type injury at this time and has had on-going neck pain that has relentlessly progressed since this time. When patients sustain severe whiplash injury, this can injure the disc setting off a degenerative cascade which appears to have occurred in this case. The degenerative changes in her discs are very severe at C6/7 and C5/6 while the rest of her spine is relatively normal. This would be in keeping with high speed trauma injuring the discs which have now degenerated further". 1. Dr Steel also responded to an opinion of Dr Coroneos, Neurosurgeon, relied on by the insurer, to the effect that the effects of the accident had resolved and the changes on images were related to spondylosis and a thoracic cyst: "Dr Coroneos has opined that the changes on radiology are of cervical spondylosis. In one way this is correct. Cervical spondylosis is the all encompassing term used to describe degenerative changes in the cervical spine. This involves disc degenerative, disc protrusion, disc bulging and osteophyte formation. What is not clarified is to where her symptoms are coming from. Mrs Lederer reports mechanical neck pain that has started after her [accident] and she describes it as severe. This is in keeping with the changes seen on the MRI scan. As outlined above, the presence of Modic type 1 endplate changes are not typical of cervical spondylosis. These are typical of severe disc degeneration which is usually symptomatic with pain. Most patients will develop cervical spondylotic changes as they age and these changes are asymptomatic. They culminate in loss of height in the disc and rigidity so that most patients by the age of 80-85 have spontaneous ankylosed ie fused the joints between C3-C7. This leads to stiffness of the neck but usually does not cause pain." 1. Significant parts of Dr Steel's opinion were quoted in her submissions, including in particular that with severe whiplash, the disc can be injured, "setting off a degenerative cascade which appears to have occurred in this case", and that while it was correct that she had had cervical spondylosis, her description of severe mechanical neck pain starting after the accident was in keeping with changes seen on the MRI scan and typical of severe disc degeneration rather than with gradual degenerative changes. 2. In his reasons for decision, the assessor noted that the impact was a significant one, and that on attending Dr Segel on 7 June 2016 the plaintiff complained of neck as well as back and right hip pain. Of the discharge summary of 5 June 2016, he observed that there was no C-spine tenderness; likewise, that the ambulance record referred to no C-spine tenderness. He commented that St Vincent's was a level 1 trauma centre which would follow trauma protocol, in particular that cervical spine injuries are suspected until excluded, and that it was routine to perform cervical spine imaging on all patients, though now clinical clearance could be given without imaging. He said: "From reviewing the notes, it is clear that a C-spine imaging was not required. If Ms Lederer had significant neck injury at that time the pain or tenderness at the very least would be expected. A major neck injury would therefore not be considered likely." 1. He summarised Dr Segel's notes of 7 June 2016, including the complaint of neck pain; that doctor's view that there was a whiplash injury; and the notes of 9 June describing the C-spine x-rays and the changes they disclosed, commenting: "These would be considered degenerative. No evidence of acute injury." 1. The assessor observed that Dr Segel had made notes of attendances on 16 February 2017 when the plaintiff had complained of "right sided neck pain worse with movement", and on 9 March 2017 when he viewed an MRI of the C-spine describing degenerative changes consistent with age. He also noted her attendance prior to the accident on 27 July 2015, "after bone scan with CT SPECT there were multiple sites with active arthritis in cervical thoracolumbar spondylitic changes". 2. He reviewed the medical documentation, including that which has been described above. Relevant to cervical spine, he noted the following: 1. MRI of 6 March 2017 (I-Med Radiology): "MRI cervical spine; There are degenerative changes seen. C2/3 and C3/4 appear normal … C4/5 and C5/6 there is degenerative loss of disc height subtle osteodiscal elevation of the anterior theca is seen without neurogenic compromise. There is, however, mild narrowing of the left C6 neural exit. Are there any less C6 nerve root symptoms? At C6/7 there is a broad-based osteodiscal protrusion eccentric to the left …" 1. MRI 22 February 2018 (St Vincent's Clinical Imaging): "Moderate to advanced degenerative spondylosis at C5/6 and C6/7 with diffuse disc/ridge complexes associated with narrow oedema in their respective endplates reflecting bony stress response, which can be associated with mechanical pain symptoms. No evidence for neural impingement throughout the cervical spine. A diffuse disc ridge complex is prominent at C6/7 contacting but not indenting the ventral cord, with uncovertebral hypertrophy results in mild to moderate foraminal stenosis contacting but not flattening the C7 nerves. The remaining foramina are widely patent. No facet arthrosis. Normal appearance of the paraspinal soft tissues in the cervical spine including a right sternocleidomastoid muscle. No significant change from the prior study." 1. MRI of 21 August 2018 (St Vincent's Clinic Imaging): "C-spine, degenerative disc change at C5/6 and C6/7 levels, which have not progressed over the last six months." 1. MRI of 15 April 2019 (St Vincent's Clinic Medical Imaging), on which he commented: "No significant change disc bulge at C6/7 seems slightly more pronounced than on the previous examination but there is no high grade compression or neural lesion." 1. CT of 22 July 2019 (St Vincent's Medical Imaging): "The ACDF hardware components noted from C5 to C7 wo any osteolysis or adverse features." 1. The assessor also referred to several medico-legal reports: 1. Dr Peter Yu (Occupational Physician) dated 31 May 2017, who on examination found a full range of neck movement and no neurological signs, and formed the view that plaintiff had sustained a superficial self-limited gradient soft tissue injury to her low back as a result of the accident; 2. Associate Professor Jankelowitz (Neurologist) 30 October 2018, who described that the plaintiff had repeated imaging showing only degenerative changes of her neck; and 3. Dr Coroneos (Neurosurgeon) of 30 February 2019, who expressed the view that the plaintiff had experienced a cervical and lumbosacral soft tissue strain as a result of the accident with no evidence of any structural spine or disc injury having occurred and no evidence of radiculopathy. He was of the view that there was longstanding cervical lumbar spondylosis and that the changes pre-existed the accident. 1. Turning to relevant additional documentation provided for the further assessment, he referred to Dr Steel's report of 30 May 2019. It is true that he observed that the plaintiff's reported complaint of right-side pain in the neck immediately following the accident was not reflected in the hospital notes, but I do not think this meant that he rejected it. He then recorded: "He also commented, she had no history of neck pain prior to the motor accident where she sustained a whiplash, which set off a 'degenerative cascade'. He also felt that she may not have needed surgery if it was not for her degenerative disease if it was not for the motor vehicle accident. He also challenged Dr Coroneo's comment stating that the site of her pain was not necessarily discogenic. He expressed the view 'in my view the proposed surgery is very likely to alleviate her neck pain'." 1. Under the heading "Conclusions", the assessor first considered "Diagnosis and Causation", and reasoned: "From review of the documentation, it is apparent that from the contemporaneous records of St Vincent's Hospital that there was no evidence of significant neck or back pain. As a level 1 trauma centre, as I described above, the threshold for neck imaging is very low but she did pass the criterion to have her neck cleared without imaging. The records from Dr Segel's notes are progressive changes relating to her neck and back. There do appear to be inconsistencies in some documentation relating to the presence and evidence of particular symptoms relating to arm and neck pain but it is noted that for a significant period of time she had a normal range of neck movement and her prominent symptoms appeared to be headache and nausea. It is also apparent that she had pre-existing spinal disease from a report by Dr Bertouch (Rheumatologist) on 4 September 2012, he defined diffused idiopathic skeletal hyperostosis of her thoracic spine, which is constitutional. It is also impressive that her imaging did not show acute changes with nerve root compression of cervical nerves. These would be the usual acute findings. I also note that her surgery was performed on the 9 July 2019 more than three years from the time of her injury. Dr Cameron and Dr Yu support the concept that soft tissue injuries occurred in the motor vehicle accident and there was no structural damage. This appears to be reflected in imaging study reports that I have reviewed, and documentation provided. It would be my feeling that although Associate Professor Steel performed a two-level discectomy at C5/6, 6/7 and two-level spinal fusion that this was not as a result of Ms Lederer's motor vehicle accident but was due to progressive degenerative change. In relation to assessment of whole person impairment this will be provided but I believe it justifiable that her spinal fusion surgery should be in part subtracted to be reflective of her degenerative change. I can concur that soft tissue injury would have occurred to her cervical spine, thoracic spine and lumbar spine at the time of the motor vehicle [accident] …" 1. He determined that in connection with her cervical spine the plaintiff had a whole person impairment of 5%, for reasons that included: "According to Dr Cameron when previously assessed, she had a 5% whole person impairment of her neck due to non-variable radicular complaint as her spinal fusion is not considered to be a direct result of the motor vehicle accident as discussed above. I believe it justified that 20% can be deducted from the 25% which leaves a 5% whole person impairment, as her need for fusion relates to progressive degenerative disease." 1. Accordingly, the assessor concluded that the subsequent need for surgery related to pre-existing degenerative changes and was not the result of the accident. He continued: "For reasons described above given the lack of convincing evidence of significant structural injury as it results from the motor vehicle accident … I believe that the spinal fusion and discectomy at C5/6 and C6/7 is not the result of Ms Lederer's motor vehicle accident and therefore on that basis is not considered reasonable and necessary." 1. While the assessor referred to Dr Steel's report, and summarised the passages extracted above, his reasons do not explain why he did not accept it. The review application 1. By application filed on 27 February 2021, the plaintiff applied for a review of the assessment, complaining that the assessor erred in assessing whole person impairment at under 10% and determining the surgery to the cervical spine was not causally related to the accident nor reasonable and necessary. The supporting submissions contended that the assessor has made material errors by: 1. treating an absence of contemporaneous evidence as determinative in relation to causation; 2. failing to respond to a substantial and clearly articulated argument; 3. failing to provide lawful reasons; and 4. failing to apply the lawful test of causation. 1. Those grounds for review are reflected in the grounds on which the present application for judicial review is advanced. 2. The delegate's reasons of 4 May 2021 addressed and rejected each of those grounds. In respect of the complaint of failure to respond to a substantial and clearly articulated argument, the delegate said: "[41] The previous submissions also referred to a report by Dr Steel dated 30 May 2019. [42] Assessor Truskett addressed that report on pages 16 and 17 of the certificate and at times provided commentary specifically addressing Dr Steel's comments. [43] For example: The motor vehicle accident was high speed and described the accident. She reported right side pain on her neck'. (My comment: This was not reflected in hospital notes) … He documents that she was sent for a right C6 foraminal steroid injection on 14 December 2018 and noted with local anaesthetic reported almost complete alleviation of her symptoms. (My comment: This could be placebo). [44] Then, in forming his conclusions on causation, the Assessor said: It would be my feeling that Associate Professor Steel performed a two-level discectomy at C5/6, 6/7 and two-level spinal fusion that this was not as a result of Ms Lederer's motor vehicle accident but was due to progressive degenerative change. [45] Clearly, Assessor Truskett has engaged with Dr Steel's opinion. [46] Simply, I am satisfied Assessor Truskett engaged with the submissions that were before him despite the applicant's contention he did not. A disagreement with the applicant's position does not indicate that submissions were not addressed. Nor does it mean the arguments were not considered." 1. The applicant did not suggest that there was any basis for judicial review of the delegate's decision independent from the grounds on which the medical assessor's decision was impugned, and accepted that the application in respect of the review decision hinged on the outcome of the application for a review of the first instance assessment. Grounds for judicial review 1. In this Court, the plaintiff applicant advanced six grounds of alleged jurisdictional error or error of law on the face of the record, namely: 1. failure to respond to a substantial and clearly articulated argument; 2. failure to provide lawful reasons; 3. failure to apply the lawful test of causation; 4. treating the absence of contemporaneous evidence as determinative; 5. failure to enquire; and 6. failure to evaluate the evidence in accordance with the PI Guidelines. 1. It may be accepted that a failure to respond to a substantial clearly articulated argument may constitute a denial of natural justice. [3] However, this does not imply an obligation to consider every piece of evidence presented or every passage in a report. [4] 2. It is also uncontroversial that an assessor is required to provide reasons, [5] and that the statement of reasons must explain the actual path of reasoning by which the assessor arrived at the opinion formed on the medical question under consideration, in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. [6] What is required to discharge that obligation is informed by the battleground between the parties. This was explained (albeit in the context of a review panel) in Campbelltown City Council v Vegan: [7] "Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel." 1. Similarly, in Alchin v Daley it was said: [8] "The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute." 1. Reference has already been made to the PI Guidelines, clause 1.17 of which mandates that an assessor must evaluate the available evidence, which is reflected in clause 1.18 describing the first stage of an assessment as a "review and evaluation of all the available evidence". Failure to comply with mandatory guidelines may constitute a constructive failure to perform the assessor's statutory duty. [9] The obligation to "evaluate" all the available evidence involves no less, and possibly more, than the obligation to "consider" certain matters, which requires that the assessor intellectually engage with and evaluate that evidence. [10] Failure to respond to substantial argument, give reasons, evaluate evidence 1. The grounds that complain that the assessor failed to respond to a substantial and clearly articulated argument, failed to provide lawful reasons, and failed to evaluate the evidence in accordance with the guidelines, overlap. 2. The plaintiff's case in this Court was, in essence, that her fundamental case before the assessor was that the accident had caused a whiplash injury that triggered a "degenerative cascade" of her cervical spine culminating in the need for surgical intervention. The plaintiff did not dispute that she had a pre-existing degenerative condition, and she did not contend that she suffered an acute injury to the cervical spine in the accident, but that her pre-existing condition had been exacerbated and rendered symptomatic (when it was previously not symptomatic) by the accident. Then, the plaintiff submits, this argument was not addressed by the assessor, meaning that there was a failure to respond to a substantial and clearly articulated argument, a failure to provide adequate reasons, and a failure to engage intellectually with and evaluate the available evidence. 3. As has already been observed, the assessor, in the course of his document review, referred to Dr Steel's report, including his reference to the motor vehicle and whiplash injury setting off a "degenerative cascade". In his conclusions, he reasons that: 1. the course of events on the plaintiff's admission to hospital are not indicative of significant neck pain; and 2. she had pre-existing spinal disease, and her imaging did not show acute changes. 1. As has also been noted, he concurred that there would have been soft tissue injury to her cervical spine at the time of the accident. 2. There is nowhere to be found, in the assessor's reasons, any explanation as to why a "degenerative cascade" was not triggered by the accident. It is clear from his concluding observations that it was the "lack of convincing evidence of significant structural injury" that was determinative, but he did not address Dr Steel's explanation that a severe whiplash injury can injure the disc setting off a degenerative cascade "which appears to have occurred in this case" – which he elaborated, explained and justified including by reference to the presence of Modic type one changes indicating oedema which were not typical of spontaneous cervical spondylosis. 3. For the insurer, Mr Rewell SC submitted that by focussing on whether there was an acute injury the assessor had not misunderstood the case, but appropriately as a medical assessor was not merely determining the plaintiff's case that there was a "degenerative cascade", but determining whether there was a neck injury which led to the surgery, and this included first whether there was an acute injury, and if not, whether the degenerative condition was pre-existing, or was triggered by the accident. 4. I agree that the assessor was not required to respond word by word to Dr Steel's analysis. But he was required to consider, and to show that he had considered, the question of whether pre-existing age-related degenerative illness was aggravated and/or rendered symptomatic by the accident. This is particularly so in circumstances where: 1. there is no evidence that the plaintiff's neck was other than asymptomatic before the accident; 2. the motor vehicle in which she was travelling was "rear ended" by another at high speed; 3. it is accepted that she incurred a soft-tissue injury of the cervical spine in the accident; 4. on any view, she was complaining of neck pain within three days after the accident (and on her account suffered such pain immediately), and that pain progressively deteriorated, although at one stage it was alleviated by a steroid injection; and 5. it was ultimately somewhat mitigated by Dr Steel's surgery. 1. Even if one puts aside her own evidence of immediate symptoms and relies only on Dr Segel's notes of 7 June 2016, the concurrency of her neck pain becoming symptomatic with the soft-tissue cervical injury admittedly incurred in the accident is striking. Even without Dr Steel's evidence, this required consideration of the familiar phenomena by which a pre-existing asymptomatic age-related degenerative condition becomes symptomatic because of some trauma. In this case, that was fortified by Dr Steel's evidence. 2. The assessor rejected that the plaintiff had an acute neck injury in the accident (as is common ground), and accepted that she had a pre-existing spinal disease (as is common ground). He accepted that she incurred a soft-tissue injury to her cervical spine in the accident. However, he nowhere addressed the question of whether the pre-existing disease was aggravated or rendered symptomatic by the accident. In so doing, he failed to engage with and evaluate Dr Steel's report; and he failed to engage with the substance of the plaintiff's case, or to give reasons which explained why he rejected it. 3. The insurer referred to the delegate's decision on the review application as supportive of its position that the assessor had not failed to respond to the plaintiff's case. The relevant parts of the delegate's decision have been set out above. 4. With respect, in pointing to places in which the assessor's reasons mentioned, and even commented on aspects of, Dr Steel's report, the delegate does not demonstrate that the assessor engaged with his crucial opinion that she had sustained a whiplash injury setting off a "degenerative cascade". The peripheral respects in which the assessor addressed Dr Steel's report did not amount to evaluating his essential and crucial opinion, nor responding to the gravamen of the plaintiff's case. 5. In my opinion these grounds have been established. Conclusion 1. As the assessor, by failing to respond to a substantial and clearly articulated argument, to provide lawful reasons, and to evaluate the evidence in accordance with the guidelines, erred in a jurisdictional respect, the decision, medical assessment and certificate dated 7 December 2020 are void. It is unnecessary to address the remaining grounds. As there was no valid assessment, the decision on the review application is also a nullity. 2. My orders are: 1. Pursuant to Uniform Civil Procedure Rules 2005, r 59.10, extend time to the date on which the summons was filed for the commencement of these proceedings with respect to the decision, medical assessment and certificate of the third defendant in his capacity (at that time) as a medical assessor of the State Insurance Regulatory Authority dated 7 December 2020 purportedly made pursuant to Motor Accident Compensation Act 1999 (NSW), s 61 ("the medical assessor's decision"). 2. Quash the medical assessor's decision. 3. Quash the decision of the President's Delegate of the Personal Injury Commission of New South Wales dated 4 May 2021 purportedly made pursuant to s 63 of the Act dismissing the plaintiff's application for review of the medical assessor's decision. 4. Order that the proceedings be remitted to the Personal Injury Commission for determination of the application for medical assessment by a different medical assessor. 5. Order that the first defendant pay the plaintiff's costs. ********** Endnotes 1. Insurance Australia Group Ltd v Keen (2021) 98 MVR 164; [2021] NSWCA 287 at [62] (Leeming JA; Basten JA and Simpson AJA agreeing). 2. Rodger v De Gelder (2011) 80 NSWLR 594 at 614 [91] – [92] (Beazley JA; McColl and Macfarlan JJA agreeing). 3. Tranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 231; 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] (Gummow and Callinan JJ); Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 at [81] (Kirby J); Allianz Australia Insurance Limited v Cervantes (2012) 61 MVR 443; (2012) NSWCA 244 at [19]-[22] (Basten JA); Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 at [88]-[95], [109] (Gleeson JA). 4. Allianz Australia v Cervantes at [22]; Dunbar v Allianz Australia Insurance Limited (2015) 70 MVR 15; [2015] NSWSC 119 at [76] (Fullerton J); Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211at [89]. 5. MAC Act, s 61(9). 6. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55]. 7. (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121] (Basten JA); see also Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 at [17]-[18] (Hall J). 8. [2009] NSWCA 418 (Sackville AJA; McColl JA and Young JA agreeing). 9. Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; 83 MVR 403; [2018] NSWCA 22. 10. Tickner v Chapman [1995] FCA 1726; 57 FCR 451; Carrascalao v Minister for Immigration & Border Protection (2017) 252 FCR 352; 347 ALR 173; [2017] FCAFC 107 at [43]-[46] (Griffiths, White and Bromwich JJ). 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: 25 March 2022