Supreme Court New South Wales Medium Neutral Citation: Lithgow v Insurance Australia Ltd trading as NRMA Insurance [2017] NSWSC 1104 Hearing dates: 15 August 2017 Decision date: 21 August 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the further amended summons filed on 15 August 2017. (2) Order the plaintiff to pay the defendants' costs. Catchwords: ADMINISTRATIVE LAW – judicial review – whether there could be a medical dispute under s 58(1)(a) or (b) of the Motor Accidents Compensation Act when no claim for treatment expenses – held – no requirement for claim – Authority obliged to refer dispute for medical assessment under s 60 of Motor Accidents Compensation Act once dispute found ADMINISTRATIVE LAW – judicial review – reasons of assessor which set out materials considered, findings on examination and history taken adequate to demonstrate performed assessment as required by legislation Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 44, 57, 58, 60, 61, 62, 63, 131, 132, 133, Pt 3.4 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 Scott v Insurance Australia Ltd t/a NRMA Insurance [2015] NSWSC 1249; (2015) 72 MVR 300 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Category: Principal judgment Parties: Susan Lithgow (Plaintiff) Insurance Australia Limited trading as NRMA Insurance (ABN 110000 16722) (First Defendant) State Insurance Regulatory Authority (Second Defendant) Jane Probert in her capacity as the Proper Officer of the State Insurance Regulatory Authority (Third Defendant) Michael Ryan in his capacity as a medical assessor for the State Insurance Regulatory Authority (Fourth Defendant) Representation: Counsel: F Austin (Plaintiff) M Robinson SC/J Gumbert (First Defendant) Solicitors: Gerard Malouf & Partners (Plaintiff) Sparke Helmore Lawyers (First Defendant) Crown Solicitor's Office (Second, Third and Fourth Defendants) File Number(s): 2017/110124 Judgment Introduction 1. By amended summons filed on 27 July 2017 Susan Lithgow (the plaintiff) sought orders pursuant to s 69 of the Supreme Court Act 1970 (NSW) in respect of the following decisions: 1. the decision of Tiffany Brinkworth, acting for the Proper Officer, Jane Probert (the third defendant or the Proper Officer), of the State Insurance Regulatory Authority (SIRA or the second defendant) made on "12 December 2016 and/or 12 January 2017" to refer the first defendant's application as a treatment dispute to the SIRA medical assessor, Michael Ryan (the fourth defendant); 2. the decision of Mark Fowler, an officer of SIRA, made on 20 October 2016; 3. the medical assessment certificate of medical assessor, Dr Ryan, dated 7 February 2017. 1. The orders sought in the amended summons are: "1. [Deleted] 2. An order granting leave to extend time to commence proceedings to 11 April 2017 pursuant to Part 59 Rule 10 of the Uniform Civil Procedure Rules 2005. 3 An declaration that the decision of the third defendant made on 20 October 2016 to accept the application for further medical assessment as an application for assessment of a treatment dispute was made contrary to law. 4 An order in the nature of certiorari setting aside the decision of the third defendant made on 20 October 2016. 5 A declaration that the decision of the third defendant made 12 December 2016 and / or 12 January 2017 to refer the matter as a treatment dispute to the fourth defendant was made contrary to law. 6 An order in the nature of certiorari setting aside the decision of the third defendant made 12 December 2016 and / or 12 January 2017 to refer the matter as a treatment dispute to the fourth defendant under s 58(1)(b) of the Motor Accident Compensation Act 1999 (NSW). 7 A declaration that the Medical Assessment Certificate and statement of reasons of the fourth defendant dated 7 February 2017 is void and or no effect. 8 An order in the nature of certiorari setting aside the Medical Assessment Certificate of the fourth defendant dated 7 February 2017. 9 An order in the nature of mandamus remitting the first defendant's application for further medical assessment under s 62(1)(a) of the Motor Accident Compensation Act 1999 (NSW) to the third defendant to be dealt with according to law. 10 Costs." 1. Unless otherwise stated all references to legislative provisions in these reasons are references to the Motor Accidents Compensation Act 1999 (NSW) (the Act). 2. Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that proceedings for judicial review must be commenced within 3 months of the date of the decision. Notwithstanding the form of the summons, in substance the plaintiff complains only about two matters: the referral by SIRA to Dr Ryan on 12 January 2017 and the certificate given by Dr Ryan on 7 February 2017. These proceedings were commenced by the filing of a summons on 11 April 2017. In these circumstances, I regard the proceedings as having been brought within time. Accordingly, the plaintiff does not require an extension of time. 3. I propose at the outset to summarise the legislative framework. The legislative framework 1. SIRA is a State government agency which administers the compulsory third party insurance and compensation scheme under ss 62 and 63 of the Act. The "proper officer" of SIRA is an employee designated as such under the Act pursuant to s 62(1B). Proper officers are authorised under the Act to make decisions concerning whether a medical assessment should be referred to medical assessors in SIRA's Medical Assessment Service (MAS). 2. Part 3.4 of the Act relevantly provides: "57 Definitions In this Part: medical assessment matters means any of the matters referred to in section 58. medical assessor means a person appointed under this Part to make an assessment under this Part. medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part. medical dispute means a disagreement or issue to which this Part applies." 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, (c) (Repealed) (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e) (Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. . . . 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors." 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. . . . 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency." 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. . . . (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. . . ." 1. A person, who is otherwise entitled to damages under the Act, is not entitled to damages for non-economic loss unless the degree of permanent impairment is greater than 10%: s 131. Where there is a disagreement about the degree of permanent impairment suffered, the Court may not award damages for non-economic loss unless the degree of permanent impairment has been assessed by an assessor, who conducts an assessment of the degree of permanent impairment in accordance with s 133: s 132. 2. Section 133 relevantly provides: "133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. . . ." 1. As referred to above, where there is a disagreement between the claimant and the insurer as to "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%", Part 3.4 of the Act applies: s 58(1)(d). Background facts 1. The plaintiff claimed damages against Insurance Australia Ltd t/as NRMA Insurance, the first defendant (the NRMA), for injuries, including an injury to her lumbar spine, which she alleged were sustained in the course of a motor accident on 19 March 2012. The NRMA is the compulsory third party insurer of the vehicle at fault in the subject motor accident and has admitted liability. 2. On 12 July 2014, the plaintiff underwent a single level (L5/S1) spinal fusion. At the time the surgery was not the subject of a "treatment dispute" as to whether it was "reasonable and necessary" within the meaning of s 58(1)(a) or whether it related to the injuries sustained in the motor accident under s 58(1)(b) as the plaintiff did not claim the cost of the surgery from the NRMA. 3. On 8 October 2015 Dr Bodel carried out a medico-legal assessment of the plaintiff. He opined that the plaintiff had a "disc rupture at the lumbosacral junction caused by the motor vehicle accident". He assessed the plaintiff as having a whole person permanent impairment (WPI) of 22%. 4. Subsequently a dispute arose under s 58(1)(d) as to whether the degree of WPI that was a result of the injury caused by the motor accident was greater than 10%. On 30 November 2015 the plaintiff applied to the MAS to be assessed for permanent impairment by lodging a MAS Form 2A. 5. On 19 April 2016, the plaintiff was assessed by a SIRA medical assessor, Dr Kenna, pursuant to ss 58(1)(d), 60, 61, and 133 to determine any permanent impairment. Dr Kenna concluded that the plaintiff's lumbar spine injury was caused by the accident and that the plaintiff's resultant WPI was 22%. In his MAS certificate dated 6 May 2016, Dr Kenna listed the injuries to be assessed as follows: "lumbar spine – soft tissue injury/ significant disc pathology at L5/S1/ minor disc pathology at L4/5/ aggravation of degenerative changes". 1. Dr Kenna certified that the plaintiff had suffered from a number of injuries caused by the motor accident, including: "lumbar spine – soft tissue injury, disruption of L5/S1 mobile segment resulting in a one level fusion". 1. This finding in Dr Kenna's certificate is significant for reasons which will appear below. 2. On 16 May 2016 a combined certificate was issued in respect of the plaintiff in which Medical Assessor Kathryn Williamson certified that the plaintiff's combined permanent impairment was 22%. 3. On 28 June 2016 the NRMA lodged an application for review of a medical assessment (MAS Form 5A). It relied on pre-accident complaints of back pain made by the plaintiff to her general practitioner as well as the report dated 18 March 2013 of Dr Harvey-Sutton who opined that the plaintiff did not require surgery as a result of the injuries sustained in the motor accident. On 9 August 2016 the Proper Officer issued a statement of reasons for the following determination: "I am not satisfied that there is reasonable cause to suspect that the medical assessment is incorrect in a material respect. The review application is dismissed." 1. By application dated 13 September 2016, the NRMA lodged an application for further assessment of a permanent impairment dispute by the MAS (Form 4API). It appears from the wording of the application that it was made pursuant to s 62(1)(a) on the grounds of "additional relevant information about the injury". The ground specified in the form for the application was: "There is additional relevant information about the injury or injuries sustained in the motor vehicle accident and this additional information is capable, if the matter was to proceed to further assessment, of altering the outcome of the dispute from that certified in the previous assessment." 1. In support of its application, the NRMA relied on the reports of Dr Harvey-Sutton dated 27 June 2016 and 26 August 2016 in which she reiterated her opinion that the plaintiff did not require surgery as a result of the injuries sustained in the motor accident. The NRMA also relied on two medical certificates from 2006 which had not been available earlier which recorded prior complaints of back pain by the plaintiff. 2. On 20 October 2016, the team leader for the Proper Officer wrote a letter to the parties informing them that the Proper Officer proposed to accept the application for further medical assessment as an application for assessment of a treatment dispute and invited the parties to make submissions on the proposal. Because of the significance of the letter to the proceedings it will be set out in full: "I refer to the above matter, which is currently the subject of an application for further medical assessment. The matter has been provided to the Proper Officer for determination. Upon initial viewing of the file, and in particular the submissions from both parties, it is apparent that the permanent impairment dispute hinges on the lumbar spine surgery undertaken by the claimant on 12 July 2014. On this issue, the applicant submits that the surgery was not causally related or reasonable and necessary. In contrast, the respondent submits that it was both causally related and reasonable and necessary. Whether the treatment undertaken was causally related and reasonable and necessary is, by its very nature, likely to have an effect on the outcome of any dispute in relation to whole person impairment (WPI). I note that this matter has previously been assessed at MAS in relation to WPI, but that the issue of whether the treatment undertaken by the claimant was not a dispute the parties sought to have assessed at that time. Consequently, the applicant is essentially asking the Proper Officer to make a determination on an application for further medical dispute in relation to a treatment dispute that has not previously been referred to MAS for assessment. In order for this issue to be determined one way or the other, the Proper Officer proposes to accept the application for further medical assessment as an application for assessment of a treatment dispute. This will allow the parties to have a binding certificate in relation to the treatment dispute, which they may not have if the matter is merely treated as a dispute in relation to WPI. The treatment dispute would therefore be referred to a Medical Assessor as follows: 1. Whether the lumbar spine surgery undertaken by the claimant on 12 July 2014 was causally related to the subject accident. 2. Whether the lumbar spine surgery undertaken by the claimant on 12 July 2014 was reasonable and necessary in the circumstances. Having MAS make a determination in relation to the treatment issue should assist the parties in resolving their dispute in relation to WPI. Should the matter be accepted as a treatment application and assessed at MAS, and should a dispute still exist in relation to WPI after the determination, the parties may then consider making submissions to the Proper Officer in relation to an application for further medical assessment. If the application was accepted, it could be referred back to the same Medical Assessor and be conducted on the papers to avoid any further inconvenience to the claimant. The Proper Officer would, of course, still need to be satisfied that any such application met the test established by section 62 (1A) of the Motor Accidents Compensation Act 1999. The Proper Officer is inviting submissions on the above proposal from both parties. The applicant is to lodge any submissions by close of business Friday 4 November 2016. The respondent will then be provided with an opportunity to respond by close of business Friday 18 November 2016. The matter will then be referred to the Proper Officer again to determine how it should proceed and the parties will be advised in due course." 1. The NRMA said, in its response, dated 1 November 2016, which it forwarded to the plaintiff's solicitors on the same day: "The applicant insurer agrees to the proposal that the matter should proceed as a treatment dispute in order to determine the issue. The applicant insurer agrees that a further medical assessment should take place to determine this treatment dispute." 1. On 18 November 2016, the plaintiff, in her response to the request for submissions from the Proper Officer's representative proposing the matter to proceed to a treatment dispute, agreed that a treatment dispute existed and that the matter should be referred for assessment as a treatment dispute. The plaintiff said further: "The Respondent Claimant submits that the matter should only proceed as a treatment dispute on the basis of the second question proposed by you. We submit that the two questions involve different considerations. The first involves a question of factual causation based on common sense, the second involves considerations of costs vis-a-vis , therapeutic benefits etc. Dr Harvey Sutton does not appear to appreciate this point. We submit that Assessor Kenna has already dealt with the issue of causation and the surgery in the context of the assessment of WPI. He specifically found that the claimant had suffered an injury ("disruption") to her L5/S1 disc. We also refer to the findings and opinions of Assessor Kenna set out in point 6 under the heading 'Conclusions'; and in particular his opinion that the injuries "are consistent with the stated cause- MVA 19/3/2012"; his opinion that "there is a causal link between the motor vehicle accident of 19 March 2012, the commencement of spinal pain with distal referred symptoms as noted by both her treating general practitioner as well as [the] neurosurgeon"; and finally his opinion that "the motor vehicle accident contribution was significant, from the viewpoint of onset of spinal pain and level of disability ultimately leading to the requirement for an operative procedure". The simple fact is that the injury to the L5/S1 disc (as found by Assessor Kenna) and consequent symptomology (as found by Assessor Kenna) resulted in the surgery, whether or not it was the right medical decision. With the greatest respect to the insurer, it is seeking to undermine the WPI assessment of Assessor Kenna, utilising a back door approach. The referral of the matter back for assessment on the question of causation would amount to an error of law. In this regard, Dr Harvey Sutton's opinion in her 2016 report on injury and pre-existing complaints (and it must follow causation regarding surgery) is merely a rehash of her earlier 2013 opinion, which was considered by Assessor Kenna. Her opinions in this regard are and on this issue it does not amount to additional relevant information about the injury. In support of this contention, we rely upon the decision of QBE Insurance (Australia) Ltd v Jovanovic [2015] NSWSC 241 per Garling J at [66], [69] - [77]. If you are against us on this point then we consider it is important that the Assessor be directed to not determine injury anew, and further that the Assessor be directed to have consideration on the law regarding causation and treatment flowing from injury. In this regard we refer you to the decision of Murphy v Allity Management Services Pty Ltd [2015] NSW WCCPD 49 at [57]-[58], where it was stated: "A work injury does not have to be the only, or even substantial cause of the need for relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act... [The Applicant] only has to establish, applying the common sense test of causation (Kooragang Cement Pty Ltd -v- Bates (1994) 35 NSWLR 452]; that the need for treatment is reasonably necessary "as a result of" the injury. That is, [he] has to establish that the injury materially contributed to the need for surgery". Although this decision involved a consideration of treatment under the Workers Compensation Act, 1987, the test is the same. This said we do accept that Assessor Kenna did not consider and make findings as to whether or not the surgery was reasonable and necessary and in this respect the matter should be referred back for assessment as a treatment dispute." 1. By letter dated 12 December 2016, SIRA (by letter signed by Ms Brinkworth for the Proper Officer) informed the parties as follows: "The treatment dispute will be referred to a Medical Assessor as follows: 1. Whether the lumbar spine surgery undertaken by the claimant on 12 July 2014 was causally related to the accident. 2. Whether the lumbar spine surgery undertaken by the claimant on 12 July 2014 was reasonable and necessary in the circumstances." 1. By letter dated 12 January 2017 the Proper Officer wrote to the parties, acknowledging the correspondence that the parties had sent and said: "I note that the claimant's solicitors submit that the issue of causation of the lumbar spine injury in (sic) has previously been determined by Assessor Kenna. Whilst it is true that Assessor Kenna has provided a determination about causation of the lumbar spine injury in relation to the WPI dispute, a determination in relation to Section 58(1)(b) of the Motor Accidents Compensation Act 1999 has not yet been determined by MAS. That is, whether any such treatment relates to the injury caused by the motor accident. Therefore, as outlined in our correspondence dated 12 December 2016 (copy enclosed) the treatment dispute will be referred to a Medical Assessor to determine as follows: 1. Whether the lumbar spine surgery undertaken by the claimant on 12 July 2014 is causally related to the injury sustained in the subject accident. 2. Whether the lumbar spine surgery undertaken by the claimant on 12 July 2014 was reasonable and necessary in relation to the injury sustained in the subject accident. I will advise you when the medical appointment has been made. The MAS Form 4A and 4R will be treated as MAS forms 1A and 1R. We will also provide MAS matter number 2014/02/1656 to the assessor." 1. Both parties made submissions, including on the question "whether the treatment provided or to be provided to the injured person relates to the injury caused by the motor accident". The treatment dispute was then assessed by the fourth defendant who certified, on 7 February 2017: "The following treatment, namely: - Lumbar Spine surgery undertaken by the claimant on 12 July 2014 DOES NOT RELATE TO THE INJURIES caused by the motor accident." The grounds of review 1. The plaintiff challenged the decisions referred to above on the following six grounds: "1. The third defendant erred in determining that the issue of causation as between the accident and the lumbar spine surgery on 12 July 2014 was outside the context of the Whole Person Impairment assessment by Assessor Kenna. 2 The third defendant erred in failing to determine that the Medical Assessment Certificate of Assessor Kenna dated 6 May 2016 was conclusive as to the matters it certified. 3 The third defendant erred in determining that there was a treatment dispute. 4 The third defendant erred in determining that the matter had to be referred for assessment of a treatment dispute before the whole person impairment assessment dispute could be finally determined. 5 The third defendant erred in accepting and treating the first defendant's application for further medical assessment (MAS Form 4A) as an application for assessment of a treatment dispute (MAS Form 1A). 6 The third defendant erred in going behind the medical assessment certificate of Assessor Kenna dated 6 May 2016 and referring the matter to the fourth defendant for assessment of a treatment dispute." 1. Mr Austin, who appeared for the plaintiff, confirmed that the plaintiff contended, in respect of each error alleged in grounds 1-6, that the error was jurisdictional and did not contend that any error was an error of law on the face of the record. In summary, the plaintiff's challenge turned on a narrow point. Mr Austin argued that SIRA acted outside its jurisdiction when it purported to refer a medical dispute to an assessor for medical assessment in circumstances where, although the plaintiff had made a claim for the treatment associated with her back surgery in an amount in the order of $40,000, the material before SIRA did not establish that the plaintiff had made any such claim. 2. On the morning of the hearing, the plaintiff sought to amend her summons further to add the three grounds relating to the certificate itself. Mr Robinson SC, who appeared with Ms Gumbert for the defendant, did not oppose the amendment. The additional three grounds are: "7. The fourth defendant failed to identify the injury and in doing so misconceived or misapprehended the nature of his functions and thereby failed to exercise his statutory functions. 8 The fourth defendant failed to have regard to relevant medical evidence. 9 The fourth defendant failed to adequately deal with the issue of causation." 1. In respect of these three grounds, I understood Mr Austin to rely on both jurisdictional error and error of law on the face of the record. Consideration The alleged jurisdictional fact (grounds 1-6) 1. As the plaintiff has made submissions on grounds 1-6 together, it is convenient to summarise her submissions in a global way. The plaintiff contended that there was no medical dispute relating to treatment and no medical assessment matter capable of being referred for medical assessment because SIRA did not have before it a claim by the plaintiff for medical treatment, although, in fact, such claim had been made. She also contended that the Proper Officer's satisfaction that there was a medical dispute or medical assessment matter capable of being referred for medical assessment was "a jurisdictional fact which was the precondition for referral" and that the conclusion in the present case was "not properly formed according to law". As the plaintiff confined her challenge to jurisdictional error, I understood her to contend that it was not open to SIRA to refer the matter for medical assessment. 2. As appears from the plaintiff's amended summons, she seeks orders in respect of three decisions: the first being SIRA's decision (by the Proper Officer) on 20 October 2016; the second being SIRA's decision (by the Proper Officer) made on 12 December 2016 and/or 12 January 2017 to refer the NRMA's application to a medical assessor; and the third being the medical assessment certificate of Dr Ryan dated 7 February 2017 (the 2017 Certificate). 3. This Court's jurisdiction to grant relief under s 69 of the Supreme Court Act depends on the plaintiff's establishing an error of law on the face of the record or a jurisdictional error. As referred to above, the plaintiff relies solely on jurisdictional error. In order to address the plaintiff's submissions, it is necessary to analyse what occurred in order to determine whether what was done fell within the provisions of the Act. An analysis of the events leading to the referral by reference to the Act 1. As referred to above, the NRMA applied for a further assessment under s 62(1)(a) following the issue of the certificate by Dr Kenna. SIRA proposed, in its letter dated 20 October 2016, that the NRMA's application be treated as a medical dispute under s 60 in relation to the matters in s 58(1)(a) and (b), which had not previously been referred for assessment. By its letter dated 1 November 2016, the NRMA acceded to that suggestion. Accordingly, the letter of 1 November 2016 had the effect of a referral to SIRA pursuant to s 60, there being a dispute as to whether the treatment (the back surgery) related to the injury caused by the motor accident; and whether the treatment (back surgery) provided to the injured person was reasonable and necessary in the circumstances. 2. By letter dated 18 November 2016 the plaintiff accepted the correctness of the Proper Officer's decision of 20 October 2016 to reject the NRMA's application as an application for further assessment under s 62(1)(a). She accepted the suggestion that the question whether the back surgery was reasonable and necessary (s 58(1)(a)) ought be referred for assessment but contended that the s 58(1)(b) point (whether the surgery related to the injuries sustained in the accident) ought not be referred as it had already been determined. After further correspondence, SIRA referred the medical dispute about both matters to Dr Ryan on 12 January 2017, as it was obliged by s 60(2) to do, a medical dispute having been referred to it by a party to the dispute, in this case, the NRMA. Whether the making of a claim was a "jurisdictional fact" in the context of s 60 1. I do not discern anything in Pt 3.4 or elsewhere in the Act which would warrant a gloss being applied to the words of s 60, or indeed the definition of "medical dispute" in s 57, to require treatment to be the subject of a claim for treatment expenses, much less that SIRA must have the claim documentation before it can be the subject of a medical dispute. Mr Austin was unable to point to any statutory wording to support his contention. I regard the structure and purpose of Pt 3.4 which are addressed in more detail below, as being inconsistent with any such requirement. 2. Moreover, Mr Austin's submission is contrary to Scott v Insurance Australia Ltd t/a NRMA Insurance [2015] NSWSC 1249; (2015) 72 MVR 300 (Scott), in which the primary judge, Campbell J, was not persuaded that ss 58 and 60 were limited to circumstances where a specific request for payment for treatment had been made ([84]). In that case, the relevant claim was a claim for future care. On appeal, in Insurance Australia Ltd t/as NRMA Insurance v Scott (2016) 92 NSWLR 741; [2016] NSWCA 138 (Scott CA), Ward JA considered (Basten and Gleeson JJA agreeing) that the existence of a medical dispute was not a jurisdictional fact in the sense that the matter was to be finally determined by the court ([116] and [121]). Her Honour considered at [118] that: "the only question on review of such a decision [to refer a medical dispute} would be whether there was material available on which it was reasonably open to the proper officer [who had a role under the Guidelines] to be satisfied that there was a dispute". 1. Mr Austin's submission gains no support from the provisions of Pt 3.4 to which I will now turn. The matters which may be referred for medical assessment are the three matters referred to in s 58: namely, whether treatment was or is reasonable and necessary (s 58(1)(a)); whether any such treatment relates to the injury caused by the motor accident (s 58(1)(b)); and whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10% (s 58(1)(d)). A "medical dispute" is defined by s 57 as a disagreement or issue to which Pt 3.4 applies. It can be seen from the medical assessment matters listed in s 58(1) that there is a potential for overlap between the questions whether particular treatment relates to the injury caused by the motor accident (s 58(1)(b)) and whether the degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10% (s 58(1)(d)). The present case is an example of that overlap in that back surgery may give rise to restriction of movement which, if related to an injury caused by the motor accident, is germane to the assessment of WPI. In the normal course it might be expected that the question whether particular treatment relates to the injury caused by the motor accident would be determined before an assessment of WPI. However, in the present case that did not occur since the plaintiff, at the time, made no claim for the cost of the surgery from the NRMA. Accordingly, no issue arose before the assessment of WPI as to whether the surgery related to the injury sustained in the motor accident or whether it was reasonable and necessary in the circumstances. 2. As long as it was open to SIRA to consider that there was a medical dispute, being a disagreement about a matter under Pt 3.4, SIRA was obliged under s 60(2) to refer it for medical assessment. There was plainly such a dispute in the present case as to the causal connection between the surgery and the back injury sustained in the accident and whether the surgery was reasonable and necessary. In these circumstances, SIRA was obliged to refer it. None of grounds 1-6 has been made out. 3. I note for completeness that s 60 does not, in terms, require any decision. It does not confer any role on the proper officer. Unlike ss 62 and 63, the proper officer does not play any "gateway" function. The authorities concerning ss 62 and 63 caution that the gate-keeper function performed by the proper officer when making a determination, such as on an application for a review of a medical assessment to a review panel (s 63), ought rarely be the subject of judicial review: Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171 at [5], [7] and [10] (Basten JA). Having regard to the differences between s 60 on the one hand and ss 62 and 63 on the other, judicial intervention in relation to a referral under s 60 is even less likely to be warranted than under ss 62 or 63. 4. Nonetheless, as Basten JA said in Dominice v Allianz Australia Insurance Ltd, an analysis needs to be undertaken to ascertain the effect of the decision or conduct sought to be impugned in order to determine whether a party's rights have been ultimately affected. For example, in the present case, the insurer accepted that if SIRA had refused to refer the medical dispute for assessment, it would arguably have been open to the NRMA to seek relief under s 69 of the Supreme Court Act to require SIRA to refer the medical dispute, as s 60(2) imposes a statutory obligation on SIRA to refer medical disputes for assessment. However, a referral by SIRA, of itself, has no discernible effect on the plaintiff's rights and accordingly, any error would generally not entitle the plaintiff to relief: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at 159 (Brennan CJ, Gaudron and Gummow JJ). 5. In Scott CA Basten JA said at [7]-[9], of the referral for medical assessment under Pt 3.4: "[6] Medical assessment occurs under Ch 3 Pt 3.4. The term "medical dispute" is defined in that Part to mean "a disagreement or issue to which this Part applies." The first issue is, thus, whether the Authority can determine whether there is a relevant disagreement or issue, or whether on judicial review the factual basis of its opinion can be reassessed by the court. [7] If the subject matter of the disagreement falls within the defined terms ofmatters which may be assessed, the existence of a "disagreement or issue" ispre-eminently a factual matter to be determined by the Authority. It wouldverge on the bizarre to think that Parliament, in establishing the administrativescheme for assessment of medical disputes, did not intend that the Authority,when correctly construing its legislation and acting reasonably, should be ableto determine whether or not there was a dispute. [8] Accordingly, I agree with the reasons given by Ward JA for upholding thisground of appeal. There being no suggestion that the opinion of the Authoritywas formed on some irrational or legally erroneous basis, the decision to referthe matter to the assessors should not have been set aside." The challenge to the certificate of Dr Ryan (grounds 7-9) 1. As can be seen from the provisions extracted above, following the assessment by an assessor of a medical dispute, the assessor is to "give a certificate as to the matters referred for assessment" (s 61(1)). The certificate as to a "medical assessment matter" is conclusive evidence in any court proceedings or in any assessment by a claims assessor (s 61(2)). It does not, however, bind other medical assessors, although it would generally be taken into account. Accordingly, when Dr Ryan assessed the medical dispute that had been referred to him, he was not obliged to accept Dr Kenna's findings of causation but was obliged to make his own assessment, based on the material before him, which included Dr Kenna's certificate and reasons. 2. Grounds 7, 8 and 9 can be dealt with together because they overlap and each turns on the way in which Dr Ryan approached his task. Mr Austin contended that Dr Ryan had "failed to engage" with the plaintiff's "case" when he performed his assessment because he had failed to identify the "injury" and failed to address the inconsistency between Dr Kenna's finding of causation and Dr Ryan's own finding. He accepted that Dr Ryan had found that the plaintiff complained of back pain after the motor accident but made no aetiological diagnosis. Although he accepted that Dr Kenna's certificate and reasons appeared on the list of material which Dr Ryan had considered, he contended that Dr Ryan was obliged to set out his reasoning process in the reasons for the certificate to show that he had actively engaged in a process of consideration and reasoning. 3. In his reasons for the certificate of 7 February 2017 Dr Ryan narrated the medical history of the plaintiff before and after the accident. He confirmed the plaintiffs pre-existing back symptoms and noted the pre-accident CT Scan of lumbar spine dated 28 August 2009. Dr Ryan recorded that the plaintiff stated that after the motor accident she developed low back pain. He stated that he considered the MAS application and supporting documents as well as the MAS reply form and supporting documents. Dr Ryan was not obliged to agree with either Dr Bodel or Dr Kenna. His reasons reveal that he made his own assessment based on the examination he conducted of the plaintiff and the history obtained from her as well as his consideration of the documents before him. He did so in the context of the task he was required to perform: to assess if the need for surgery was caused by the accident and if the surgery was reasonable and necessary. This was the correct approach: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], [55] and [56] (French CJ, Crennan, Bell, Gageler and Keane JJ). 4. On the question of causation, Dr Ryan noted the plaintiff's history that the surgery had made no difference to her symptomology and concluded that prior to the accident the plaintiff "already had significant pathology in her low back and at times disabling symptoms", and therefore the surgery was not causally related to the injury. I consider that Dr Ryan adequately set out his "path of reasoning", as required. The plaintiff has not identified any mandatory relevant consideration to which Dr Ryan has been shown not to have had regard. 5. The plaintiff has failed to make out any of grounds 7-9. 6. The parties accepted that costs ought follow the event. Orders 1. For the reasons set out above, I make the following orders: 1. Dismiss the further amended summons filed on 15 August 2017. 2. Order the plaintiff to pay the defendants' costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 August 2017