Supreme Court New South Wales Medium Neutral Citation: Smith v Insurance Australia Ltd [2018] NSWSC 1606 Hearing dates: 15 June 2018 Date of orders: 30 October 2018 Decision date: 30 October 2018 Jurisdiction: Common Law Before: Davies J Decision: (1) Summons dismissed. (2) The plaintiff is to pay the first defendant's costs. Catchwords: ADMINISTRATIVE LAW – judicial review of assessment of permanent psychiatric impairment by Motor Accidents Medical Assessment Service Review Panel – purported error of law and denial of procedural fairness in application of principles of causation – where impairment caused by accident was exacerbated by a subsequent non-indemnified event – Motor Accident Permanent Impairment Guidelines cl 1.36 - whether the subsequent event was an 'unrelated injury' – whether the assessed impairment from the unrelated injury should be deducted from the whole person impairment assessed – whether Panel required to call for submissions on matter disclosed by injured person Legislation Cited: Civil Liability Act 2002 (NSW) s 5D Motor Accidents Compensation Act 1999 (NSW) s 58 Cases Cited: Allianz Australia Insurance Ltd v Motor Accidents Authority of NSW [2011] NSWSC 102 Bhusal v Catholic Health Care Ltd [2018] NSWCA 56 Frost v Kourouche [2014] NSWCA 39 Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 GIO General Limited v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802 March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: Nil Category: Procedural and other rulings Parties: Gary Edward Smith (Plaintiff) Insurance Australia Ltd t/as NRMA Insurance (First Defendant) State Insurance Regulatory Authority (Second Defendant) A Medical Review Panel appointed by the Second Defendant (Third Defendant) Representation: Counsel: E Romaniuk SC & E Grotte (Plaintiff) K Rewell SC (First Defendant) Submitting appearances (Second &Third Defendants) Solicitors: Farrell Lusher Solicitors (Plaintiff) McCabe Curwood Lawyers (First Defendant) Crown Solicitors Office (Second & Third Defendants) File Number(s): 2018/72741 Publication restriction: Nil Judgment 1. The plaintiff seeks prerogative relief in respect of a decision of the Medical Review Panel of the Motor Accidents Medical Assessment Service. The first defendant is the compulsory third party insurer. The second defendant is the Authority which administers the scheme under the Motor Accidents Compensation Act 1999 (NSW). The third defendant is the Medical Review Panel. The second and third defendants filed submitting appearances. 2. The plaintiff had been injured in a motor vehicle accident on 27 April 2012 and had sustained both physical and psychiatric injuries. The challenged decision of the Medical Review Panel concerns his psychiatric injuries. 3. On 21 April 2017 the plaintiff was assessed by Dr Prior, who found that the plaintiff suffered from Post-Traumatic Stress Disorder and an exacerbation of Major Depressive Disorder. He determined a whole person impairment of 7%. 4. The plaintiff sought a review of the Dr Prior's assessment. The Medical Review Panel assessed the plaintiff's whole person impairment in respect of psychiatric injuries at 8%. It determined that an exacerbation of his psychiatric injuries by reason of his brother-in-law's death at Christmas 2016 was an unrelated event. The Panel assessed the plaintiff's whole person impairment taking into account the injuries sustained after his brother-in-law's death at 17%, but deducted the 9% whole person impairment percentage attributed to those subsequent injuries on the basis that the death was an unrelated event. 5. The plaintiff claims both jurisdictional error and/or error on the face of the record on the following grounds: (a) The Panel erred in its determination that the Plaintiff's psychiatic condition after the death of the Plaintiff's brother-in-law in the 2016 Christmas period was not legally and factually causally related to the 2012 motor accident, including causally related by being an event that aggravated or exacerbated the Plaintiff's post-2012 motor accident caused psychiatric condition; (b) The Panel erred in the causation test it applied. The legal and factual causation question required the Panel to determine whether the 2016 Christmas period events amounted to an aggravation or exacerbation of the Plaintiffs post-2012 motor accident caused psychiatric condition (including by way of material contribution), and if that question was answered in the affirmative, then the 2016 Christmas period events could not be "... a subsequent, unrelated event". The Panel found that the 2016 Christmas period events worsened the Plaintiff post-2012 motor accident caused psychiatric condition, and therefore the Panel's finding precluded that the 2016 Christmas period events were "... a subsequent, unrelated event". In this case, legal and factual causation (including by way of material contribution) was established in respect of the post-2016 Christmas period events; (c) The Panel erred in its application of clause 1.36 of the permanent impairment guidelines because of the error as to causation; (d) The Panel failed to state its reasons as to the causation test it was applying; (e) There was no evidence, including no probabative (sic) evidence, capable of sustaining a factual finding that the Plaintiff's psychiatic condition after the death of the Plaintiff's brother-in-law in the 2016 Christmas period "... was a subsequent, unrelated event", and there was a failure to provide reasons for that determination. (f) The Panel's determination as to causation ("... was a subsequent, unrelated event") was a finding that in the circumstances was irrational, illogical and unreasonable; (g) The Panel's assessment of the degree of whole person impairment was, as a result, in error. 1. Although, as can be seen, the grounds for review do not make reference to procedural fairness, the plaintiff's written submissions in paragraph 19 said this: The plaintiff says, alternatively, as there was no similar approach to causation and clause 1.36 in the material before the Review Panel, it was a denial of procedural fairness for the Review Panel to proceed on a basis that was decisive of clause 1.36 without calling for submissions, and this lead (sic) to a practical injustice. Had submissions been called for, the plaintiff's submissions would have identified the correct approach to causation and why, if a correct approach was adopted, the causal enquiry was answered in favour of the plaintiff. The defendant took no point that procedural fairness had not been raised as a specific ground for review. Both parties argued the matter. In those circumstances I consider that I should regard the plaintiff as having also challenged the Review Panel's decision on the basis of a denial of procedural fairness as paragraph 19 set out. The Panel's decision 1. The plaintiff was examined by the three members of the Panel on 10 November 2017. In its report the Panel detailed the plaintiff's pre-accident medical and psychiatric history, his pre-accident functioning prior to 27 April 2012, the history of the motor accident together with the subsequent symptoms and treatment, and the plaintiff's functioning after the motor accident in 2012 and prior to Christmas 2016. The Panel then detailed relevant injuries or conditions sustained since the brother-in-law's death and the plaintiff's functioning at the time of the assessment. 2. The report under the heading "Diagnosis and Causation" then said: Diagnosis and Causation The symptoms reported by Mr Smith are sufficient to meet DSM 5 criteria for Post-Traumatic Stress Disorder and exacerbation of a Major Depressive Disorder. The shock of the motor accident caused his PTSD and his depression arose from the shock of the accident and the lack of recovery of his PTSD after the accident. Mr Smith suffered from Major Depressive Disorder prior to the motor accident. He has received treatment for his condition that was assessed by the Panel as causing a pre-existing permanent psychiatric impairment of 0% WPI. The motor accident exacerbated Mr Smith's pre-existing Major Depressive Disorder and caused a new psychiatric condition of Post Traumatic Stress Disorder (PTSD). The new condition of PTSD was never suffered by Mr Smith prior to this motor accident. The Panel assessed this new condition as 8% WPI. The circumstances of his brother in law's death in December 2016 were traumatic for Mr Smith and caused a worsening of his psychiatric condition and level of impairment. This was a subsequent, unrelated event. Therefore, the level of impairment caused by the motor accident was determined by assessing his impairment prior to his brother-in-law's death. Mr Smith was a 53-year old married man living with his wife and two children. He had been involved in two serious, prior motor accidents with extensive injuries resulting in depression which was controlled by ongoing antidepressant medication. The Panel was in agreement that the motor accident on 27 April 2012 had caused an assessable permanent psychiatric impairment Mr Smith met the criteria as follows: * Direct exposure to the traumatic event. Mr Smith was the driver and sole occupant of his vehicle in the motor accident. He was trapped for several hours and had to be cut out of his vehicle by the emergency services. He was injured and admitted to hospital overnight before being discharged and reported that he became increasingly anxious and depressed in his mood. At the time of the motor accident, he was fearful as his vehicle had been filled with smoke causing him to believe that he was trapped inside his vehicle which was on fire. * Mr Smith has persistent intrusive thoughts, nightmares and flashbacks related to the motor accident and how the accident has impaired his life and his capacity to function in all roles. He reported increased feelings of hopelessness about his injuries never improving. He reported that he had decreased interest in social activities and in his children's activities. He reported that his ability to enjoy life was gone. He developed increased irritability and agitation with poor concentration and difficulty sleeping. These symptoms are ongoing at the time of this assessment. The accident had also exacerbated his pre-existing Major Depressive Disorder. He had persistently lowered mood, lowered motivation, poor concentration and difficulty sleeping. He was irritable and agitated at the time of this assessment and reported a depressed and anxious mood without the presence of psychotic symptoms. Mr Smith's psychiatric condition had continued to be treated by his local doctor, clinical psychologist and consultant psychiatrist. Mr Smith had suffered from an assessable, pre-existing psychiatric condition prior to the motor accident in 2012. He had also suffered from an assessable psychiatric condition subsequent to the motor accident in 2012 when his brother-in law died in 2016. The Panel noted that Mr Smith suffered from non-assessable psychiatric impairments such as pain. The Panel has complied with SIRA Guideline 7:15 in the assessment of each PIRS [Psychiatric Impairment Rating Scale] table of permanent impairment in this review. 1. In its determination, the Review Panel said this: The Review Panel's findings in relation to the degree of permanent impairment of the psychiatric injuries caused by the accident are different to the findings as stated in the Permanent Impairment certificate issued by Assessor Prior. While the Panel also found that Mr Smith suffered from Post- Traumatic Stress Disorder and an exacerbation of his Major Depressive Disorder. (sic) The Panel found an assessable WPI [Whole Person Impairment] at 8% when the matter was reviewed afresh and the worsening of the claimant's impairment due to his reaction to his brother in law's death was apportioned out because it was an unrelated event. Accordingly, the Review Panel has determined that this certificate is to be revoked and a new Permanent Impairment certificate has been issued by the Review Panel. Submissions 1. The plaintiff submitted that cl 1.36 of the Guidelines concerned a causally unrelated subsequent injury. The plaintiff submitted that because the Review Panel had found that the Christmas 2016 events "worsened" and made "more severe" the plaintiff's post-2012 motor vehicle accident condition, cl 1.36 was not engaged. 2. The plaintiff drew attention to s 58 of the Motor Accidents Compensation Act and clauses 1.7 to 1.9 of the Guidelines dealing with causation. The plaintiff submitted that under s 58, the causation test to be applied is legal causation both as determined by s 5D of the Civil Liability Act 2002 (NSW) and by applying common law. The plaintiff submitted that, in finding that the plaintiff's condition was "worsened" and "more severe, the Review Panel did not apply the legal causation test arising under s 5D or at common law. 3. The plaintiff submitted that for a relevant legal and factual causal pathway to be established, the post-Christmas 2016 condition following from the events of the brother-in-law's death need only materially contribute to the plaintiff's psychiatric injury and consequent impairment. The plaintiff submitted that, although the Panel did not direct itself to apply the correct test of causation, the findings of "worsened" and "more severe" establish a causal pathway by material contribution. 4. The plaintiff submitted that, to identify a causally independent subsequent condition resulting from the events of the 2016 Christmas period, the evidence would have to satisfy a causal enquiry along the lines of the following: But for the plaintiff's post-2012 motor vehicle accident causing the psychiatric injury, would the plaintiff in any event have developed a psychiatric condition of the same type and character as he exhibited after December 2016? 1. The plaintiff submitted that applying the incorrect causation test amounted to an error of law on the face of the record and amounted to the Panel misdirecting themselves as to the correct legal and factual causation test to be applied. The plaintiff submitted that the finding of a causally unrelated condition giving rise to apportionment was legally unreasonable. 2. The plaintiff submitted that relying on cl 1.36 was a denial of procedural fairness because the Panel proceeded on the basis of that clause without calling for submissions from the parties about it. There were no medico-legal reports dealing with the brother-in-law's death and its effect on the plaintiff. It had not had any focus in the assessment by Dr Prior. 3. The first defendant submitted that the Panel's determination, that the death of the plaintiff's brother-in-law caused a distinct, identifiable and measurable increase in overall impairment resulting from the plaintiff's psychiatric condition, was a matter for the medical judgment of the Panel and was not a matter subject to judicial review. The first defendant submitted that the Panel correctly applied cl 1.36 of the Guidelines in dealing with the effects of the subsequent event. The first defendant submitted that the Panel's approach in apportioning current impairment of 17% between impairment arising from the motor accident in April 2012 (8%) and impairment arising from the brother-in-law's death in December 2016 (9%) was legally correct. 4. The first defendant submitted that the reasoning underlying the plaintiff's assertion appeared to be that unless a subsequent event causes a "new" and "different" psychiatric condition than that which preceded the event, the aggravation and any resulting increase in impairment must be causally related to the initial motor accident. The first defendant submitted that, whether a subsequent event and any impairment it causes is "related" or "unrelated" in a causal sense to the initial motor accident is a matter of fact, and cannot depend upon the happenchance of whether the psychiatric effect of the subsequent event is to create a new and different psychiatric condition, or to aggravate an existing condition. If, as in this case, the subsequent event has nothing to do with the initial motor accident, then its effects cannot be taken into account in assessing impairment arising from the motor accident. 5. The first defendant submitted that clause 1.36 only applies where a subsequent event causes additional impairment of the same species, in this case being additional psychiatric impairment. Reliance was placed on GIO General Limited v Smith; Insurance Australia Ltd t/as NRMA Insurance v Smith & Ors [2011] NSWSC 802 where Hoeben J (as his Honour then was) held at [49] that the words "unrelated injury or condition" refer to the event causing the subsequent injury. 6. The first defendant submitted that the Review Panel was correct in treating the subsequent event that increased the plaintiff's psychiatric impairment in this case as an "unrelated injury or condition" requiring separate assessment, and therefore requiring apportionment of the total impairment at the time of its assessment in December 2017. Consideration 1. Clause 1.36 of the Guidelines concerns subsequent injuries. The clause provides: The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region its value should be calculated. The permanent impairment resulting from the relevant motor accident should also be calculated. If there is no objective evidence of the subsequent impairment its possible presence should be ignored. 1. This clause should be seen in conjunction with cl 1.33 which deals with pre-existing impairment. That clause provides: The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed prior to the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value should be calculated and subtracted from the current whole person impairment value. If there is no objective evidence of a pre-existing symptomatic permanent impairment, then its possible presence should be ignored. (italics added) 1. It should be noted that the words in italics in cl 1.33 do not appear in cl 1.36. I shall return to that matter later in this judgment. 2. Two cases are relevant to the issue to be determined in the present case. The first is Allianz Australia Insurance Ltd v Motor Accidents Authority of NSW [2011] NSWSC 102. In that matter, the plaintiff suffered physical and psychiatric injuries in two motor vehicle accidents. NRMA was the insurer for the first and Allianz for the second. 3. The dispute as to the degree of permanent impairment was referred to the Assessor, Dr Samuels. He diagnosed a major depression arising from both accidents and found a whole person impairment of 19%. He did not apportion that impairment between the two accidents. Allianz sought a review. The Review Panel determined that the plaintiff suffered from major depression with melancholia leading to a whole person impairment of 26% arising from the second accident. The basis for that decision was explained by Hidden J as follows: [6] The panel determined that it could not make an apportionment for each accident. Its findings were these. The first accident had caused the condition of major depression with melancholia. However, Mr Cha told his treating psychiatrist that he was starting to recover until the second accident, which exacerbated his condition. Nevertheless, in the days immediately prior to the second accident the psychiatrist observed him to be depressed and commenced him on what the panel described as "new and specific psychiatric treatment". As a result, the condition had not stabilised prior to the second accident and the degree of Mr Cha's permanent impairment at that time could not be determined. Accordingly, his whole person impairment was assessed on the basis of the injuries suffered in the second accident. [7] In its reasons the panel expressed its findings in this way: "1. There was no pre-existing condition which caused a degree of permanent impairment prior to the first motor accident. 2. The condition of Major Depression arising from the injuries sustained in the first motor accident on 7 February 2004 had not stabilised at the time of the second and therefore it was not possible to make a determination of whole person permanent impairment prior to the second motor accident. 3. The condition of Major Depression with melancholia arising from the injuries sustained in the first motor accident is now stabilised. 4. The condition of Major Depression exacerbated by the injuries sustained in the second motor accident on 21 October 2005 is stabilised and therefore the whole person impairment as assessed by the panel is determined to be arising from the injuries sustained in the second motor accident alone." 1. In determining what was meant by "unrelated injury" in cl 1.36, Hidden J said: [17] The source of the error, Mr Rewell argued, was that the panel lost sight of the fact that its task was to assess the whole person impairment arising from two accidents. If Mr Cha had claimed only in respect of the first accident, a medical assessor or review panel would have been required to treat the injuries arising from the second accident as "subsequent injuries" within the meaning of clause 1.36. By virtue of that clause, it would have been necessary to determine whether those injuries gave rise to permanent impairment and, if so, to evaluate that impairment. As Mr Rewell put it, an overall assessment of permanent impairment could not have been made if clause 1.36 were correctly applied. Two separate assessments of impairment would have been required. [18] As it was, Mr Rewell said, the panel had before it two claims, each of which had to be dealt with. By clause 1.23, its duty was to assess the permanent impairment occasioned by each accident as at the time of the review. Mr Rewell argued that it was "comfortably in a position" to do so. The evaluation of the impairment arising from the first accident would have to have taken account of that occasioned by the second accident, in accordance with clause 1.36. More importantly from the perspective of Allianz, the evaluation of the impairment arising from the second accident would have to have taken account of that occasioned by the first, in accordance with clause 1.33. … [23] In response to Mr Rewell's argument that an evaluation of the impairment caused by the first accident would have required consideration of the impairment caused by the second, pursuant to clause 1.36, Mr Romaniuk pointed out that that clause is concerned with evidence of a subsequent and unrelated injury or condition. In the present case, he argued, the condition caused by the second accident was not unrelated because the panel found it to be an exacerbation of the condition arising from the first. However, I think that there is force in Mr Rewell's response that this is not a correct interpretation of the word "unrelated". As an example of a "related" condition, Mr Rewell referred to the common situation where impairment from an accident is increased by subsequent related events, such as medical treatment or surgery. In the present case Mr Cha's condition was exacerbated by a wholly unrelated event, a second accident, so that that exacerbation was relevantly unrelated. (emphasis added) 1. The second case, relied upon by the first defendant, was GIO General v Smith. In that case the plaintiff had been involved in two motor accidents. He suffered psychiatric injuries. The plaintiff lodged an Application for Assessment of a Permanent Impairment Dispute in accordance with the provisions of the Motor Accidents Compensation Act in respect of each of the accidents. GIO was the insurer for the first accident and NRMA was the insurer for the second. 2. The Assessor issued a Certificate under s 61 of the Act in respect of each accident. He assessed the extent of whole person impairment having been caused by each accident at 15%. Each of the insurers sought a review. The Review Panel also issued two certificates in relevantly identical terms finding that the degree of permanent impairment of the injured person as a result of the injury caused by each motor accident was greater than 10%. In that way the plaintiff was able to claim damages for non-economic loss for his psychiatric condition in respect of each motor accident. 3. Justice Hoeben said: [48] I have concluded that apportionment was possible under the Guidelines, as they presently exist, and based on the factual findings properly made by the Review Panel, i.e. that the two motor accidents contributed to the Major Depressive Disorder and as such, to the total value of the Whole Person Impairment, i.e. 17 percent. [49] I have reached that conclusion by adopting the interpretation of Guideline 1.36 submitted by GIO and NRMA. I have concluded that the correct interpretation of the second sentence in Guideline 1.36 is that the words "unrelated injury or condition" refer to the event causing the subsequent injury, not the medical description of the subsequent injury. Unless such an interpretation is given to those words, Guideline 1.36 has little work to do since most injuries resulting in permanent impairment in the same region [as a previous injury] would on the Review Panel's interpretation not be an unrelated injury. 1. His Honour found support for that approach in the judgment of Hidden J in Allianz, and his Honour set out the portions of the judgment in Allianz which I have set out at [25] above. 2. The plaintiff's principal point in the present matter derives from what Hoeben J said in Smith at [49], namely, that the words "unrelated injury or condition" refer to the event causing the subsequent injury. The plaintiff says that an event causing a subsequent injury constitutes the gateway to cl 1.36 applying. For that gateway to operate, the plaintiff says, it must be shown that the subsequent event caused injury in a manner determined in the same way as s 5D and the common law determines causation. The plaintiff says that in the present case the Panel did not determine that the brother-in-law's death caused psychiatric injury. All that they found was that the psychiatric injury already suffered in the motor accident was worsened or made more severe by the brother-in-law's death. In that way there was no unrelated injury. 3. In my opinion, this argument was put and lost in Allianz. In that case Hidden J said at [23]: … In the present case [Mr Romaniuk] argued, the condition caused by the second accident was not unrelated because the panel found it to be an exacerbation of the condition arising from the first. … In the present case Mr Cha's condition was exacerbated by a wholly unrelated event, a second accident, so that that exacerbation was relevantly unrelated. 1. In the present case the Panel found that the plaintiff's condition was exacerbated ("worsened" or made "more severe") by the brother-in-law's death which was a wholly unrelated event, so that that exacerbation was relevantly unrelated. 2. Further, what Hoeben J was doing in Smith at [49] was distinguishing between the event and the injury. His Honour was not making a statement about causation in the way that the plaintiff contends. The focus of cl 1.36 is not on causation but on whether there is permanent impairment in the same region from what now must be understood as an unrelated event. 3. In any event, the Panel's findings in the present case at least indicate that the brother-in-law's death materially contributed to the impairment found by the Panel. That is a finding of causation. Ordinarily, causation is a question of fact and not of law: March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506 at 515, 524; Garcia v Motor Accidents Authority of New South Wales [2009] NSWSC 1056 at [24]. In that way, the Panel's finding that the brother-in-law's death was an unrelated event was a finding of fact. 4. There can be no doubt that the Panel thought that the brother-in-law's death resulted in permanent impairment because, having set out the details relating to each of the PIRS categories, the Panel found that the brother-in-law's death caused a permanent impairment amounting to a whole person impairment of 9%. As senior counsel for the first defendant said, the Review Panel is not concerned with diagnosing a particular injury but in determining the impairment from any such injury. 5. In the light of what was decided in Allianz at [23] and followed in Smith at [51], I do not consider that the Panel used the wrong test of causation. Nor was it obliged to set out in its reasons what test it was applying. The reasons make clear why it was that they found an unrelated injury within the meaning of cl 1.36, namely, the worsening and making more severe of the plaintiff's condition after and as a result of the brother-in-law's death. That finding was not irrational, illogical or unreasonable. The findings were findings of fact, and no error of law is shown. 6. Where the Panel found that the plaintiff's condition "worsened" and was made "more severe" by the brother-in-law's death and that this amounted to an impairment of 9%, it would be absurd if cl 1.36 did not apply with the result that the insurer became liable for the impairment that resulted from that event. Unlike the position where further impairment occurs from treatment after an accident, the motor vehicle insurer cannot be responsible for the brother-in-law's death or the plaintiff's response to that death. The fact that the Panel, by applying the changed position of the plaintiff after the death to the PIRS categories, could determine a permanent impairment of 9% from that event, means that there was objective evidence of the subsequent impairment. 7. The only result in the present case that accords with what was determined in Allianz and Smith, in circumstances where the plaintiff's condition "worsened" and was made "more severe" by the brother-in-law's death, is that the permanent impairment resulting from that event should be calculated in accordance with cl 1.36. 8. As noted earlier, cl 1.36 says nothing about deducting the subsequent impairment, unlike cl 1.33. The point was indirectly raised in Smith where the position was explained by Hoeben J as follows: [52] It then becomes necessary to deal with the additional argument raised by Mr Smith in support of the Review Panel's approach, i.e. that even on the interpretation of the words "unrelated injury" in Guideline 1.36 put forward by GIO and NRMA, it was still not possible for the Review Panel to assess permanent impairment in relation to each motor accident. Implicit in Mr Smith's submission is the proposition that for guideline 1.36 to apply, the value of the subsequent permanent impairment has to be deducted from the value of the permanent impairment arising from the relevant motor accident. [53] The first and most obvious difficulty with that argument is that the Guideline does not in terms refer to any deduction. It says no more than that two calculations should be made. [54] I have concluded that Guideline 1.36 does not require a deduction in every case as is implicit in Mr Smith's submission. A deduction may well be required if the subsequent "unrelated injury" is an injury which is not brought about by a motor accident. That is not so in circumstances such as we have here where the subsequent permanent impairment is caused by another motor accident. In that case the Guideline requires that the value of each permanent impairment should be calculated. Not only is no deduction required, but it may be inappropriate. (emphasis added) 1. In that way, the approach of the Panel in deducting the subsequent impairment of 9% was entirely correct. 2. In relation to the claim of a denial of procedural fairness, it should first be noted that the plaintiff was examined by Dr Prior on 21 April 2017, some four months after the brother-in-law's death. A reading of both the reports of Dr Prior and the Review Panel suggests that the impact of the brother-in-law's death did not fully materialise until after the time the plaintiff was examined by Dr Prior. Nevertheless, it is not correct to say that the first time that the brother-in-law's death became the focus of a cl 1.36 enquiry was when the Review Panel's decision was published. 3. When Dr Prior dealt with subsequent injuries and medical conditions sustained since the motor accident he said this: He [Mr Smith] reports that his brother-in-law to whom he was very close was killed in a motor vehicle accident one week prior to Christmas 2016. He states "I was very close to him; I had to ID his body and arrange the funeral; also my sister-in-law is in hospital at the moment being treated for breast cancer and she has had a clot to the lung". 1. Dr Prior also said under the heading "Subsequent psychiatric conditions": He reports that he was significantly distressed by the death of his brother-in-law but denies that his brother-in-law's death or other losses subsequent to his indexed motor vehicle accident have exacerbated his indexed psychiatric condition. 1. When Dr Prior was dealing with the PIRS categories he made reference to the close relationship he had to his brother-in-law. However, and this is no doubt why cl 1.36 is not expressly referred to, under the heading "(ii) Subsequent/Independent Psychiatric Impairment" Dr Prior said: There was no subsequent/independent psychiatric impairment therefore subsequent/independent psychiatric impairment equals 0%. That finding makes clear, however, that the issue of a subsequent injury was considered by him but rejected because of what the plaintiff reported. 1. In the submissions lodged with the Review Panel, the solicitors for the first defendant made reference to the plaintiff listing social activities and regular contact with people including his brother-in-law who had passed away in December 2016. 2. The Panel examined and assessed the plaintiff on 10 November 2017. The plaintiff informed the Panel of matters concerning his condition and its relationship to his deceased brother-in-law. The Panel reported: Mr Smith reported that his Cipramil had been increased to 50mg daily after the death of his brother-in-law and he continued on this dosage at the time of this assessment. He reported that he had a consultation with a psychiatrist via video link from the Black Dog Institute after the death of his brother-in-law. … Mr Smith had seen his dead brother-in-law after he died on his farm during the Christmas 2016 period. Mr Smith's depressive symptoms had become more severe and he had lost interest in his social and recreation tasks. He reported that he was not expecting to be present at his daughter's athletic competition in the coming months. The circumstances of his brother-in-law's death were traumatic for Mr Smith and caused a worsening of his psychiatric condition and level of impairment… Mr Smith reported that he had stopped racing greyhounds since the death of his brother-in-law. He reported that he had lost interest in assisting his daughters with their sport. He reported that he was no longer interested in breeding from his best stud greyhound. 1. In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 the High Court said at [47]: The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. 1. In Bhusal v Catholic Health Care Ltd [2018] NSWCA 56 the Court of Appeal (Meagher and Simpson JJA and Sackville AJA) said at [57]: The authorities make it clear that the touchstone for determining whether a person has been denied procedural fairness, where the decision-maker is under a duty to act fairly, is whether the procedures adopted have caused "practical injustice" to that person. In Kioa v West, Mason J emphasised the importance the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn, so that the person may have an opportunity of dealing with it. This principle is often relied on in cases where the decision-maker acts on information adverse to the person concerned but fails to disclose the information or to give the person an opportunity to comment on its accuracy or significance. The principle is also invoked where a decision-maker fails to warn the relevant person that issues not previously thought to be in dispute might be the subject of adverse findings. But these are not the only circumstances in which a failure to alert a person to the critical issue for determination can result in practical injustice. 1. I do not consider that there was any denial of procedural fairness by the Panel. The Panel's task was not adjudicative. Its task was to provide a medical opinion on the medical question referred to it which concerned permanent impairment. It was obliged to take account of clauses 1.33 and 1.36 to determine if there were pre-existing or post-accident impairments so that it could properly evaluate the permanent impairment resulting from the motor accident concerned. The information about the brother-in-law's death and its effect on the plaintiff was provided to the Panel by the plaintiff himself. In the light of what the Panel was told, it was a particularly relevant matter for the Panel to consider. 2. As noted, the solicitors for the first defendant had made specific reference to the brother-in-law's death in their submissions to the Panel, and it does not appear that there was any response to that by those acting for the plaintiff. It was always open to the plaintiff and his lawyers to submit further material, including medico-legal reports, to the Panel to argue that the plaintiff's post-Christmas 2016 condition was not caused by his brother-in-law's death but related to the motor accident. It was neither the role nor the responsibility of the Panel to call for further submissions on behalf of the parties because the Panel was obliged to apply its own medical experience and expertise to its task of determining permanent impairment, and any effect on pre-existing or post-accident events. 3. There was no practical injustice to the plaintiff in the Panel not interrupting its task to seek submissions from the parties based, presumably, on what the Panel would report the plaintiff told them. All that the plaintiff suggested would have occurred, if that had happened, is that the plaintiff's solicitors would have made submissions to the Panel along the lines of what has been put to me, and which I have rejected. The matter to be determined by the Panel was a medical one, not a legal one. 4. When considering the obligation of a review panel appointed under the Motor Accidents Compensation Act, Leeming JA said in Frost v Kourouche [2014] NSWCA 39 at [40] (Beazley P and Basten JA agreeing): … [T]he self-evident purpose of non-curial assessment of disputes as to permanent impairment was to reduce the role of courts in respect of claims to which assessment applied. There is no reason for any greater content to the obligation to accord procedural fairness to be discerned in a non-curial procedure. That conclusion is wholly consistent with what was said, of the obligation to afford procedural fairness in a substantially similar regime, in Wingfoot at [47]. Conclusion 1. In my opinion the plaintiff's challenges to the Assessment of the Review Panel fail. 2. I make the following orders: 1. Summons dismissed. 2. The plaintiff is to pay the first defendant's 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: 30 October 2018