AAI LIMITED (trading as AAMI Limited) v Chan

AAI LIMITED (trading as AAMI Limited) v Chan - [2024] NSWSC 329 - NSWSC 2023 case summary — Zoe

[3]

Background

In December 2014, Dr Zion Chan was injured in a motor vehicle accident. Dr Chan was assessed on 11 April 2019 by Assessor Clive Kenna who certified on 3 May 2019 that he had suffered a cervical spine injury caused by the motor vehicle accident, assessed as a 5 percent whole person impairment. Assessor Kenna also determined that the right shoulder injury was not caused by the motor vehicle accident.
The accident itself involved a collision causing approximately $1,400 worth of damage to the claimant's Maserati motor car. He sought no treatment for some months after the accident and then attended, on the same day as his wife who was in the car as well, upon a GP for treatment in relation to a neck injury that he said he suffered in the accident.
In late 2017 the claimant commenced to make complaints of problems with his right shoulder. This led to surgery following which he ceased to practice as a cosmetic surgeon. His evidence disclosed that he moved to China with his wife and daughter because it was cheaper to live in than Australia.
The claimant had worked as a cosmetic surgeon for some years including working increased hours for approximately three years after the accident. During that time, he made no complaint of pain or restriction of movement in his right shoulder.
In May 2019, a medical assessor conducted an assessment and certified that Dr Chan suffered injury to his cervical spine caused by the accident, assessed at 5% whole person impairment. However, the assessor concluded that he had not suffered any injury to his right shoulder caused by the accident based on a lack of contemporaneous information. On 9 September 2019, the review panel confirmed Assessor Kenna's certificate.
The issues to be dealt with in this judicial review are causation and the assessment of the claimant's damages. As breach of duty of care had been admitted, the matter came to be dealt with in the Personal Injury Commission. The matter was referred to Member Stern ('the Member') for determination of the claimant's damages. The assessment was initially conducted by video conference on 2 September 2022 and continued, in person, on 13 October 2022. On 19 December 2022, the Member issued his Certificate of Determination. He assessed damages in the sum of $1,595,432.67.
In the second amended summons dated 11 April 2023, the insurer relevantly seeks the following relief: "1. An order in the nature of certiorari or, alternatively, a declaration selling aside or declaring invalid the certificate of the second defendant made on or about 19 December 2022 purportedly pursuant to s.63 of the Motor Accidents Compensation Act 1999 ('the Act') ('the assessment decision'). … 3. A declaration that the second defendant committed jurisdictional error in failing to properly apply the provisions of sections 125 and 126 of the Act. 4. A declaration that the second defendant committed jurisdictional error in his application of section 136 of the Act. 5. A declaration that the second defendant committed jurisdictional error or error of law within jurisdiction by failing to refer to and apply the evidence and submissions made by the plaintiff as to the issues relating to the second defendant's credit. 6. A declaration that the second defendant failed to make any or any adequate findings on the second defendant's credit in circumstances where the medical evidence relied upon by the second defendant to determine that the first defendant's right shoulder injury was caused by the motor vehicle accident relied, in turn, upon the subjective histories received by the relevant medical practitioners. 7. A declaration that the second defendant committed an error of law within jurisdiction by impermissibly rejecting the uncontradicted evidence of Mr Griffiths, mechanical engineer. 8. A declaration that the second defendant committed an error of law within jurisdiction by impermissibly relying upon an opinion of Mr Scalia, occupational therapist, to the effect that the first defendant needed retraining to be a general practitioner. 9. A declaration that the second defendant committed error in that having reqard to the evidence adduced at the hearing of the matter no reasonable decision maker in the second defendant's position could have concluded that the first defendant's right shoulder injury was causally related to the accident. 10. An order that the third defendant refer the matter for further assessment by a different Assessor."
The insurer's grounds of review are as follows: 10. The plaintiff obtained a report from a biomechanical engineer that suggested that the evidence of damage showed a very modest collision which was unlikely to have caused any injury to the second first defendant. The first second defendant rejected the report of the biomechanical engineer on the basis that other doctors had accepted that the first second defendant had suffered a soft tissue injury in his neck following the accident which, the second defendant found, was contrary to the opinion of Mr Griffiths. The evidence about soft tissue injury was, by it's nature, the subjective evidence of complaint by the second first defendant. 11. The report of Mr Griffiths should not have been rejected but should have been accepted by the second defendant and the opinions applied to the case. 12. Credit in the matter was a significant issue. Issues arose as to what complaints the second defendant had made following the accident, whether he in fact had any paid domestic assistance prior to the accident and how much he was earning before and after the accident. The last was the subject of accounting evidence from both parties. 13. Additionally, there were credit issues as to the severity of the collision and the reason why he and his wife, some months after the accident, for the first time attended a GP's surgery they had not previously attended. 14. The clear evidence of the first defendant that he could work as a GP earning $250,000 a year to $300,000 a year following this retirement as a cosmetic surgeon, was accepted by the plaintiff and not the subject of dispute. 15. When determining whether or not the second defendant had failed to mitigate his loss, the plaintiff pointed to the second defendant's own evidence on the issue. If that evidence had been accepted by the first second defendant (which in part it was), that would have led to a finding that the second first defendant was able to earn an income that would essentially be the same as, if not greater than, the maximum weekly income that he could receive as an award of damages pursuant to sections 125 and 126 of the Act. Had the first second defendant found that to be the case then there could have been no scope for any award of damages for economic loss. 16. Section 136 of the Act requires a claimant such as the second fI defendant to mitigate his or her loss. The second defendant's award refers repeatedly to the second first defendant not having mitigated his loss. However, the second defendant's approach to that issue was to find that but for the accident the first defendant would have earned an amount above the threshold. The second defendant then calculated what that would mean and reduced the total by one third to take into account the second defendant's failure to mitigate his loss. 17. That approach by the second defendant was a jurisdictional error. 18. The second defendant felt into jurisdictional error and failed to exercise his statutory powers in the following respects: (a) He failed to properly apply the provisions of sections 125 and 126 of the Act in so far as he impermissibly and inferentially found that the first defendant was largely incapable of earning any income between 2017 and the date of the assessment because of his injuries. (b) The second defendant misapplied the provisions of section 136 of the Act in so far as he failed to find that the basis on which the second defendant could mitigate his loss was by working as a GP in New South Wales earning at least as much, if not more, than the statutory limit provided by section 125 of the Act. 19. The second defendant fell into error of law in the following respects: (a) ln failing to give sufficient reasons or adequately deal with the issues of credit raised by the plaintiff. (b) Failed to provide any reasons or adequate reasons in relation to issues raised by the plaintiff on the evidence of, inter alia, Dr Chen, Mr Griffiths and Ms Lindsay (accountant). (c) impermissibly retied upon Mr Scalia to inform him, the second defendant, of what was needed for the first defendant to retrain to be a general practitioner and gave no reasons for accepting that evidence in the circumstances. (d) Improperly rejected the uncontradicted evidence of Mr Griffiths and failed to give any or any cogent reasons for doing so. (e) Improperly rejected the evidence of four Medical Assessment Service doctors in finding the first defendant's right shoulder injury was causally related to the subject accident and failed to give cogent reasons for doing so.
The insurer's grounds of review can be summarised as firstly the Member made errors in impermissibly rejecting the uncontested evidence of Mr Griffiths, mechanical engineer (judicial grounds 10 and 11), secondly, in failing to find and make any adequate findings and apply the evidence and the submissions made by the insurer as to the claimant's credit generally and in particular in relation to the insurer's injury to his right shoulder (judicial grounds 12, 13, 19), thirdly in granting an award that was 'manifestly excessive' and indicative of jurisdictional error (judicial review ground 18), fourthly, the Member made errors in relation to ss 125, 126 and 136 of the Motor Accidents Compensation Act 1999 (NSW) ('MACA') concerning the claimant's obligation to mitigate his loss (judicial grounds 15-18) and impermissibly relies on the report of Mr Scalia, occupational therapist, as to retraining as a GP, finally, improperly preferring the evidence of Associate Professor Haber ('A/P Haber) over other Medical and expert evidence (judicial review ground 19). Several of the issues regarding the insurer's grounds of review overlap and have been addressed below.

[4]

The rejection of Dr Griffiths' evidence

The insurer has provided a factual history of the matter between paragraphs [1]-[9] under the heading 'grounds of judicial review'. The grounds of judicial review have been covered under the following paragraphs. Grounds of judicial review 10 and 11 relate to the topic 'The rejection of Dr Griffiths' evidence'. These grounds read as follows: 10. The plaintiff obtained a report from a biomechanical engineer that suggested that the evidence of damage showed a very modest collision which was unlikely to have caused any injury to the second defendant. The first defendant rejected the report of the biomechanical engineer on the basis that other doctors had accepted that the first defendant had suffered a soft tissue injury in his neck following the accident which, the first defendant found, was contrary to the opinion of Mr Griffiths. The evidence about soft tissue injury was, by its nature, the subjective evidence of complaint by the second defendant. 11. The report of Mr Griffiths should not have been rejected but should have been accepted by the first defendant and the opinions applied to the case."
The insurer submitted that the rejection of Mr Griffiths' report was a rejection of factors of great importance and that it amounted to jurisdictional error in the circumstances. I have set out the Member's reasoning on this topic under the heading resolution.
The claimant submitted that characterising the Member's reasons as "the rejection of" certain evidence relied on by the insurer before the Member is not a fair or accurate description of the Member's reasons.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ('Li'), Hayne, Kiefel and Bell JJ stated at [72]: "[72] The more specific errors in decision-making, to which the courts often refer, may also be seen as encompassed by unreasonableness. This may be consistent with the observations of Lord Greene MR, that some decisions may be considered unreasonable in more than one sense and that "all these things run into one another". Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense." The insurer set out examples of instances amounting to jurisdictional error summarised from the judgment of Hayne, Keifel and Bell JJ in Li at [66] - [76] as follows: 1. no sensible decision-maker acting with due appreciation of its responsibilities would have so decided (at [71]); 2. the decision-maker has failed to give adequate (in this case any) weight to a relevant factor of great importance (at [72]); 3. where the decision-maker reasoned illogically or irrationally (at [72]); 4. a decision lacks evident and intelligible justification (at [76]); or 5. it is not apparent how a conclusion was reached, but the decision itself bespeaks error (at [82] and [85]).

[5]

The insurer's submissions

In his reasons, the Member held that the cause of the right shoulder condition suffered by the claimant relied upon "the expert opinion and the objective facts" at [179]. The Member then went on to record a lack of early reporting of a direct injury to the shoulder by the claimant and a lack of complaint to a number of doctors concerning any shoulder problems in the 12-24 months after the accident including to his own doctors: [180], [182] and [183].
The Member held that the conclusions of Mr Griffiths were contrary to the findings of Dr Kenna: at [186].
At paragraph 192 the Member asked himself this question: "Is the report of Mr Griffiths reliable on the question of whether or not there was injuries sustained in the motor vehicle accident?"
His answer was: "Given the opinions of a substantial number of experts to the effect that the claimant did sustain injury in the accident, I do not consider that one can safely conclude that the opinions of Mr Griffiths in this particular case carry significant weight."
That reference to opinions was a reference to some of the doctors suggesting that the claimant may have suffered a soft tissue injury to his neck. That was on the basis of the history given by the claimant to those doctors. Soft tissue injuries are, by their nature, generally incapable of being objectively determined.
Most of the experts to which the Member was presumably referring found that while the claimant may have suffered a soft tissue injury to his neck, he did not suffer an injury to his right shoulder in the accident.
The rejection of the opinion of Mr Griffiths by the Member was without any proper foundation and an error of law. Simply because a number of doctors accepted the subjective complaints the claimant to the effect that he had suffered some pain in his neck following the accident, this was an inadequate and improper basis for rejecting the uncontradicted evidence of Mr Griffiths, apparently in its entirety.
The evidence of Mr Griffiths was relied upon by the insurer for more than just determining whether the claimant had suffered a soft tissue injury to his neck. It was relied upon as part of the defence to the claim by the claimant that his right shoulder injury was caused by the motor vehicle accident. The evidence of Mr Griffiths clearly demonstrated that there was insufficient force in the accident to generate the sort of injury that the claimant suffered in his right shoulder.
In the same paragraph the Member recorded a diagnosis of a soft tissue injury in the cervical spine by Dr Chen with 'somatic referred pain to the right shoulder girdle'. Somatic disorders are linked to feelings of disorder manifested as physical symptoms suggesting illness. In that regard the fact that Dr Chen referred to them as somatic and as having been referred from the cervical spine clearly suggests that there is no actual injury in the right shoulder girdle.
However, the Member found that Dr Chen's conclusions did not "sit comfortably with the conclusions of Mr Griffiths". The inference appears to be that the Member did not accept Mr Griffiths because the claimant had made complaints of a soft tissue injury to his neck. The Member found that no use could be made of Mr Griffiths report in seeking to determine whether the claimant had a shoulder injury. That was incorrect. As noted above, the sorts of injuries that the doctors referred to as the claimant having suffered were minor, subjective soft tissue injuries.
The acceptance by the doctors of that history from the claimant does not allow the Member to then conclude that there is nothing in Mr Griffiths' report that could assist him in relation to substantial injuries such as the claimant's shoulder injury.
The report of Mr Griffiths was provided by the insurer to Dr Dalton, a consultant physician in rehabilitation medicine. Dr Dalton made the following comment: "The findings of Mr Griffiths, as noted in that report, would support the view that this was a minor collision unlikely to give rise to anything other than a minor cervical sprain injury which would be expected to resolve within a matter of weeks or perhaps months, particularly in a patient who continues to participate in activities which may delay recovery."
The Member did not refer to this critical piece of evidence before discounting the opinions of Mr Griffiths. Had the Member considered the opinion of Mr. Griffiths in conjunction with this opinion of Dr Dalton he could not have reasonably come to a view that the report of Mr. Griffiths should be rejected in its entirety. The Member made no attempt to explain why he discounted the report of Mr Griffiths apart from the findings by some doctors that the claimant may have suffered a soft tissue injury to his cervical spine.
His treatment of the evidence of Mr Griffiths, which was a significant part of the insurer's case, discloses that he chose to reject the opinions of Mr Griffiths for reasons that were unsound in law.

[6]

The claimant's submissions

In Insurance Australia Group Ltd t/as NRMA Insurance v Abboud [2017] NSWSC 1571 ('Abboud'), Walton J stated at [27]-[28]: "[27] The obligation of a claims assessor to give reasons is not to be equated with that of a judge: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 ("Kerr") at [53]. Nonetheless, a claims assessor must provide reasons sufficient to expose the actual path of reasoning by which he arrived at his or her assessment of damages: Zahed v IAG Ltd t/as NRMA Insurance [2016] NSWCA 55 ("Zahed") at [42]-[43]. [28] In Zahed, the Court of Appeal stated (at [43]): [43] ... while the reasons required are not necessarily those which may be expected of a judge, the reasons must demonstrate the path of reasoning that leads the claims assessor to a conclusion as to the amount of damages that a court would be likely to award, in order to make an assessment of the amount of damages that a court would be likely to award, a claims assessor must have regard to the reasoning process that the court would be required to adopt in awarding damages".
Dr Chan, in his statement of 18 October 2017 (("FKA-1" p 28 [28]) described the accident in the following terms: "[27] Whilst my vehicle was stationary I felt a large impact to the rear of my vehicle. [28] The force of that impact caused my body to be jerked heavily backwards then forwards and my neck hit my headrest with some force. [29] I am about 181cm tall and the Maserati that I was driving has sports seats. As such my neck and head were not sitting flush with the headrest and I recall that the right side of my neck effectively went over the headrest as a result of the impact. I had what I am familiar with as being a hyperextension injury."
Ms Bao, Dr Chan's wife, who was a passenger, in her statement dated 20 November 2017, described the accident in the following terms: "[28] Whilst the vehicle was stationary, I remember feeling a large impact to the rear of the vehicle. [29] The force of that impact made my body jerk backwards and forwards. [30] My head was bent in a forward position as I recall that I was looking at my phone at the time that that impact occurred."
Further, the Member had Dr Chan's oral account of the accident when he was cross-examined in the following terms (FKA-1 79 [332] T40.7): "MR TURNBULL: A very light collision, sir. DR CHAN: Can you - in terms - I think probably we're more - we're surgeons, we're a bit more objective. MR TURNBULL: Well, you see, you say you felt a large impact to the rear of your vehicle in your statement. Do you stand by that statement, sir? DR CHAN: Of course. ..(not transcribable 00:50:01) .. MR TURNBULL: Well, how do you describe objectively a large impact? DR CHAN: A large bang. MR TURNBULL: No, no. You asked me to describe it objectively, I'm just asking you how do you describe a large impactive objectively? DR CHAN: Well, at the time when I'm driving there was a large bang. (FKA-1 p77)."
The history in the clinical notes by Dr Cai on 2 February 2015 was (CP "B" p10): "…hit from behind: at rest; car going 20-30 km/hr; rear car damage".

[7]

The Medical History after the Collision

Dr Chan gave the following history in his statement ("FKA-1" p 29 [38]): "I had a chat with Yufei when we got home who told me that she was not feeling the best and I was feeling discomfort in my neck. I thought that I had suffered a soft tissue injury and that it would resolve itself. Unfortunately, I was wrong."
This is consistent with the history recorded by Assessor Kenna ("FKA-1" p 192): "At the time he experienced neck pain, predominantly right-sided but he states in retrospect, he felt he heard a pop in his right shoulder and this was possibly as a result of the seatbelt tightening and jerked him solidly back into the seat He states in retrospect, he started to then experience some right sided pain over the region of the right shoulder, not immediately but three weeks later."
On 30 January 2015, Dr Chan records in the claim form ("FKA-1" p 186): "What are your injuries from the accident? NECK PAIN BACK + SHOULDER PAIN RIGHT SIDE INTERMITTENT NUMBNESS IN HANDS"
Dr Chen, an Occupational Physician, engaged on behalf of the insurer, recorded a history of the accident consistent with Dr Chan's statement and went on to record in the report ("FKA-1" p 217): "He confirmed that he did not have any immediate neck pain. He cannot recall exactly when the neck pain began, he thought it was one or two weeks after the accident. He recalls that it started off with right sided neck pain. He confirmed that the pain had always been located to the right side of the neck but since then he has compensatory pain in the right shoulder girdle."
Dr Chen went on to observe: "The right levitator scapulae and rhomboid muscles were tender to palpation. There were a couple of tender points within the right upper trapezius muscle there was no tenderness to palpation over the left shoulder girdle."
Although insurer's submissions CB 43 [17] may suggest that the Court of Appeal's decision considered Assessor Kenna's decision on the merits, the Court of Appeal was concerned only with an application for the Review Panel to consider further material relevant to the medical causation issue. There was no consideration of the merits issue which the Member decided in this application concerning the causal connection between the accident and the injuries.
Not only is there no jurisdictional error in failing to simply accept the opinion evidence of Dr Griffiths but that would not of itself even be susceptible to intervention in a rehearing type appeal on the merits (although the appellate court could re-evaluate the evidence for itself, a course not open to the Court on this application).
The Member reached a conclusion available on the evidence (CB 82 [186]): "Mr Griffiths' conclusions as set out in [136] and it was his view that there could not have been any relative motion of the Claimant's head or upper torso and without relative movements of adjacent parts of the anatomy there was no potential for strain or stretching to cause damage to tissues. This conclusion is contrary to the findings of Dr Kenna who was of the opinion that the Claimant initially sustained soft tissue injuries to the cervical spine."
It is in this context that the Member asks himself the question and answer to which the insurer refers CB 43 [23]-[24] and decides not to give any significant weight to the opinion of Dr Griffiths. Once again, it is a question of preferring the evidence of other witnesses, not of entirely rejecting the evidence of Dr Griffiths out of hand. Preferring one body of evidence does not constitute jurisdictional error.
The opinion evidence (or other evidence) of a witness is not "uncontradicted" (or "unchallenged") merely because the witness is not cross examined. The evidence may be "contradicted" by other opinion evidence (or other objective evidence). It is trite that the rule in Browne v Dunn (1893) 6 R 67 does not require a witness to be cross examined, in order for the opposing party to contend that the evidence not be accepted in preference to other evidence, if it is apparent that issue is joined. It is also trite that a tribunal of fact is not obliged to simply accept or prefer evidence which has not been subject to cross examination but can instead evaluate the probative value of the evidence.
In this case, first, Dr Griffiths' opinions concerning the severity of the impact, which were not supported by any objective scientific testing replicating the actual impact, were contradicted by the evidence of Dr Chan, as well as his wife, and, secondly, Dr Griffiths opinions concerning the causal connection between the impact and the injury, again unsupported by any objective scientific testing replicating the accident and demonstrating in incontrovertible terms the impossibility of such a connection, were contradicted by Associated Professor Haber as well as Dr Porteous.
Although the insurer's submissions (CB 43 [17]) may suggest that the Court of Appeal's decision considered Assessor Kenna's decision on the merits, the Court of Appeal was concerned only with an application for the Review Panel to consider further material relevant to the medical causation issue. There was no consideration of the merits issue which the Member decided in this application concerning the causal connection between the accident and the injuries.
Not only is there no jurisdictional error in failing to simply accept the opinion evidence of Dr Griffiths but that would not of itself even be susceptible to intervention in a rehearing type appeal on the merits (although the appellate court could re-evaluate the evidence for itself, a course not open to the Court on this application).
Counsel for the claimant said the following in oral submissions (T44.20-30): "The member does not say anywhere in his reasons in respect of any evidence from the insurer that he gives the evidence no weight at all. In particular in respect to Griffiths, the member says his evidence does not significant weight. This does not constitute the type of error referred to in Minister of Immigration v Li. Now I don't agree with the characterisation of the evidence, but we all agree it seems that what those three judges said in Li is critical and I have not sought to attack the decision on the basis that well, on merits review it was fine to accept it. I attacked it on the basis that the decisions made by and the reasons given by the assessor were irrational, that they couldn't be justified."

[8]

Resolution

The insurer submitted that the soft tissue injuries are, by their nature, generally incapable of being objectively determined and that the rejection of the opinion of Mr Griffiths by the Member was without any proper foundation and an error of law. In particular, the insurer was critical of the Member's findings in relation to the claimant's right shoulder.
In essence the insurer has asked this court to make a value judgment on the quality of the evidence the Member relied upon. To undertake this exercise, would be to descend into merits review.
The Member is clear in his decision that he does not reject the report in its entirety, but rather does not apply significant weight to the report. The Member explains his reasons for this comprehensively.
At paragraph [129] of his decision, the Member states: "Mr Griffiths' qualifications and experience are set out in the report, and it is obvious that he is entitled to provide opinion evidence."
At paragraph [192] of his decision, the Member asked this question: "Is the report of Mr Griffiths reliable on the question of whether or not there was injuries sustained in the motor vehicle accident?"
He answered: "Given the opinions of a substantial number of experts to the effect that the claimant did sustain injury in the accident, I do not consider that one can safely conclude that the opinions of Mr Griffiths in this particular case carry significant weight."
The Member explained that he did not place significant weight on the Griffiths' report, because in his view no possible injury could have occurred from the impact of the accident. The Member stated at [136] of his decision: "Mr Griffiths concluded [para.9.2]: (i) the limited [sic] sustained by the vehicle is most consistent with it being improbable that there was any motion of the vehicle's wheels (ii) there cannot have been any relative motion of the Claimant's head or upper torso relative to the vehicle's exterior (iii) without relative movement of adjacent parts of the anatomy there is no potential for strain or stretching to cause damage to tissues (iv) damage to the vehicle driven by (the Claimant) was limited to scuffs/abrasions on the rear bumper cover and not consistent with any motion of the vehicle, and not consistent of any motion or injury to the vehicle's occupants."
The conclusion in Mr Griffiths' report is contradicted by multiple doctors including assessor Kenna who conceded that the claimant has suffered from some form of soft tissue injury.
However, the plaintiff's treating doctor stated that it is not unusual for there to be a considerable time delay between the accident and the subsequent symptoms. The plaintiff's treating doctor stated that may be due to the claimant potentially sustaining a small or partial thickness tear of the rotator cuff at the time of the accident which did not cause significant symptoms initially largely due to the overlying cervical spine injury. He also stated that it is well established that partial thickness tears do gradually deteriorate during time and often become symptomatic once they have become larger.
The Member's conclusion was that Mr Griffiths' evidence "did not carry significant weight" (CB 82 [192]). Preferring one body of evidence does not mean that there is a failure to give other evidence any weight. The Member has not stated anywhere in his reasons that he gives that evidence no weight at all.
The decision the Member came to was one that was open to him to make on the evidence and was not so unreasonable that no reasonable person could have arrived at that conclusion. In my view the Member's reasoning is not manifestly unreasonable. The Member has not provided a conclusion that 'lacks evident and intelligible justification' and does not fall within with Hayne, Kiefel and Bell JJ interpretation of the unreasonableness in Li at [72] and [76].

[14]

Mitigation, Section 136 MACA and was the award manifestly excessive?

Grounds 14, 15, 16, 17 relate to 'The claimant's mitigation of his loss'. These grounds read: "14. The clear evidence of the first defendant that he could work as a GP earning $250,000 a year to $300,000 a year following this retirement as a cosmetic surgeon, was accepted by the plaintiff and not the subject of dispute. 15. When determining whether or not the first defendant had failed to mitigate his loss, the plaintiff pointed to the second defendant's own evidence on the issue. If that evidence had been accepted by the first defendant (which in part it was), that would have led to a finding that the second defendant was able to earn an income that would essentially be the same as, if not greater than, the maximum weekly income that he could receive as an award of damages pursuant to sections 125 and 126 of the Act. Had the first defendant found that to be the case then there could have been no scope for any award of damages for economic loss. 16. Section 136 of the Act requires a claimant such as the second defendant to mitigate his or her loss. The first defendant's award refers repeatedly to the second defendant not having mitigated his loss. However, the first defendant's approach to that issue was to find that but for the accident the second defendant would have earned an amount above the threshold. The first defendant then calculated what that would mean and reduced the total by one third to take into account the second defendant's failure to mitigate his loss. 17. That approach by the first defendant was a jurisdictional error."
Sections 125, 126 and 136 of the MACA read as follows: 125 Damages for past or future economic loss - maximum for loss of earnings etc (1) This section applies to an award of damages - (a) for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or (b) for the loss of expectation of financial support. (2) In the case of any such award, the court is to disregard the amount (if any) by which the injured or deceased person's net weekly earnings would (but for the injury or death) have exceeded $2,500. 126 Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. … 136 Mitigation of damages (1) An injured person is under a duty to mitigate his or her damages. (2) Accordingly, in assessing damages in respect of a claim, the court is to give consideration to the steps taken by the injured person to mitigate those damages and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages. (3) Those steps include the following - (a) undergoing medical treatment, (b) undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation program), (c) pursuing alternative employment opportunities, (d) giving the earliest practicable notice of the claim in order to enable the assessment and implementation of the above matters. (4) In proceedings before the court, the onus of proving that an injured person has not mitigated his or her damages as required by this section lies with the person who makes that allegation. (5) In proceedings before the court, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person. (6) If any dispute arises over an alleged failure by the injured person to mitigate his or her damages, the court is to give consideration to and take into account any evidence that an insurer failed to assist in mitigating damages.

[15]

The Member's reasoning on the topic

The requirement for the claimant to mitigate his loss under s 136 of the MACA has been addressed by the Member.
The Member stated that the claimant may not have any formal qualifications other than those of a general practitioner and surgeon as well as having qualified as a cosmetic surgeon. The fact is that the claimant has made no reasonable or legitimate attempt to mitigate his damages.
The Member noted that in its final submission of 7 December 2022, the Insurer's Senior Counsel submits that the claimant could have worked as a general practitioner in China and also when he returned to Australia.
The Member held that this is a submission without an evidentiary basis. The Member noted the following: that the claimant has not worked as a general practitioner for many years. Mr Scalia has referred to the training that would be necessary to go into practice as a general practitioner and it is not a given that because the claimant was qualified as a general practitioner many years ago, he could re-enter general practice in New South Wales without satisfying any further requirements. The best evidence that I have is from Mr Scalia. The Insurer who has the onus, has provided nothing in the way of evidence of what the situation would be in respect of obtaining a licence to work as a general practitioner in Shanghai or to re-enter such employment, when he returns to New South Wales.
The Member has taken into consideration the fact that the claimant was or could be in the position to work as a GP. The Member dealt with this requirement comprehensively when calculating the damages that were to be awarded to the claimant. He explains his reasoning for reducing the claimant's damages by discounting the amount to account for the claimant's requirement to mitigate his losses. The Member only awards damages for a three-year period, consistent with the evidence provided by Mr Scalia as the time it would take the claimant to retrain as a GP, for the period after that the Member does not award any future economic damages as he assumes that after that period the claimant would be able to earn an amount above the statutory threshold.
At paragraph [17] of the Member's decision, he stated: "As set out in paragraph [41] of the September submissions, it is the Claimant's own evidence that he could earn between $250,000 to $300,000 per year as a GP. It is a job he is, by his own admission, qualified to do. By his own admission he is physically capable of working as a GP."
The Member agreed at paragraph [284] that the claimant has not taken any steps to mitigate his losses: "The Claimant has taken no steps since his surgery by Associate Professor Haber to mitigate his damages. He has not taken any steps towards undertaking rehabilitation nor has he formulated or undertaken an appropriate rehabilitation programme."
The Member accepted that the onus was on the insurer to prove any conditions that the claimant would have to satisfy to retrain as a GP. The insurer had failed to do so and has instead relied upon the claimant's own admission.

[16]

The insurer's submissions

One of the matters on which the insurer relied was that the claimant gave evidence, in a statement, that notwithstanding the shoulder injury and the other injuries he may have suffered in the accident, he was still capable of performing the work of a GP. In his statement of October 2017 at [61] he said this: "There is little doubt that I could perform the general practitioner's work but my income would suffer immensely and I would certainly have no job satisfaction."
So far as what he might have been able to earn, the doctor himself said, in the same statement at [59]: "If I had to go into general practice, I would be lucky to average a salary of between $250,000 to $300,000 per year. I did not undertake eight years of specialist training to undertake general practice work."
The path that the claimant took was to cease practice as a surgeon, to cease working at all and move to China because it was too expensive to live in Australia.
The issue of mitigation was one relied upon by the insurer. The Member dealt with the issue of mitigation from [282]. He had earlier set out some of the submissions put forward by the insurer on the issue. The Member recognised at [284] that the claimant had taken no steps to mitigate his damages. He noted that the claimant had not pursued any alternative employment opportunities.
The Member then found that there was "insufficient information to establish exactly what sort of income the claimant would have been able to derive had he sought to mitigate his damages, but it is clear from his statement [1 August 2022] that he has largely sat on his hands".
Having said that there was insufficient information to establish what sort of income the claimant could have earned, the Member went on to note that the claimant had formal qualifications as a general practitioner: Member's decision at [291]. He also noted that the claimant himself said that he could earn $250,000 to $300,000 per year as a GP: Member's decision at [293]. However, the Member then said that that was not evidence of what he could earn while he has been in China or what he could do when he returned to New South Wales.
The reference to living in China is a reference to the fact that in a statement of August 2022 at [5], the claimant gave evidence that in December 2019 he and his family relocated to China. At [6] the claimant said: "The move to China was due to the excessively high living expenses in Australia. Since the accident I could not earn an adequate income to manage these expenses."
The evidence that the claimant gave was that his move to China was because he could not afford to live in Australia. That was no doubt because, as the Member had found, following the surgery undertaken on his shoulder, the claimant had "sat on his hands" and decided not to look for any work at all. However, the claimant's own evidence was that he could work as a GP, earning the sort of income that would be close to or above the cap of the damages allowable for economic loss pursuant to section 125 of the Act.
Having referred to the evidence of the claimant that he could work as a GP and the amount that he could earn and also finding that he was qualified as a GP the Member at [289] then said this: "The insurer has provided no evidence as to whether or not the claimant is qualified to work as a general practitioner in Shanghai or what was or was not involved in having his New South Wales qualifications recognised in Shanghai."
That paragraph misunderstands the claimant's case. It was not the claimant's case that he had, for unrelated reasons, moved to Shanghai and could not find work there. His case was that he did not want to work in Australia as a GP. He did not have sufficient funds to sustain him and his family, so he moved to China where it was cheaper to live. It was not incumbent upon the insurer to provide evidence as to whether the claimant was qualified to work as a GP in Shanghai. If the claimant had chosen to work as a GP in New South Wales, he could undoubtedly have afforded to remain in this country. All of that came from the evidence of the claimant himself.
The Member referred to the issue of working in Shanghai at [292]. He was critical of the insurer for not providing evidence as to whether the claimant could work as a GP in Shanghai or re-enter such employment when he returns to New South Wales. The first aspect, whether he could work in Shanghai was irrelevant for reasons set out above. The second aspect of what he said is clearly wrong. The claimant himself, probably the best person to know, conceded that he could work as a GP in New South Wales. The insurer was entitled to point to that evidence and rely upon it. The Member's view that in some way the insurer had to provide other evidence to support the submission it made of lack of mitigation, is a clear misunderstanding of the law and is an error of law.
The only finding opened to the Member on this point, on the claimant's own evidence, was that the claimant was capable of working earning $250,000 to $300,000 in NSW as a GP.
Ultimately at [301] the Member held that the claimant had not discharged his obligation to mitigate his damages. He found that the claimant could have worked in some productive capacity. However, his decision was that he reduced the amount of economic loss by one third to represent the claimant not discharging his obligation to mitigate his damages. He then calculated past-economic loss assessed, on his assertion at [302], as a buffer for the past but then calculated a specific amount and reduced the total by a third.
It is not entirely clear on what basis the Member found that a reduction of one third of past economic loss properly represented a response to the insurer's submission that the claimant, on his own evidence, was capable of earning at least the statutory cap of $260,000 a year. It is the contention of the insurer in these proceedings that the Member has failed to give adequate weight to the evidence concerning the claimant's ability to work after his surgery. That amounts to jurisdictional error: Li at [72].

[17]

The claimant's submissions

As noted above, the claim for economic loss was approximately $5.5 million but the Member awarded only approximately $1.6 million after taking into account significant discounts for residual earning capacity as a general practitioner.
The Member accepted that the claimant has made no reasonable or legitimate attempt to mitigate his damages CB 99 [291]. Notwithstanding this reference to mitigation, that is in effect a finding that Dr Chan had residual capacity to work as a general practitioner although he was not doing so. However, the Member also accepted that the insurer bore the onus of proving what was required for the claimant to enter general practice and had adduced no such evidence (CB 99 [292]).
Nevertheless, the Member made significant discounts in respect to residual earning capacity. The insurer's submissions make no reference to these significant discounts. Contrary to insurer's submissions CB 56 [80], the Member plainly gave "adequate weight to the evidence concerning the claimant's ability to work after his surgery". However, and in any event, also contrary to insurer's submissions CB 56 [80], there would only be jurisdictional error in the sense considered in Li if the Member had given no weight to the evidence concerning residual earning capacity.
First, the Member reduced the amount for past economic loss by 33% to take into account past residual earning capacity (CB101 [303])
Secondly, the Member reduced the amount for future economic loss by $1041.66/week net to take into account future residual earning capacity.
Thirdly, the Member then, in addition to that reduction for future residual earning capacity, only awarded future economic loss calculated for 3 years, because that was the period he found would be necessary to retrain as a general practitioner, after which he concluded Dr Chan could have been earning more than the statutory maximum as a general practitioner (CB 105 [332]).
There was no evidence adduced by the insurer concerning the practical reality of a middle-aged former surgeon obtaining employment as a general practitioner either with or without retraining.
As the figure awarded took into account residual earning capacity, there was no error of law in the reasons in respect to "mitigation". The concept of 'failure to mitigate' in the context of a claim for damages for economic loss can only connote taking into account residual earning capacity in the assessment of loss. It doesn't matter whether the claimant in fact obtains other work. The enquiry, consistently with the principle that damages are awarded for loss of capacity to earn, not actual lost income, is whether and, if so, to what extent, the claimant could still earn income if work was in fact obtained. The precise detail of an assessment of damages for economic loss which takes into account residual earning capacity is not subject to judicial review.

[21]

The insurer's submissions

The insurer contended that the size of the award made by the Member was manifestly excessive. The circumstances of the case as set out in the evidence before the Member was to such effect that the size of the award itself indicated an error on the part of the Member. More specifically, the insurer contends that, having regard to the evidence available to the Member, no reasonable decision maker in his position could have: 1. Come to a conclusion that the claimant's right shoulder injury was causally related to the accident; and 2. Come to a conclusion that the award of damages made by the Member was reasonable and reflective of the evidence before him. 3. Concluded that the claimant was entitled to damages for economic loss.
In Cervantes, the Court of Appeal dealt with a case where an insurer in a motor vehicle accident case such as this complained of administrative error in the Assessor's award for past and future economic loss. Basten JA, with whom the other Members of the Court agreed, said at [43]: "The actual monetary value of the award may in some circumstances be indicative of error. Whether that is so will depend upon the circumstances of the particular case."
It is the insurer's contention that the finding by Basten JA is apposite to the present case. On the evidence before the Member, including the minor nature of the collision, the evidence available in relation to that issue as well as the evidence from no less than four doctors engaged by the Medical Assessment Service ('MAS') of the State Insurance Regulatory Authority ('SIRA') each of whom contended that the most significant injury suffered by the claimant, an injury to his right shoulder, was not caused by the motor vehicle accident. In the circumstances no reasonable Member in full knowledge of the evidence available could have entered an award such as that entered by the Member.
Much of these following submissions are repetitive and cover other grounds of judicial review, which have already been determined adversely to the insurer. The insurer in this matter contends that the evidence before the Member overwhelmingly demonstrated that the collision was extremely minor and could not have caused any injury to either the claimant or his wife who was a passenger in the claimant's car.
Further, the evidence before the Member demonstrated that irrespective of his shoulder injury, the claimant was capable of working full time as a GP. The evidence disclosed that in that role, the claimant was able to earn an income greater than could be allowed by the Member for loss of income pursuant to section 125 of the Act.
The claimant was driving a late model Maserati coupe. The insurer obtained, and relied upon, documents produced by the car repairer, the Detroit Custom Body Work Pty Limited. The records disclose that the total cost of the repairs, including GST, was $1,442.24.
The insurer provided these documents, and other materials, to a biomedical and mechanical engineer, Mr Michael Griffiths ('the Griffiths report'). The Griffiths report was relied upon by the insurer at the hearing. No report in response was relied upon by the claimant. The Griffiths report noted that no car parts on the claimant's car required replacement. He noted that the damage sustained by the vehicle was primarily superficial with the main issue being damage to paintwork. The Griffiths report concluded that there was no potential for any strain, stress or injury mechanism to the shoulders or thoracic spine to the claimant in the accident. It concluded that the claimant could not have received his shoulder injury in the accident.
Mr Griffiths was not required for cross-examination and claimant did not rely upon any contrary evidence. Mr Griffiths' evidence was therefore unchallenged.
In order to obtain an entitlement to damages for non-economic loss, which was not conceded by the insurer, the claimant made an application to the Medical Assessment Service for assessment of whole person impairment ('WPI'). The claimant was assessed for his WPI by MAS Assessor Dr Kenna ('Dr Kenna'). Dr Kenna carried out an assessment in relation to the claimant's cervical spine of the right shoulder in April 2019. Dr Kenna found that the claimant's injuries did not exceed the relevant whole person impairment threshold. He found that the right shoulder injury was not related to the accident.
The claimant sought a review of that decision by a medical Review Panel. This Review Panel, constituted by three medical assessors, unanimously concluded that the assessment of Dr Kenna was correct in so far as the claimant's WPI did not exceed the relevant threshold, 10%. As with the assessment of Dr Kenna the review panel also found that the right shoulder injury suffered by the claimant was not caused by the subject accident. A review of those decisions to the Court was successful, but the decision of the primary judge was overturned in the Court of Appeal.
The accident occurred on 14 December 2014. The evidence disclosed that the claimant sought no treatment from any other medical practitioner until he saw Dr Cai on 2 February 2015. The claimant and his wife, who was also a claimant in these proceedings saw Dr Cai.
So far as economic loss was concerned, the claimant returned back to work following the accident although he says on reduced hours. However, no claim was made for past economic loss for the 30 months following the accident. Economic loss was sought from that date onwards. No claim for past care was made although a claim for future paid care was made.

[22]

The claimant's submissions

In support of this submission, the insurer refers to Cervantes, a case in which the insurer's application for judicial review was rejected.
As the passage from this decision quoted in the insurer's submissions at CB 40 [6] demonstrates, whether the size alone of an award may be indicative of error depends on the circumstances of the particular case.
In the Cervantes case the Court of Appeal was considering whether an allegedly excessive award of a "buffer" for future economic loss could indicate error. However, in considering that contention, the Court said that, where the "buffer" could be supported by an indicative calculation, that would demonstrate that the size of the buffer did not in itself demonstrate some otherwise unrevealed jurisdictional error.
The Court of Appeal also held at [15]-[16], citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24, that evidence that is relevant to a party's case is not to be equated with a relevant consideration for judicial review purposes, that an applicant for judicial review must identify a legal obligation to take into account a specific consideration but how those considerations are to be taken into account and the weight they are to be accorded are matters for the decision maker.
In this case, the claimant submitted a "Claimant's Updated Schedule of Damages" that provided an express calculation supporting an award of past economic loss of $1,768,434 and future economic loss of $3,433,220 ("FKA-1" p 38).
The Member awarded substantially less and gave reasons for doing so. The actual award was not a figure plucked out of the air. The invocation of the example in Li at [71] of "no sensible decision-maker would have so decided" cannot be made good in this case on the basis of the amount awarded alone. That is because the Member did give reasons and those reasons must be impugned on one of the other grounds identified by the High Court in order for there to be jurisdictional error in this case. In that regard, as noted above, it is not sufficient to demonstrate a wrong finding of fact or illogical or unsound reasoning.
The Member set out his approach to the assessment of economic loss in his reasons. He then summarised the claimant's submission followed by those of the insurer.
The Member made findings and gave reasons concerning his past economic award of $997,233, including findings and reasons concerning causation of injury and residual earning capacity. The calculation was by reference to the maximum statutory figure less a discount for residual earning capacity. There is no allegation that the methodology adopted was contrary to accepted principles for assessing economic loss, apart from the complaint concerning mitigation. The complaints are in only about the factual findings to determine causation.
In respect of future economic loss, the Member accepted a maximum statutory loss of $5,552/week net less $1,041.66 for residual earning capacity and applied a multiplier for only 3 years, with a reduction for 15% vicissitudes, resulting in an award of $558,199.67 (see CB p 105 [332]). Again, the methodology is not impugned as a matter of legal principle. The complaints only concern causation and mitigation.
There is nothing about the figures themselves which demonstrate that they are manifestly excessive. An economic loss award of $1.5 million for a surgeon in his mid-forties who can no longer practice as a surgeon is not a figure which is simply incomprehensible. It could not even be characterised as unusual.
Thus, the amount awarded does not of itself demonstrate that it is "manifestly excessive" in respect to a claim by a man in the position of Dr Chan.
As the insurer's submissions demonstrate, the "manifestly excessive" complaint in truth depends for success on the same complaints that are made concerning the causal connection between the accident and the shoulder injury and/or the complaint concerning mitigation. However, for the reasons given below, those complaints do not demonstrate that no sensible decision maker could have made the findings concerning causation, so the figure is also not "manifestly excessive" for that reason. Similarly, for the reasons given below, the approach to 'mitigation' is not one which no sensible decision maker could have followed.

[25]

The Member's reasoning on this topic

The Member in his determination refers to the thresholds as well as the requirement and the failure of the claimant to mitigate his losses. He calculates damages in accordance with these statutory requirements and predicates them on the evidence provided by Mr Scalia occupational therapist, who was the only expert witness that could provide information on the requirements the claimant would have to satisfy to retrain and practice as a GP to mitigate his losses.
The insurer failed to provide evidence that sets out the requirements that the claimant needed to follow to retrain as a GP. In a report compiled by occupational therapist, Mr Scalia, dated 21 August 2019, the claimant provided evidence regarding the procedures and requirements he needed to complete to be retrained as a GP: "…He would need to complete a GP training programme which takes 3 to 4 years to complete. Dr Chan may be exempt from the final year of training because of his existing skillset however this should be confirmed by the Royal Australian College of General Practitioners (RACGP) (FKA-1 p 312)".
At paragraph [292] of the Member's decision, has relied on the evidence of Mr Scalia: "In its final submission of 7 December 2022, the Insurer's Senior Counsel submits that the Claimant could have worked as a general practitioner in China and also when he returned to Australia. This is a submission without an evidentiary basis. The Claimant has not worked as a general practitioner for many years. Mr Scalia has referred to the training that would be necessary to go into practice as a general practitioner and it is not a given that because the Claimant was qualified as a general practitioner many years ago, he could re-enter general practice in New South Wales without satisfying any further requirements. The best evidence that I have is from Mr Scalia. The Insurer who has the onus, has provided nothing in the way of evidence of what the situation would be in respect of obtaining a licence to work as a general practitioner in Shanghai or to re-enter such employment, when he returns to New South Wales."
The Member subsequently based his calculations for future economic loss on the evidence provided by Mr Scalia. The Member assessed the award for future economic loss for a 3-year period, which was the amount of time Mr Scalia evaluated would take for the claimant to retrain as a GP. The Member did not award the claimant an amount after this period, as the Member conceded that the claimant could effectively, by his own admission, earn approximately $250,000 - 300,000 per annum as a GP, which would be over the statutory threshold.

[30]

The Member's reasoning on the topic

A major issue in contention between the parties is one of causation. The factual dispute is whether the relevant motor accident caused Dr Chan's right shoulder injury.
The Member preferred the evidence of A/P Haber over other doctors on the basis that he was the most qualified doctor (as a surgeon and a sub specialist in shoulders) who treated and operated on the patient. The Member also concluded that A/P Haber's report was the most rigorous and comprehensive of all the medico-legal specialists, he lists the multiple reasons that assisted A/P Haber in coming to his conclusion regarding the causal link. At paragraph [197] of his decision, he stated: "197. In contrast to the quality of analysis of those experts who ruled out any causal connection with the right shoulder injury, consideration of the issue by Clinical Associate Professor Haber's analysis was rigorous. He gave the following reasons for his conclusion that there was a causal connection: a. the Claimant heard a 'pop' in his right shoulder and he experienced some right-sided pain in the region of the right shoulder not immediately but 3 weeks later b. he had a combination of rotator cuff tear and capsulitis c. literature on the subject is clear. Non-traumatic rotator cuff tears are extremely rare in people under the age of 60 d. the most significant risk factor of developing a tear in this age group is acute trauma e. the Claimant does not participate in high-risk sports and has not had any other history of trauma, has not performed inappropriate weightlifting above shoulder height f. the only clear risk factor is the motor vehicle accident it is not unusual for there to be a considerable time delay between the accident and the subsequent symptoms g. this is due to the Claimant potentially sustaining a small or partial thickness tear of the rotator cuff at the time of the accident which did not cause significant symptoms initially largely due to the overlying cervical spine injury h. it is well established that partial thickness tears do gradually deteriorate during time and often become symptomatic once they have become larger i. overlying this is the development of a secondary capsulitis j. secondary capsulitis is very different from a frozen shoulder. It causes increasing pain and severe stiffness which Associate Professor Haber noted at the time of the surgery k. there was therefore a direct causal connection between the motor vehicle accident and the injury namely the rotator cuff tear combined with a secondary capsulitis."

[31]

The insurer's submissions

The assessment of Dr Kenna dealt with injuries to the right shoulder and cervical spine. He noted the lack of evidence following the accident of any symptoms or injuries in relation to the right shoulder and that there was only recorded complaint almost three years after the accident. He opined that the right shoulder injury was not related to the accident (see p 10 of the doctor's reasons).
On 11 April 2019, the review, undertaken by three MAS doctors. On 3 May 2019, the review panel issued a certificate. Again, the review panel considered the causal relationship between the accident and the right shoulder injury. The panel found the following: "It is not medically possible for the motor vehicle crash to have involved a significant injury to the shoulder with periods of absence of recorded symptoms from the right shoulder. The panel was therefore in agreement with the Assessor, who accepted causation to the injury to the neck but not to the right shoulder."
The insurer relied upon reports from Dr Chen, a consultant physician in occupational medicine who provided two reports. One in June 2016 before any complaint of problems with the right shoulder had been made and the second one in October 2018.
In her first report no mention of any shoulder symptoms is recorded. In her second report Dr Chen noted that the claimant had told her in 2016 that he had no immediate pain following the accident. She concluded, given the nearly three-year hiatus between the date of the accident and complaints of pain in the right shoulder, that his right shoulder problems were not causally related to the motor vehicle accident.
The insurer also relied upon two reports from Dr Higgs, an orthopaedic consultant, biomedical and forensic engineer. This highly qualified doctor was provided with extensive material including medico-legal and treating doctors' reports relied upon by both parties. At paragraph 6.5 of his report the doctor noted that the claimant's physiotherapist, when seen six days after the accident, did not make any comment as to the presence or otherwise of any right shoulder girdle symptoms.
In his October 2018 report, Dr Higgs also made comment on reports provided and relied upon by the claimant. At paragraph 6.10 he noted that in November 2018 Dr Conrad reported to the claimant's then solicitors and failed to record any observations in regard to causation of the rotator cuff injury. Dr Giblin, orthopaedic surgeon, provided a report to the claimant's then solicitors in the same month, November 2018. He noted that there was no real discussion by Dr Giblin of causation of the claimant's right shoulder injury.
Dr Higgs noted a report from A/P Haber, orthopaedic surgeon, of July 2019 addressed to the claimant's subsequent solicitors. It was A/P Haber's opinion on which the Member relied to find that the right shoulder injury suffered by the claimant was related to the accident. Dr Higgs concluded that the claimant did not suffer an injury to his cervicothoracic spinal region in the motor vehicle accident. He opined that if it had been the case that the claimant had suffered from an acute rotator cuff injury at the time of the accident it would have been likely that he would have suffered from a sudden onset of pain more severe than was described.
In his second report prepared in August 2020, following from the provision of further material, including the report of Mr Griffiths, Dr Higgs essentially repeated his earlier conclusion that the right shoulder injury could not have been caused by the accident.
As noted, the claimant also relied upon a number of medico-legal reports. None provided any commentary or opinion of the report of Mr. Griffiths. A report from Dr Conrad of December 2015 noted symptoms in his cervical spine but none in his shoulders. An examination of both shoulders by the doctor noted that he had full movements with no neurological signs in either arm. In a report of January 2018, he noted no neurological signs in either arm.
A report of Dr Giblin of November 2015 noted that the claimant complained of neck problems with quick movements. The doctor noted, however, that the claimant had a full range of movement of his shoulders. There was no complaint of problems with the shoulder.
In a subsequent report of February 2018, Dr Giblin continued to record the claimant's complaints as neck pain bothering him with looking up or quick movements. He thought the claimant had soft tissue injuries to his cervical spine and thought that the claimant was "starting to develop rotator cuff disease". He did not link the rotator cuff disease to the motor vehicle accident.
Dr Giblin provided a third report in November 2018 following surgery in July that year. He noted the surgery but made no specific causal link between the motor vehicle accident and the shoulder injury.
The surgery was carried out by A/P Haber, an orthopaedic surgeon. A report of May 2018 recorded nothing concerning the motor vehicle accident. However, the doctor said, "I feel the current diagnosis is consistent with the reported mechanism". It is not known what that mechanism is. He otherwise gave no opinion as to any causal mechanism between the accident and the right shoulder injury.
Finally, the claimant relied upon a report from Dr Porteous, an occupational physician. In his report of July 2019, Dr Porteous noted the opinions of Dr Haber but then said: "The three year gap between the subject accident and the onset of significant right shoulder symptoms does at face value make it difficult to conclude that the right shoulder condition was caused by the subject accident, however, when looking more closely, there has in fact been non-specific shoulder symptoms reported since the accident."
Those symptoms, however, were only reported some three years after the accident. In the circumstances of the other medical evidence being that the lack of complaint meant that it was not possible that the right shoulder injury was caused by the motor vehicle accident the opinion of Dr Porteous was weak.
The Member dealt with the causation issue relating to the shoulder injury, and the medical evidence relating thereto, from paragraph [193]. He rejected Dr Kenna's conclusion that the right shoulder injury was not related to the accident because Dr Kenna had not committed "himself to any analysis of the pathogenesis of right shoulder injury". However, he then quoted from Dr Kenna's certificate the following: "(By October/November 2017) he started to have increasing low pain with the right shoulder and then developed also a frozen shoulder indicating pathology occurred well post motor vehicle accident…"
What Assessor Kenna had done was reject the view that the right shoulder injury was related to the accident because the pathology occurred well after the motor vehicle accident. Assessor Kenna having found that there was no link between the accident and the shoulder injury for reasons he identified was not then required to go on and identify the reason why the claimant had gone on to develop injuries in his right shoulder leading to the surgery.
Yet it was the absence of an explanation as to how the injury occurred that caused the Member to disregard the opinion of Assessor Kenna. In that regard the Member has failed to give proper weight to the report of Assessor Kenna. The decision of Member Stern rejecting the decision of Assessor Kenna lacked evident and intelligible justification.
The Member then went on to deal briefly with, and dismiss, the opinions of the three doctors who made up the Review Panel: Member's decision at [195]-[196]. The Member referred to the "analysis, such as it was" of the Panel's decision as being "scant in detail or rigor". He then quoted a small part of the decision which referred to the paucity of documentary evidence to support a finding that the injury to the right shoulder had occurred consequent upon the motor vehicle accident.
The findings of the Panel were in line with many other doctors in this matter, namely, the failure to make any complaint in relation to the shoulder for nearly three years after the accident was critical to a finding that the shoulder injury could not be related to the motor vehicle accident. It is difficult to understand how that is scant in detail or rigor. However, apart from assessing that finding as being scant in detail or rigor, the Member gave no other reason for rejecting the opinion of the three MAS Panel doctors.
The opinions of the four MAS doctors were a matter of considerable relevance, indeed great importance, in this matter. The fact that the Member has failed to give them any weight amounts to jurisdictional error: See Li at [72]. Further, the decision to reject the decision of Assessor Kenna and the doctors of the Review Panel lacked intelligible justification: See Li at [76].
In paragraph [196], the Member referred to the opinion of the panel that it was not medically possible for the accident to have caused the injury as being a "categorical statement". It is unclear whether that is meant to be a criticism of the Panel. If it is, and if it is a basis on which he rejected the Panel's findings, the reason why that would be such a basis for the rejection of the findings is completely unclear. He has thus provided insufficient reasons for rejecting the panel decision, an error of law.
From [204] onwards, the Member sought to deal with the report of Dr Dalton. In the following paragraph he referred to some, unidentified, comments of Dr Dalton which suggested to the Member that Dr Dalton had "adopted a position in this case of strong opposition to the proposition that the accident caused the shoulder condition rather than just stating his views in an objective way".
It is difficult to understand what the Member meant by that statement. It suggests that he was finding that Dr Dalton was not giving objective evidence although apart from a vague reference to "comments made by Dr Dalton", no other basis is given for finding, as inferentially he has, that Dr Dalton was not being objective. Dr Dalton was clear in his report that he did not consider that there could be any relationship between the motor vehicle accident and the shoulder injury.
The Member referred to Dr Dalton not holding "back in his criticisms of others" namely other doctors who have reported in the matter. The tenor of what the Member seems to be asserting is that in "not holding back in his criticism of others", Dr Dalton's report and the opinions contained therein is somehow rendered useless or wrong. If that be what the Member intended, it lacks intelligible justification. Dr Dalton was critical of Dr Porteous and Dr Haber. That is something that is hardly new, particularly in matters such as this. Why it should be the basis for criticism by the Member is completely unclear.
The basis for the apparent rejection of the opinion of Dr Dalton lacked evident and intelligible justification. His position verges on being irrational.
In paragraph [209] the Member set out what Dr Dalton had said on page 12. In the second paragraph therein appears the following statement made by Dr Dalton: "I would also add that in my clinical practice as a shoulder specialist, I frequently see patients who are advised to undergo rotator cuff surgery and related procedures when their pain is not directly related to the underlying cuff pathology. …" (emphasis added).
Thus, the Member quoted Dr Dalton identifying his clinical practice as being a shoulder specialist. By contrast, in paragraph [198] the Member said this: "It is significant that associate Professor Haber is the only shoulder sub-specialist to offer an opinion. He is an expert in the area of shoulders."
That statement that he is the only shoulder sub-specialist to offer an opinion is clearly wrong. The Member quoted Dr Dalton as having a clinical practice as a shoulder specialist. It seems that the Member sought to rely on the opinion of Dr Haber over that of the four MAS doctors, Dr Chen, Dr Higgs and Dr Dalton. A primary plank of that decision was because the Member was of the view that the only medical practitioner who had given evidence in the matter who was a "shoulder sub-specialist" was Dr Haber. The finding by the Member is irredeemably flawed. The Member clearly failed to give any weight to the fact that Dr Dalton himself was a shoulder specialist.
In [213] the Member concluded that Dr Dalton had "entered into the foray [sic - fray] as an advocate for the position of the insurer". There is simply no justification for making that finding. Dr Dalton had a clear and unequivocal opinion as to the lack of causal relationship between the accident and the shoulder injury. He set it down in writing. The fact that he may have been critical of another doctor's opinion is of no relevance to his decision making. The Member clearly took a stance against the opinions of Dr Dalton and sought to justify sidelining those opinions. His attempt at justification for sidelining those opinion was illogical or, perhaps, irrational.
As noted, the insurer had relied upon reports from Drs Chen and Higgs. Both doctors gave clear and consistent opinions that the right shoulder injury could not have been related to the motor vehicle accident. They were obviously important planks in the insurer's case. However, apart from making reference to their evidence at paragraphs [112] - [119], which recited some of the history and findings made by the doctors, the Member gave no reasons for rejecting, as inferentially he must have, their opinions.
Whilst the Member had erroneously considered Dr Haber to be the only shoulder sub-specialist, there is no apparent reason given for the Member to conclude that the opinions of Drs Chen and Higgs were incorrect. The Assessor has failed to engage with submissions put by the insurer about the opinions of Drs Higgs and Chen. The inadequacy of the reasoning in that regard is a species of jurisdictional error.

[32]

The claimant's submissions

As was noted in the Court of Appeal in Tham Huu Pham v Shui (2006) 47 MVR 231; [2006] NSWCA 372 at [98] per Santow JA: "The reasons which are incorporated in a certificate may be evidence as to the matters certified, but extreme caution is required in admitting such evidence in relation to damages for economic loss governed by Part 5.2, having regard to the different methodology of 5.3."
Assessor Hanna and the Review Panel, which the insurer apparently contends has determinative status in this case, were both considering a different question to that which the Member was deciding.
Further, neither Assessor Hanna or the Review Panel had the benefit of the opinion of A/P Haber, who was the treating surgeon and a more qualified practitioner than any of them.
A/P Haber was Dr Chan's treating doctor and when initially engaged as such he volunteered the opinion that the rotator cuff tear was consistent with the mechanism of injury.
Dr Chan first saw A/P Haber on 19 March 2018. In his letter of the same date reporting to Dr Chan's GP, he states ("FKA-1" p 240): "As you mentioned he was involved in a motor vehicle accident and he has had ongoing neck and shoulder girdle problems."
A/P Haber reviewed Dr Chan on 14 May 2018 (FKA-1 p 241) after an MRI that had reported "under surface articular tear of the anterior supraspinatus". A/P Haber states in his report: "Review of the MRI did confirm what appeared to be a minimally retracted full thickness rotator cuff tear. Clinically he has ongoing significant symptoms with severe pain when trying to use his right arm at shoulder level. He has significant trouble sleeping at night. … As I have recommended the procedure of arthroscopic rotator cuff repair approval is required. I feel the current diagnosis is consistent with the reported mechanism."
In his report dated 25 July 2019, A/P Haber notes: At page 2 (FKA -1 p258): "We discussed the natural history of rotator cuff tears with the risk of tear progression which is associated with poor progress with the development of an irreparable tear and cuff tear arthropathy." At page 3 (FKA -1 p259): "I note the report written by Assessor Clive Kenna who I understand is a General Practitioner. Dr Kenna states 'The following injuries were not caused by the motor accident: Right shoulder-soft tissue injury'. I feel the complexity of Dr Zion Chan's shoulder condition has been oversimplified. I suspect this comment is based on his observations regarding the timeframe of symptoms. Nevertheless, he does state in his report that he obtained a history that Dr Zion Chan mentioned 'he heard a pop in his right shoulder' and that he 'experienced some right-sided pain in the region of his right shoulder, not immediately but 3 weeks later'."
The right shoulder was originally assessed for soft tissue injury. However, A/P Haber has diagnosed Dr Chan with a "Rotator cuff - Full thickness tear. Secondary capsulitis".
A/P Haber then opines at FKA-1 p 260: "Regarding the aetiology of his current condition. It was noted at the time of surgery that he had a combination of rotator cuff tear and capsulitis. The literature on this subject is clear. Non-traumatic rotator cuff tears are extremely rare in people under the age of 60. The most significant risk factor of developing a tear in this age group is acute trauma. As Dr Chan does not participate in high risk sports, he has not had any other history of trauma and has not performed inappropriate repetitive weight lifting above his shoulder, the only clear risk factor is the motor vehicle accident … … I consider it inappropriate to regard his 'right shoulder - soft tissue injury' has not been caused by the motor vehicle accident. It is not unusual for there to be a considerable time delay between the accident and subsequent symptoms. This is due to him potentially sustaining a small or partial thickness tear of the rotator cuff at the time of the accident which did not cause significant symptoms initially largely due to the overlying cervical spine injury. It is well established fact for these partial-thickness tears do gradually deteriorate over time and often become symptomatic once they have become larger. Overlying this is the development of secondary capsulitis (which is very different from a "frozen shoulder"). This causes increasing pain and stiffness which was noted at the time of surgery."
A/P Haber's diagnosis as to the cause of injury is unequivocal. He states ("FKA-1" p 260): "I therefore consider that there is a direct causal connection between the motor vehicle accident which occurred on the 14th of December 2014 and the injury sustained to his shoulder, namely the rotator cuff tear combined with secondary capsulitis."
Against the expertise of A/P Haber, the insurer deploys the opinion of Drs Dalton, Griffiths and Higgs. Of these, only Dr Higgs is an orthopaedic surgeon and none of them have examined Dr Chan.
Dr Dalton appears to predicate his medical opinion as a Rehabilitation Physician on the forensic accountant report of Tamara Lindsay ("FKA-1" p 186). This seems to ignore the history given by Dr Chan that the right shoulder only became a problem in the latter half of 2017.
Dr Higgs, the only orthopod qualified by the insurer, has undertaken a review of the documents. Dr Higgs' concluded is as follows: "8.1 If it had been the case that Chan had suffered from an acute rotator cuff injury at the time of his motor vehicle accident on or about 14/12/14, then it probably would have been the case that he would have suffered from sudden onset pain that was more severe than was described as subsequently experienced (emphasis added) FKA -1 p 378. … 6.1.3 The report that has been prepared by Mr Griffiths might cause there to be a conclusion that the mechanics of the collision, that occurred on or about 14/12/14 could not have been cause for Chan to have suffered from any injury to his cervical spinal region. It has been my opinion that the forces required for a strain injury to the cervical spine can vary greatly (FKA -1 p 416)".
First, Dr Chan did not describe a level of pain when completing the claim form in respect of the injury to his right shoulder. Second, the degree of pain caused by a frank injury can vary both objectively and subjectively. Third, it does not follow that because the most likely pain symptom was not experienced that the injury did not occur at all.

[33]

The Member's Determination

It is plain from the evidence outlined above, that there was material available to the Member to make favourable findings concerning causation. That is, there is no finding relevant to causation which can be subject to judicial review on the ground that there was simply no evidence to support it.
The insurer is thus driven to the contention that no sensible decision maker could have made the findings about which complaint is made. But in the circumstances of this case, given the evidence outlined above, that contention descends, impermissibly, into assertions concerning the weight of evidence and the persuasiveness of the evidence to the contrary. The insurer does not point to any evidence which is not mentioned in the reasons which, if considered, must have caused the hypothetical sensible decision maker to come to a contrary conclusion concerning causation. Similarly, the insurer does not identify any irrelevant evidence which was nonetheless determinative of the Member's conclusion that the causative link between accident and shoulder injury had been established on the balance of probability.
The Member was entitled in his capacity as a tribunal of fact making a determination on the merits to prefer the opinions of A/P Haber to the opinions of the four MAS doctors for the reasons given that he gave. There is certainly no demonstrable jurisdictional error in accepting the opinion of A/P Haber that the right shoulder injury was caused by the motor accident.
In respect of the opinions of Drs Dalton, Griffiths and Higgs the Member's observation at CB 82 [185] demonstrated an acceptable approach: "It is reasonable and probably important to note the areas of expertise of the various people who assessed the Claimant. They came from a variety of areas of expertise including occupational medicine, orthopaedic surgery, rehabilitation physician, skeletal medicine and occupational therapy. One of them was Associate Professor Richard Haber, an orthopaedic surgeon who has a sub-speciality in shoulder surgery."
The Member engaged in a detailed evaluation of the competing evidence at CB 83 [193] onwards noting that A/P Haber treated Dr Chan and had examined him on a number of occasions in contrast to Dr Dalton, a rehabilitation physician, who had not physically examined Dr Chan.
Even if, as the insurer complains, the Member did not refer to Dr Dalton's expertise as a shoulder specialist, that is not a sufficient basis to find that no sensible decision maker could have made the causation findings. Dr Dalton's expertise is not of itself sufficient to require a different finding and it is not a sufficient failure to take into account a relevant consideration to justify quashing the determination.

At a glance

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Judgment (37 paragraphs)

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Cases Cited (14)