Supreme Court New South Wales Medium Neutral Citation: Adam Briggs v IAG Limited t/as NRMA Insurance [2024] NSWSC 3 Hearing dates: In chambers Date of orders: 11 January 2024 Decision date: 11 January 2024 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) The third review panel made errors of law on the face of the record and jurisdictional errors. (2) The decision of the review panel dated 12 May 2023 is set aside. (3) The matter is remitted to the Personal Injury Commission to be dealt with according to law. It is recommended that the matter be remitted to a differently constituted Review Panel. (4) Costs are reserved. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) s 61 Motor Accidents Injuries Act 2017 (NSW) ss 1.6, 7.1, 7.17, 7.23 and 7.26 Supreme Court Act 1970 (NSW) s 69 Cases Cited: Briggs v IAG Limited [2020] NSWSC 1318 Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372; 100 MVR 232 Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457; 98 MVR 77 Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467 Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 Garcia v MAA (2009) 54 MVR 102 Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786 Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804; 96 MVR 456 Kirk v Industrial Court of NSW (2010) 239 CLR 531 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Pham v NRMA Insurance Ltd (2014) 66 MVR 152 Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13; 95 MVR 73 Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558; 94 MVR 341 94 MVR 188 Rodger v De Gelder (2015) 71 MVR 514 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 Category: Procedural rulings Parties: Adam Briggs (Plaintiff) IAG Limited t/as NRMA Insurance (First defendant) Geoffrey Stubbs, Shane Moloney and Michael Couch as a review panel, constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (Second defendant) President of the Personal Injury Commission of New South Wales (Third defendant) Representation: Counsel: D. Hooke SC and J. Gumbert (Plaintiff) Submitting appearances (Defendants). Solicitors: Scott-Hall Johnston (Plaintiff) Hall & Wilcox (First defendant) Crown Solicitor's Office (NSW) (Second defendant) File Number(s): 2023/254086 JUDGMENT 1. This is a judicial review of a medical assessor's review panel of the Personal Injury Commission. The proceedings between the parties in the Personal Injury Commission and the Supreme Court of New South Wales have quite a history. This judicial review is the third one. 2. By summons filed on 10 August 2023, the plaintiff seeks orders quashing the decision of a medical assessor's review panel ('the review panel') dated 12 May 2023 ('the decision'). By summons filed 10 August, the plaintiff relevantly seeks: 1. An order in the nature of certiorari or, alternatively, a declaration, setting aside or declaring invalid the decision and/or medical assessment and [the third] Review Panel['s] Certificate dated 12 May 2023 made purportedly pursuant to sections 7.23 and 7.26 of the Motor Accidents Injuries Act 2017 (NSW) ('the Act') ('the review panel decision'). 2. An order in the nature of mandamus remitting the matters the subject of the review panel decision and the [third] Review Panel Certificate to the second defendant for reallocation of the matter to a differently constituted medical assessors review panel for determination of the matter according to law. 1. The plaintiff is Adam Briggs. The first defendant is IAG Limited t/as NRMA Insurance. The second defendant is Geoffrey Stubbs, Shane Moloney and Michael Couch as a review panel, constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW). The third defendant is the President of the Personal Injury Commission of New South Wales. At the judicial review, the plaintiff is represented by D. Hooke SC and J. Gumbert of counsel. All of the defendants have filed a submitting appearance. 2. While there is no contradictor, nevertheless, this Court has an obligation to satisfy itself as to whether these grounds of review constitute errors of law on the face of the record or jurisdictional errors. 3. The plaintiff relies upon the affidavit of Scott Hall-Johnston sworn on 19 October 2023 ('SHJ'), which contains the decision under review and the documents that were before the third review panel at the time of making the decision. Background 1. These proceedings arise from a claim by the plaintiff ('the claimant below') for damages under the Act for injuries caused by a motor vehicle accident on 22 May 2018. 2. There was a dispute between the plaintiff and the insurer as to whether the plaintiff's injury was a "threshold injury" (previously called "minor injury") in accordance with s 1.6 of the Act. 3. Pursuant to s 1.6(2) of the Act, an injury that includes "complete or partial rupture of tendons, ligaments, menisci or cartilage" is not a "threshold injury". The dispute as to whether the claimant's injury was a "threshold injury", was a "medical assessment matter" pursuant to ss 7.1 and 7.17 of the Act. 4. The plaintiff was assessed by Medical Assessor Carr, who issued a certificate of reasons dated 14 December 2018 certifying that the plaintiff's injury was a minor injury for purposes of the Act (SHJ-365). 5. The plaintiff lodged an application for review of Assessor Carr's decision pursuant to s 7.26 of the Act on the grounds that, relevantly, the assessor had mischaracterised the plaintiff's lumbar spine disc injury as a "bulge" rather than an annular tear (SHJ-375). The insurer lodged a reply to the plaintiff's application (SHJ-381). The matter came before a review panel in accordance with s 7.26 of the Act. The review panel proceeded to determine the matter without re-examining the claimant. 6. In the decision of the review panel dated 7 November 2019 (SHJ-402) ('the first review panel decision'), the review panel decided that the claimant did in fact suffer an annular tear at L4/5, but that the tear was not causally related to the subject accident (SHJ-407). Consequently, the review panel concluded that the injuries sustained by the claimant in the subject accident were minor injuries for the purposes of the Act. 7. In the first judicial review, the plaintiff sought judicial review of the first review panel decision ('Briggs (No. 1)'). On 29 September 2020, I quashed the first review panel decision on the grounds that the plaintiff had been denied procedural fairness when the review panel relied on medical studies without notice to the parties [1] (SHJ-413). The matter was remitted to the Personal Injury Commission to be dealt with according to law. 8. On 20 February 2021, the matter was then allocated to a newly constituted review panel ('the second review panel'). The second review panel determined that a re-examination of the plaintiff was not required, and proceeded to determine the matter on the papers. 9. On 20 February 2021, the second review panel issued a decision on 20 February 2021, where it determined that the plaintiff's injuries were "minor injur[ies]", for the purposes of the Act (SHJ-461) ('the second review panel decision'). 10. The plaintiff sought a second judicial review in relation to the decision of the second review panel ('Briggs (No. 2)'). On 31 March 2022, Wright J quashed the second review panel decision by consent on the bases that the second review panel had failed to conduct the assessment afresh and failed to apply the correct test of causation [2] (SHJ-470). 11. Again, the matter was allocated to a newly constituted review panel ('the third review panel' or 'the second defendant'). It is the decision of the third review panel that is the subject of this third judicial review. 12. The plaintiff seeks relief from the whole of the third review panel's decision pursuant to s 69 of the Supreme Court Act 1970 (NSW). The statutory framework 1. Section 7.17 of the Act relevantly reads: "medical dispute" means-- (a) a dispute between a claimant and an insurer about a medical assessment matter, or (b) an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by a claims assessor. 1. The certificate issued by a medical assessor or medical assessors is conclusive evidence in relation to any matter certified. [3] 2. A review panel must conduct its assessment afresh. [4] 3. A threshold (previously minor) injury is defined in section 1.6 of the Act, which reads: (1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following— (a) a soft tissue injury, (b) a psychological or psychiatric injury that is not a recognised psychiatric illness. (2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage. [Emphasis added] The plaintiff's contentions 1. In these proceedings, the plaintiff contends that the errors identified in the grounds in the Summons constitute: 1. errors of law on the face of the record; and/or 2. jurisdictional errors. 1. All that is required for the plaintiff to establish his case, and so to enliven the Court's power to issue remedies, is for the Court to find an error of law on the face of the record (the "record" includes the written reasons - see, s 69(3) & (4) of the Supreme Court Act 1970). Errors of law on the face of the record need not be errors going to jurisdiction. [5] 2. In Pham v NRMA Insurance Ltd (2014) 66 MVR 152 at [27] it was held (per Leeming JA, Tobias AJA agreeing) that under the Motor Accidents Compensation Act 1999 (NSW) ('MACA') both a claims assessor's certificate and reasons form part of the record, by reason of the statute requiring reasons to be given. In Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786, Adamson J held (at [44]) that same principle applies to medical assessors' decisions in the scheme. [6] 3. As to the issue of jurisdictional error, the plaintiff says that the errors result in a constructive failure to exercise jurisdiction. 4. The Court of Appeal in Rodger v De Gelder (2015) 71 MVR 514 said at [95] (per Gleeson JA, Macfarlan and Leeming JJA agreeing): "Jurisdictional error includes a constructive failure to exercise jurisdiction. A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Yusuf at [41] per Gaudron J." 1. The question here is whether there is relevant error of law on the face of the record or jurisdictional error established that warrants quashing the decision. 2. The decision of the third review panel dated 12 May 2023. On 7 December 2022, the plaintiff was examined by two members of the third appeal panel. 3. The third review panel then stated at [19]: "Imaging studies reviewed. Mr Briggs had a hard copy of an MRI of the lumbar spine and plain x-rays of the thoracic and lumbar spine performed on 14 August 2018. The MRI of the lumbar spine was provided to the Panel on a CD-ROM and previously reviewed. The CD was returned. Mr Briggs also made reference to an MRI of the cervical spine performed he believes in late 2019. This was not available. The plain x-rays of the neck and low back are normal for age. The MRI of the lumbar spine was reviewed and selective images copied. There is a high intensity zone seen in the outer annulus of the L4/5 intervertebral disc in a single para-axial sagittal view. The image slices are taken at 3 mm intervals. Slice count confirms it is posterolateral on the left-hand side at roughly 4:30 position. This cannot be visualised on the transverse images or the coronal images. The L4/5 disc itself has good height and outline but slight posterior annular bulging. The nuclear signal is darker on the T2-weighted images than the adjacent L3/4 and L5/S1 discs. In all the MRI shows only mild degenerative changes for a 38-year-old male. The high intensity zone is on the left side, the minor clinical findings on examination are on the right." 1. At [25] and [26], the third review panel in relation to the cervical and lumbar spine stated: "Mr Briggs has persistent symptoms in his cervical and lumbar spine The cervical spine is the less troublesome of the two. The present clinical examination does not find any physical signs warranting impairment with would place him in any other category than DRE 1 for the cervical spine. The Panel finds there was a minor injury to the cervical spine; this is still symptomatic from time to time. The lumbar spine examination is generally good but the examiners did pick up the presence of restricted movement, muscle spasm and local tenderness in the right erector spinae mass on the combination of rotation and side bending to the left. The Panel found there was a minor injury to the spine; this is still symptomatic from time to time. The thoracic spine is asymptomatic, with completely normal examination; there is no evidence of injury. The Panel was asked to determine whether the L/5 disc bulge reported on the MRI and the high intensity zone (described as an annular fissure/annular tear) were injuries caused by the motor vehicle accident. The PIG specifically notes that the presence of morphological variation in spinal imaging studies do not make the diagnosis, and that some finding studies are normal for age. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a ORE category. The L4/5 disc bulge clearly fits this caveat. It is a typical finding in a 38-year-old male without back pain and without structural injury. His injury would be described as a soft tissue injury. Much has been made of the findings of a high intensity zone in the outer fibres on the left side of the posterior annulus of the L4-I.5 intervertebral disc. … Since the annulus fibrosus of the intervertebral disc has a very similar structure to ligaments of synovial joints the inference put forward is that this represents a partial rupture of (joint) ligaments. Further discussion is warranted to clarify the inferences we cannot make about this radiological finding. The Panel wish to present a summary of what is known without specifically referencing particular sources. The literature is large and of uneven quality, it is possible to cherry-pick references to support any particular prejudice. Only the peer-reviewed literature is considered. The bright signal seen on the T2-weighted image and described as an annular fissure by the radiologist and an annular tear by Dr Booker is a high intensity zone (HlZ). The signal indicates a high water content in a small part of a tissue (the ligament like fibrous annulus) that normally has a low water content, but of itself, does not tell us why the water content is high. It may be an acute trauma response, it may be some other form of inflammatory response, it may be penetration of nuclear material, it may be tissue degeneration in particular mucoid degeneration, which is commonly seen in the ligaments and tendons as part of ageing. It may be delamination, also a normal feature of connective tissue degeneration. It may be a pain source or it may not. The use of the term annular fissure/tear is common but it implies that more is known about the cause then can be a inferred from the MRI. If the signal extends over several of the image slices in a circumferential manner the term circumferential annular fissure is probably correct. This is known to be degenerative. Mr Briggs's HIZ is only seen in one of the image slices. We know nothing more about it other than it is somewhat to the left of midline. Since the nerve supply to the left hand side of the annulus comes from left sided nerves then the perception of pain should also be on the left side: Mr Briggs's pain is predominantly right-sided. HIZ are commonly seen in epidemiological MRI studies. These are studies made of people of various ages who do not suffer from low back pain. Individually, the studies show an incidence of HIZ between 10 and 50%. The numbers in the studies are usually 20 to 50 subjects and are too small for confidence about the true incidence. If all the published results are combined in meta-analysis, we find that the incidence of HIZ in asymptomatic spines is about one in four at age 35 and doesn't change much with increasing age. The other features of normal spinal ageing (disc bulges, annular dehydration, loss of disc space height etc) as seen by MRI have about the same incidence at age 35, but became more frequent with increasing age as one would expect. (Mr Briggs also has annular dehydration and disc bulge). It is therefore likely that HIZ appear as part of normal spinal ageing, but are repaired/resolved, or at least ceased to be detectable, with time. HIZ are slightly more common in people with chronic back pain. However, the incidence is strongly related to all of the other features of intervertebral disc ageing. In short if you have chronic low back pain you are more likely to have HlZ, but you are also more likely to have annular dehydration, disc bulges to the point of disc protrusion, disc space narrowing and all the other changes of ageing more severely than a control subject of the same age without back pain. Indeed, in comparisons of the frequency of age-related changes in the lumbar spine subjects under 50 with back pain, compared to those without back pain, there is a relative odds ratio which is around -2. This means that effectively, HIZ are less frequently seen in chronic low back pain young patients. By comparison the odds ratio for an intervertebral disc herniation with sciatica is above +5. This makes sense if HlZ are transitory phenomenon. Annular fissures also have a slightly negative ratio. Back pain becomes more common as one gets older, though the character of the pain changes from intermittent and incapacitating to constant and activity limiting. The most reliable predictor of radiological changes of spinal ageing is family history. Some people have ageing changes in their teens and some people have remarkably youthful-looking spines in their 70's. The close relatives will likely have a similar degree of ageing change on imaging. The concordance in identical twins is over 75%. HIZ are also seen in people with acute onset low back pain on MRl's performed within the first 36 hours of back pain onset. This is before the time required for an MRI to show a bright signal in other equivalent tissues that are known to be injured at a specific time, for example anterior cruciate ligament rupture in the knee. These studies necessarily have limited patient numbers, but the authors conclude that the HlZ must predate the Onset of the back pain. Follow-up studies on the natural history of HIZ are also limited in subject numbers and duration. They show that some HIZ resolve, some don't change appearance, and some get a little worse, irrespective of the clinical course of the back pain, for instance HIZ size may increase as the back pain resolves and vice versa. When originally described in candidates for spinal surgery with chronic low back pain it was hoped that the presence of HIZ would have a high agreement with discography and be a useful predictive prognostic indicator for surgical succes. Alas this is not so. HIZ therefore have very limited utility in the management of back pain. They do not predict surgical outcomes. They do not indicate that an injury has occurred. They do not give any useful guide as to what the management should be in practice we can only confidently determine the cause of back pain in about 15% of sufferers. Unfortunately, patients like certainty and are likely to grasp onto a simple explanation like "annular tear" or "slipped disc", with all the pejorative implications it carries. 26.Summary of injuries referred by the parties The following injuries WERE caused by the motor accident: Cervical spine — soft tissue injury. Lumbar spine — soft tissue injury. The following injuries WERE NOT caused by the motor accident: · Left shoulder blade · Right shoulder blade · Thoracic spine · Left leg · L4/5 disc bulge — incidental radiological finding. · Annular fissure/tear — incidental radiological findings The following injuries caused by the motor accident have resolved. · Right knee soft tissue injury." 1. The third review panel correctly recorded that this is a complicated dispute. Of significance in all of the review, what was in dispute was firstly the Assessor's consideration of the lumbar spine, particularly the significance of the annual tear reported on imaging and whether this constituted "a complete or partial rupture of tendons, ligaments, menisci or cartilage. If it did, then the injury would not be minor, now the "threshold" under the Act. Judicial grounds of review 1. Judicial ground 1: In relation to the finding as to the causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In particular, the third defendant failed: 1. to assess causation as required by the Motor Accident Guidelines 2017 ('the guidelines') and the common law. 2. address the question of causation on the balance of probabilities. 3. to take into account all relevant evidence as required by clause 5.6 of the guidlines 2017, and in light of all that material and in accordance with cl 6.6 and 6.7 of the guidelines, the panel failed to make "a non-medical informed judgement" as to whether it was likely that the motor accident caused or contributed to the plaintiff's injury. 1. The third review panel was required to assess causation of injury as required by the guidelines and the common law. 2. The guidelines are made pursuant to section 10.2 of the Act. Section 1.6(5) provides that "the Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act." Part 5 of the guidelines contains the provisions for assessment of threshold injury disputes. Clause 5.6 provides: 5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from: (a) a comprehensive accurate history, including pre-accident history and pre-existing conditions (b) a review of all relevant records available at the assessment (c) a comprehensive description of the injured person's current symptoms (d) a careful and thorough physical and/or psychological examination (e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination. 1. Clauses 6.5 – 6.7 of the guidelines set out the principles relating to assessment of causation of injury, that medical assessors must apply. Although the clauses are contained in the part of the guidelines dealing with assessment of permanent impairment, Wright J held in Briggs (No. 2) that there was "no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries" (at [35]). The clauses provide: 6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of 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 the Personal Injury Commission) in considering such issues. 6.6 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: The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 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. 6.7 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. In Briggs (No. 2), Wright J set out some fundamental principles of how medical assessors are required to approach the question of causation in accordance with the guidelines (in the context of errors made by the second review panel). His Honour said, at [75] – [77]: 75. This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg's condition. This required, not a consideration of material derived as a result of an internet search for "all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain", but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from: (1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions; (2) a review of all relevant records available at the assessment; (3) a comprehensive description of the injured person's current symptoms; (4) a careful and thorough physical examination; and (5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination. 76. In Mr Briggs's case that would include, without attempting to be exhaustive: (1) Mr Briggs's age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain; (2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and (3) Mr Briggs's circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident. 77. In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made "a non-medical informed judgement" as to whether it was likely that the motor accident caused or contributed to Mr Briggs's injury in question." 1. The third review panel went on to note that the high Intensity zone ('HIZ') is commonly seen in MRI studies including in people who do not have back pain (SHJ-528). Further, "HIZ are also seen in people with acute onset low back pain on MRl's performed within the first 36 hours of back pain onset" (SHJ-529). However, the review panel concluded "that the HIZ must predate the onset of the back pain" (SHJ-529). This last finding is the basis for judicial review ground 4. 2. The third review panel then concluded that "HIZ therefore have very limited utility in the management of back pain. They do not predict surgical outcomes. They do not indicate that an injury has occurred. They do not give any useful guide as to what the management should be. In practice we can only confidently determine the cause of back pain in about 15% of sufferers." 3. The third review panel's decision on causation was based wholly on its findings that radiological changes cannot be scientifically proven to be traumatically caused. 4. The third review panel concluded that the plaintiff sustained a soft tissue injury to the lumbar spine in the accident, but did not sustain the injuries referred for assessment, being "L4/5 disc bulge - incidental radiological finding, and Annular fissure/tear- incidental radiological findings" (at SHJ-529]). 5. In conducting its assessment, the third review panel failed to consider all of the evidence referred to by Wright J in the above passage from Briggs (No. 2). In particular, the review panel failed to consider any of the following matters that Wright J had identified as being necessary considerations in this particular case: 1. The plaintiff's age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain. The panel failed to consider that the plaintiff was young, with no prior history of back pain. 2. The particular nature and extent of the accident and the forces that would have been operative on the plaintiff as a result of the accident. The panel did not consider this at all. 3. The plaintiff's circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident. While the panel made some reference to the post-accident history, the panel did not factor this into its determination of causation at all; instead determining causation wholly on the basis its consideration of whether radiological changes could be proven to be traumatically caused. 1. The third review panel failed to take into account all relevant evidence as required by clause 5.6 of the guidelines, and in light of all that material and in accordance with cll 6.6 and 6.7 of the guidelines, the panel failed to make "a non-medical informed judgement" as to whether it was likely that the motor accident caused or contributed to the plaintiff's injury. 2. In relation to the finding as to causation of the injury to the lumbar spine, the third review panel asked itself the wrong question and applied the wrong test. In the same way that the second review panel had fallen into error, the third review panel failed to address the question of causation on the balance of probabilities, instead requiring that the claimant establish causation of the disc injury to the level of medical certainty, rather than on the balance of probabilities. 3. In Briggs (No. 2), Wright J said at [69] – [73]: 69. The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg's pain and disability, causation had not been established. 70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing): 138 Whether the Hospital's negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce's worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]: An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference. 71. The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238 as follows, at 242: … it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try. 72. Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140]. 73. The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel's reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined. 74. For the reasons set out above, the review panel failed to deal with the issue of causation according to law, and, in doing so, constructively failed to exercise its jurisdiction. Resolution 1. I agree with the plaintiff's submissions that explain why the third review panel did not correctly address the issue of causation. This constitutes a constructive failure to exercise jurisdiction. 2. I disagree with the plaintiff that the third review panel failed to address all of the matter identified by Wright J in Briggs (No. 2), as necessary considerations. It did consider the relevant medical history at the time of the accident and that there was no prior history of prior back complaints. Judicial ground 2 1. The third review panel relied on the Motor Accident Guidelines (Permanent Impairment Guidelines - incorrectly referred to by the panel as the "PIG") to support a finding that the plaintiff's injury was a threshold injury. In so relying on those guidelines, the third review panel fell into error as follows: 1. The part of the guidelines relied upon by the panel (cl 6.121) dealt specifically with making a diagnosis of DRE category impairment for the purposes of calculating whole person impairment in the spine, rather than an assessment of a threshold injury dispute. DRE categories are not relevant to threshold injury disputes, and cl 6.121 was not relevant to the review panel's determination. In relying on that clause in its determination, the review panel had regard to irrelevant considerations, which is jurisdictional error. 2. In the alternative, if cl 6.121 was relevant, the review panel failed to explain why it was relevant, and in doing so failed to expose its actual path of reasoning, which is an error of law on the face of the record. 3. It relied on the part of cl 6.121 that provides "In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category". The review panel found that this operated as a "caveat" against finding a causal connection between the accident and the claimed injury. In making this finding, the third review panel failed to have regard to cl 6.6, 6.7 and 6.120 of the guidelines. The review panel thereby mis-applied the relevant guidelines by finding that the imaging result could not establish a causal connection, instead of applying the correct test which was that it was necessary to base the assessment on all of the evidence rather than solely on the imaging results. This was jurisdictional error. 1. The third review panel relied on the Motor Accident Guidelines (incorrectly referred to by the panel as the "PIG" – Permanent Impairment Guidelines) to support a finding that the plaintiff's injury was a threshold injury (SHJ-527): "The Panel was asked to determine whether the L/5 disc bulge reported on the MRI and the high intensity zone (described as an annular fissure/annular tear) were injuries caused by the motor vehicle accident. The PIG specifically notes that the presence of morphological variation in spinal imaging studies do not make the diagnosis, and that some finding studies are normal for age. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category. The L4/S disc bulge clearly fits this caveat. It is a typical finding in a 38-year-old male without back pain and without structural injury. His injury would be described as a soft tissue injury. [Emphasis added]" 1. The part of the guidelines relied upon by the panel appears to be clause 6.121, which states: "6.121 While imaging and other studies may assist medical assessors in making a diagnosis, it is important to note that the presence of a morphological variation from what is called normal in an imaging study does not make the diagnosis. Several reports indicate that approximately 30% of people who have never had back pain will have an imaging study that can be interpreted as positive for a herniated disc, and 50% or more will have bulging discs. Further, the prevalence of degenerative changes, bulges and herniations increases with advancing age. To be of diagnostic value, imaging findings must be concordant with clinical symptoms and signs, and the history of injury. In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category." 1. Although some parts of the guidelines apply universally to different kinds of medical assessments (as set out by Wright J in Briggs (No. 2) regarding causation principles) there are some parts that are specific to one type of assessment. Clause 6.121 is one such clause, given that it refers to "DRE category", which is a concept that appears only in the part of the guidelines dealing with assessment of permanent impairment (for the purpose of classifying different types of injury into permanent impairment categories), and does not have relevance to minor injury disputes. 2. Given that DRE categories are not relevant to threshold injury disputes, cl 6.121 was not relevant to the review panel's determination. 3. In relying on that clause in its determination, the review panel had regard to irrelevant considerations, which is jurisdictional error. [7] 4. In the alternative, if cl 6.121 was relevant, the review panel failed to explain why it was relevant, and in doing so failed to expose its actual path of reasoning, which is an error of law on the face of the record. [8] 5. The third review panel relied on the part of cl 6.121 that provides, "In other words, an imaging test is useful to confirm a diagnosis, but an imaging result alone is insufficient to qualify for a DRE category". The review panel found that this operated as a "caveat" against finding a causal connection between the accident and the claimed injury (as extracted above). 6. In making this finding, the third review panel failed to have regard to cll 6.6 and 6.7 of the guidelines (i.e, made an error in its approach to causation as identified in Ground 1). 7. The panel also failed to have regard to cl 6.120 of the Guidelines which provides: "6.120 The assessment should include a comprehensive accurate history, a review of all relevant records available at the assessment, a comprehensive description of the individual's current symptoms, a careful and thorough physical examination and all findings of relevant diagnostic tests available at the assessment. Imaging findings that are used to support the impairment rating should be concordant with symptoms and findings on examination. The medical assessor should record whether diagnostic tests and radiographs were seen or whether they relied on reports." 1. The review panel thereby misapplied the relevant guidelines by finding that the imaging result could not establish a causal connection, instead of applying the correct test, which was that it was necessary to base the assessment on all of the evidence, rather than solely on the imaging results. This was jurisdictional error. Resolution 1. I agree with the plaintiff's submissions that the third review panel applied the wrong guideline that refers to DRE categories. The correct guidelines were clauses 6.6. and 6.7. Issue 1. The plaintiff also refers to guideline clause 6.120. The same subject matter (although not that guideline) was referred to in Judicial Ground 1. The third review has made jurisdictional errors. Judicial Ground 3 1. Judicial ground 3 is that the third review panel purported to redefine or otherwise alter the nature of the claimed injury, without notice to the parties, and without giving the parties an opportunity to be heard. This was a denial of procedural fairness, and thus jurisdictional error. 2. The review panel concluded (SHJ-530): As discussed in detail above, the Panel reiterates its finding that "L4/5 disc bulge" and "Annular fissure/tear'', (or the alternative term of high intensity zone"), are radiological findings. They are not "injuries" in the medical sense. Also, as discussed above, the Panel finds no evidence that such radiological findings were related to the accident on 22/5/2018. 1. The failure to give the parties notice of the intention to redefine or alter the nature of the claimed injury denied the parties an opportunity to be heard in relation to the new injury determined by the panel, and in doing so failed to afford procedural fairness. This is the same kind of error committed by the first review panel and dealt with in Briggs (No. 1) at [37] – [43]. Resolution 1. I agree with the plaintiff's submissions that the third review panel determined a new injury. Judicial appeal ground 4 1. Judicial ground 4 is that the third review panel purported to conduct a meta-analysis of a number of unidentified scientific studies, which were selectively chosen by the review panel, without notice to the parties and without giving the parties an opportunity to be heard. This was a denial of procedural fairness. The plaintiff's submissions 1. The third review panel stated, "The literature is large and of uneven quality, it is possible to cherry-pick references to support any particular prejudice. Only the peer-reviewed literature is considered" (SHJ-528). 2. Having self-professed to be cherry-picking the studies it would rely on, the appeal panel then said (SHJ-529): "HIZ are also seen in people with acute onset low back pain on MRl's performed within the first 36 hours of back pain onset. This is before the time required for an MRI to show a bright signal in other equivalent tissues that are known to be injured at a specific time, for example anterior cruciate ligament rupture in the knee. These studies necessarily have limited patient numbers, but the authors conclude that the HIZ must predate the onset of the back pain. Follow-up studies on the natural history of HIZ are also limited in subject numbers and duration. They show that some HIZ resolve, some don't change appearance, and some get a little worse, irrespective of the clinical course of the back pain, for instance HIZ size may increase as the back pain resolves and vice versa." 1. The conclusion that the high intensity changes seen on MRI scans of patients soon after onset of pain in the lumbar spine must predate the onset of the back pain, is apparently relied on by the review panel to support its finding that the plaintiff's HIZ must have pre-dated the accident. 2. There have been a number of cases (including Briggs (No. 1)) where it has been held that a review panel has denied procedural fairness to the parties by relying on scientific studies, without notice. [9] 3. In Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457; 98 MVR 77, I held that there was no error in a review panel referring to "many studies" without naming the studies, as it would be accepted as basic medical knowledge (at [126]). However, in that case the reference to the studies was in a single sentence, and it was held that the studies were not a critical factor in the review panel's determination in any event (at [127]). 4. The situation is very different in the present matter, where the studies were clearly the critical determinative factor, dealt with in detail over many pages, and there was plainly substantial practical injustice occasioned as a result. [10] The fact that the studies are not named does not detract from the denial of procedural fairness in this case, especially where the third review panel acknowledges having been selective in its choice of references. 5. The conclusion reached by the panel, based on its cherry-picked meta-analysis of a number of unidentified scientific studies, was done without notice to the parties and without giving the parties an opportunity to be heard. This was a denial of procedural fairness, as set out in Ground 3 above, and in Briggs (No. 1) and the cases that have subsequently applied the same principles regarding failure to give parties an opportunity to be heard before scientific studies are relied upon as a foundation for decision making. Resolution 1. I have carefully read and considered the plaintiff's submissions. Having been the judicial officer who decided (Briggs (No. 1)). I have some familiarity with the subject matter. 2. I accept that the third review panel referred to unnamed peer reviewed articles. They are not articles which only deal with common medical knowledge, but rather specific scientific knowledge. In these circumstances, parties should have been afforded procedural fairness by referring them to the peer reviewed articles, it had relied upon and asked them for comments on them. Conclusion 1. I have carefully considered and analysed the plaintiff's submissions. I agree with them. Judicial grounds 1, 2 and 4 grounds of the judicial review are made out. 2. I have added my additional reasoning. In relation to causation, I accept that the review panel's decision depends, to a large extent on the medical practitioner's experience, knowledge and clinical experience, but in reaching its opinion it has to also comply with its statutory duties and the guidelines. In Briggs (No. 2), Wright J set out what these requirements were. It appears that the Review Panel after stating it cannot make a finding about the radiological finding, moved on to discuss the significance of the bright signal seen on the T2 weighted image described as an annular tear by the radiologist. The review panel relied on analysing the peer review literature that was not identified, but should have been to determine that the annular fissure pre-dated the accident. This was said by Wright J in Briggs (No. 2) at [71]—[72], set out earlier in this judgment. 3. There have been errors of law on the face of the record and jurisdictional errors. The decision of the review panel dated 12 May 2023 is set aside. 4. The matter is remitted to the Personal Injury Commission to be dealt with according to law. While I rarely make any recommendations, here I recommend that the matter be remitted to a differently constituted Review Panel. Costs 1. Costs are discretionary. As the plaintiff's application was unopposed, I reserve costs. THE COURT ORDERS THAT: 1. The third review panel made errors of law on the face of the record and jurisdictional errors. 2. The decision of the review panel dated 12 May 2023 is set aside. 3. The matter is remitted to the Personal Injury Commission to be dealt with according to law. It is recommended that the matter be remitted to a differently constituted Review Panel. 4. Costs are reserved. ********** Endnotes 1. Briggs v IAG Limited [2020] NSWSC 1318. 2. Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372; 100 MVR 232. 3. Section 7.23(2). 4. Section 7.26(6); Frost v Kourouche (2014) 86 NSWLR 214 at [9]. 5. Garcia v MAA (2009) 54 MVR 102 at [21]-[24]; see also the discussion in Kirk v Industrial Court of NSW (2010) 239 CLR 531at [78]-[90] and [66]-[70]. 6. Gargoura considered the MACA, which preceded the current Act; however, the obligation to give reasons in s 61(9) of the MACA is relevantly the same as s 7.23(7) of the current Act. 7. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [69]. 8. Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55]. 9. Dagher v IAG Limited t/as NRMA Insurance [2020] NSWSC 1467; Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558; 94 MVR 341 94 MVR 188; Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13; 95 MVR 73; Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804; 96 MVR 456. 10. Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [41]. 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: 11 January 2024