Does the obligation to respond to a ‘clearly articulated argument’ equate to an obligation to respond to every single argument articulated by a party?

In Brief

• Both a Medical Assessor and Medical Review Panel are required to form their own opinion on the medical dispute referred to them and provide adequate reasons for their conclusions. It is not necessary for either an Assessor or a Review Panel to respond to every single argument raised by a party, in their submissions, on a particular medical issue in dispute.
• A Medical Assessor and Medical Review Panel’s reasons are to be read in the context of the whole Certificate, rather than just in a single paragraph or section.
• The failure to refer to a particular piece of evidence does not mean a Medical Assessor or Review Panel did not consider it.

Background

The Supreme Court handed down its decision in Insurance Australia Ltd t/as NRMA Insurance v Kirkpinar [2025] NSWSC 162 on 10 March 2025.

The Insurer sought judicial review of a Review Panel’s assessment of 15% whole person impairment (WPI).

On 12 April 2023, a PIC Medical Assessor diagnosed the Claimant with injuries to the cervical spine, lumbar spine, right hip and left hip. The Assessor assessed WPI at 20%.

The Insurer successfully sought a review. On 24 April 2024, the Review Panel revoked the original Certificate and assessed WPI at 15%.

The Insurer sought judicial review of the Review Panel’s decision on the following grounds:

1. The Panel erred in its approach to causation in relation to the left hip injury and failed to consider and/or determine causation at all in relation to the lumbar spine injury.
2. The Panel failed to give adequate reasons, with respect to causation, in relation to the left hip and lumbar spine injuries.
3. The Panel failed to respond to the Insurer’s substantial and clearly articulated arguments regarding the respective causes of the Claimant’s hip surgery and lumbar spine injury.
4. The Panel failed to evaluate the available evidence, as required by the guidelines issued under the Motor Accidents Compensation Act 1999 (MACA) and failed to intellectually engage with the Insurer’s case.

Supreme Court reasons

Justice Mitchelmore accepted grounds one and two of the Insurer’s application for judicial review.

Ground one – causation

Claimant’s left hip injury

Her Honour accepted the Panel responded to the very issue of causation raised by the Insurer in the Panel’s conclusion the Claimant’s pre-existing osteoarthritis was aggravated in the accident, resulting in the need for a total hip replacement earlier than would have otherwise been required. The Panel was not required to identify the particular point in time in which the Claimant would have otherwise required hip replacement surgery, had the accident not occurred.

Her Honour noted the Panel, having considered the pre-accident and post-accident medical material, concluded the accident was a ‘contributing cause, which was more than negligible‘ to the aggravation of the pre-existing osteoarthritis in the left hip. Her Honour observed the language in this sentence reflects the language used in clause 1.7 of the Motor Accident Permanent Impairment Guidelines (the Guidelines), which strongly suggests the Panel had these Guidelines in mind when reaching its conclusion on causation.

Claimant’s lumbar spine injury

Her Honour accepted the Panel, in its Certificate, was silent on the issue of causation of the lumbar spine. This is because the Panel’s reasons relating to the lumbar spine were confined only to the finding of DRE II, which the Panel noted was similar to that of the original PIC Medical Assessor. Her Honour noted it was necessary for the Panel to make a determination in relation to causation of the lumbar spine because the Insurer had explicitly raised this issue in its application for review.

Ground two: adequacy of reasons

Her Honour accepted the Review Panel’s reasons, regarding the left hip impairment, when read against the background of the paragraphs that preceded and followed it, were adequate. It was clear, from the Panel’s reasons, that it had rejected the Insurer’s submissions on causation. Her Honour noted it was not necessary for the Panel to address all the questions posed by the Insurer in its review submissions or go through the particular material on which the Insurer relied on and explain what it did or did not accept.

In relation to the lumbar spine, Her Honour accepted the Panel’s reasons on the issue of causation were inadequate. This was because there was no expression of any opinion, in the Panel’s reasons, as to whether the accident caused the lumbar spine injury and the associated impairment.

Ground three: failure to respond to a substantial and clearly articulated argument

Her Honour noted the Panel was not required to respond to the precise arguments raised by the Insurer on the issue of causation. Instead, all the Panel was required to do was to form and give its own opinion on the medical question referred to it. Her Honour concluded the Panel clearly considered causation in the Claimant’s left hip impairment and sufficiently exposed its path of reasoning on that issue.

Ground four: failure to evaluate evidence

Her Honour accepted the omission of a particular piece of evidence, from the Review Panel’s reasoning, does not mean the Panel did not consider it. The Panel was only required to refer to the substance of the evidence and not every single piece of evidence before it.

The Review Panel’s Certificate was set aside and the matter was remitted back to the Commission for determination by a differently constituted Review Panel.

Why this case is important

This case clarifies that a Panel is not required to deal with every single argument advanced by the parties in its submissions. Rather, the Panel is only required to identify and deal with the specific medical question, for example causation or WPI, in dispute between the parties. The Panel must, in addressing the medical question referred to it, provide adequate reasons for its conclusion.

This case also demonstrates, when determining whether a Panel’s reasons are inadequate, it is necessary to read the reasons in the context of the Certificate as a whole. This is because a Panel’s reasoning may not necessarily be exposed in one paragraph or section of a Certificate. Rather, the reasons may also be contained in preceding or subsequent paragraphs, in the Panel’s review of the medical records or in its findings from the clinical examination.

Whilst this decision examined a Medical Assessor’s obligations under the MACA and Motor Accident Permanent Impairment Guidelines, the principles apply equally to claims under the Motor Accident Injuries Act 2017 and the Motor Accident Guidelines.