Bell v Allianz Insurance Australia Ltd

Supreme Court of NSW|2022-08-18|Before: Basten AJ, Mr J

Solicitors: Barwick Boitano (Plaintiff) Sparke Helmore Lawyers (First Defendant) Crown Solicitor (Second/Third Defendants) File Number(s): 2021/00333069 Decision under review Court or tribunal: President, Personal Injury Commission of NSW Date of Decision: 26 August 2021 Before: Tajan Baba (as delegate of President) File Number(s): 10250981

Background

The underlying facts, which occurred on 11 July 2018, arose when a man attempted to steal a Harley-Davidson motorcycle belonging to the plaintiff in broad daylight from a carpark where it had been temporarily parked while the plaintiff went into nearby commercial premises. The plaintiff heard the person try to start the motorcycle and ran after him. The man was unable to start the engine and was wheeling the motorcycle away. As the plaintiff closed in, the man saw him and pushed the motorcycle towards the plaintiff, so that it fell on him, with the foot peg causing a flesh wound to his leg. Another motorcycle then approached, picked up the would-be thief as a pillion passenger and turned as if to drive towards the plaintiff. The plaintiff, rightly or wrongly, treated that conduct as threatening and formed the belief that the would-be thief and his colleague were members of a motorcycle gang. The man was later apprehended by police and prosecuted.
A medical dispute was referred to an assessor under the Motor Accident Injuries Act 2017 (NSW), the accident having occurred after the commencement of that Act. The medical assessor, in a certificate issued on 28 February 2021, found that of the psychological injuries referred for assessment, "none was related to the motor accident". He therefore concluded that an assessment of the degree of permanent impairment was not required.
On 3 June 2021, the plaintiff's solicitor lodged with the Personal Injury Commission an application for review of the medical assessment certificate. Pursuant to s 7.26(5) of the Motor Accident Injuries Act the President (in practice his delegate) must make a determination as to whether there is "reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application". On 26 August 2021, the delegate to whom the application was referred, not being satisfied as to there being reasonable cause to suspect that the medical assessment was incorrect, dismissed the review application. These proceedings are by way of judicial review of that decision.
There is an unusual feature of this case: the insurer (the first defendant) has entered a submitting appearance and thus does not oppose the relief sought by the plaintiff. Nevertheless, as the plaintiff accepts, the court must be satisfied that this is an appropriate case in which to set aside the decision of the delegate.

Issues on review

The summons set out ten separate grounds in support of the application for review, including a failure by the delegate to take account of relevant considerations, a ground having nine particulars.
This element of superfluity may be put to one side. There was a basis in the assessor's reasoning which should have given rise to a reasonable suspicion on the part of the delegate that the assessment was incorrect in a material respect. Put succinctly, the issue may be identified as follows.
First, the assessor was satisfied that the symptoms described by the plaintiff, which he accepted as true, were "consistent with a post-traumatic stress disorder diagnosis". [1] However, the assessor continued: "With respect to Criterion A, there would need to be a traumatic life-threatening event, which understandably within this narrative is Mr Bell fearing for his life and his safety from others, 'the bikies' in the narrative. There is documented fear of reprisals from bikies."
Secondly, the assessor considered (correctly) whether that there was a "motor accident" that caused the injury. A motor accident is defined (in part) to mean "an incident or accident involving the use or operation of a motor vehicle". [2] The assessor found that the injury resulted from the perceived threats to the plaintiff's safety and the feeling of intimidation. The assessor continued: [3] "I am uncertain whether this constitutes part of a motor vehicle accident, or even a motor vehicle accident."
The assessor further observed that "the ultimate adjudication may well be made by others". For reasons which will be explained below, he was at least arguably correct in this observation.
The third step in the reasoning was where the possible error arose. If it remained open (as the assessor assumed it did) that the threats and intimidation formed part of a single incident involving the use or operation of a motor vehicle, then it was necessary to assess the resulting whole person impairment. It was only if the threats and intimidation did not form part of a motor accident that no assessment of whole person impairment was required. Accordingly, at least on the face of the reasons, if the assessor had not determined the scope of the motor accident the assessor erred by not making that assessment.
That it was not part of the medical assessor's function to determine the scope of a motor accident, where that issue was controversial, was explained by the Court of Appeal in AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales), [4] ("AAI Ltd") McColl JA stating: "If, however, in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events, and leave it to the court to determine whether or not the events constitute a 'motor accident'."
Whether the issue was to be determined by a court or by a claims assessor under the separate process provided for in s 7.36, as a precondition to the commencement of court proceedings (absent an exemption certificate), [5] the case states a legal proposition that the issue is not, understandably, one for a medical assessor.
Unless there was some other factor in play, there appeared to be a failure on the part of the assessor to carry out his statutory function of assessing whole person impairment. It was not in issue that he did not do that. There was therefore reasonable cause to suspect that that failure rendered the certificate incorrect in a material respect.
That raises a question as to whether there was any justification for the delegate not so finding. The delegate was required to assess the application by reference to the "particulars" set out in it. The particulars in effect characterised the error in two ways. The first, set out by the delegate at par 6(a), read as follows: "The Assessor was not required to determine whether the events which were the subject of the applicant's injury constituted a motor accident. The Assessor did this and in doing so, strayed beyond the statutory limits under which he was confined and did not conduct his assessment in compliance with the Guidelines."
The alternative particular was identified at par 6(f) in the following terms: "The Assessor failed to assess the degree of permanent impairment caused by the applicant's psychiatric condition, although this was the task he was required to do under clause 6.5 of the Guidelines."
In short, either the assessor had decided the issue adversely to the plaintiff (no motor accident) which was beyond his power, or he had not, in which case there was a failure to complete his statutory function.
The delegate dealt with the first proposition on the following basis: [6] "The Assessor acknowledges twice in this paragraph that he is not in a position to make an 'ultimate adjudication' in respect to causation 'which may well be made by others'. He states that from a 'psychiatric opinion' even if the part of the incident involving the motorcycle constituted a motor vehicle accident, it was not the cause of the applicant's psychiatric injury because Criterion A for PTSD would not be satisfied from that part of the incident."
Accepting that it was open to the delegate to reason in that way, it became necessary for the delegate then to explain why, leaving the question of the extent of the events encompassed by the "motor accident" open, the assessor failed to assess whole person impairment.
In respect of the alternative approach identified in particular (f), the delegate reasoned as follows: [7] "In respect to the applicant's final submission that the Assessor failed to assess the degree of permanent impairment caused by the applicant's psychiatric condition, although this was the task he was required to do…, given that the Assessor determined that the applicant's psychiatric injury was not caused by the motor vehicle accident, it follows that there is no psychiatric impairment that can be assessed for the purposes of whole person impairment resulting from the subject accident."
The last conclusion cannot be right: the only reason for not assessing whole person impairment was that the assessor had made a finding that the threats and intimidatory conduct were not part of the motor accident. Yet that was the very determination which the delegate was satisfied the assessor had not made.
The remaining question is whether that patent error on the part of the delegate constituted an error of law, apparent as it is on the face of the delegate's reasons. There is well-known authority for the proposition that a perverse or illogical finding of fact does not constitute an error of law. [8] However, while it is open to describe the error as perverse or illogical, it is more than that. The delegate failed to address a clearly articulated proposition put forward by the plaintiff, based on the finding of fact which the delegate accepted (namely that the assessor had not determined the scope of the motor accident), namely that the assessor had failed to complete the exercise of his statutory function. By failing to address that proposition in those circumstances, the delegate had himself failed to exercise the statutory function under s 7.26(5).
The plaintiff also submitted that the delegate had approached the issues raised by the plaintiff as if determining the correctness or otherwise of the medical assessment. That, as the plaintiff correctly submitted, was not the delegate's function. That function was only to consider whether there was reasonable cause to suspect error. Although the delegate expressed a final conclusion by reference to the correct legal criterion, the reasoning to that conclusion suggested a different approach had been taken.
Further, the plaintiff sought to identify the outcome of the assessment as manifestly unreasonable in the sense that it failed to comply with a standard of reasonableness implicit in the statutory conferral of the function. [9]
Although it is not necessary to determine these further grounds of challenge, in circumstances where legal error has been identified in the reasoning of the delegate, there is nevertheless good reason to accept that both further ways of describing the error should be upheld. That reasoning need not be spelt out, as the grounds on which the plaintiff is entitled to the relief sought in the summons are clearly established.

Suitors' Fund Act 1951

As the plaintiff submitted, he has been exposed to significant legal expenses in the face of an error on the part of an administrative officer. He seeks a certificate under s 6 of the Suitors' Fund Act 1951 (NSW).
Although an indeterminate order for costs was sought in the summons, senior counsel for the plaintiff conceded that the court would not order costs against the insurer. On the basis that the insurer filed a submitting appearance promptly (within days) after the proceedings were commenced and was not responsible for the error committed by the delegate, the concession was appropriate, given the reasoning of the Court of Appeal in Lou v IAG Ltd t/as NRMA Insurance. [10]
In Lou, with respect to an application under the Suitors' Fund Act, Payne JA addressed two issues of present relevance, namely: "58 … (1) Whether the decision of a claims assessor under the Motor Accidents Compensation Act is a decision of a 'court or tribunal' for the purposes of the Suitors' Fund Act, and (2) Whether a judicial review pursuant to s 69 of the Supreme Court Act constitutes 'an appeal' for the purposes of s 6 of the Suitors' Fund Act."
The question in the present case is not whether the decision of the medical assessor was a decision of a "court", but whether the decision of the delegate was a decision of a "court". Lou does not assist the plaintiff directly in that respect. Indeed, as appears from the discussion by Payne JA, [11] the decision of the proper officer under what was then s 62 of the Motor Accidents Compensation Act 1999 (NSW), was not the decision of a "court". So much had been held in Henderson v QBE Insurance (Australia) Ltd. [12]
Henderson concerned an application for referral of a matter for further assessment, pursuant to s 62 of the Motor Accidents Compensation Act. The present case involved a decision of the delegate (in place of a proper officer under the former legislation) under s 7.26(5), which is the equivalent of s 63. That would not, of itself, provide a basis for distinguishing Henderson. However, as noted above, the structure of decision-making has changed with the enactment of the Motor Accident Injuries Act. The person now responsible for referral to a review panel under s 7.26 is the President of the Personal Injury Commission. Pursuant to s 10(1) of the Personal Injury Commission Act 2020 (NSW) the President must be "a judge of a court of record". The principles discussed in Lou may require reconsideration of the application of Henderson under the current legislation. However, whether the outcome would differ need not be resolved in this case.
There is an entirely separate reason why the plaintiff cannot obtain a certificate under the Suitors' Fund Act. The plaintiff sought a certificate under s 6, but that section only provides for the grant of a certificate to the respondent in respect of the costs of a successful appeal. It does not permit the grant of a certificate to an appellant, such as the plaintiff in the present case. Accordingly, the power of the court to grant an indemnity certificate for the plaintiff's costs is not engaged.
Before leaving the reasoning in Lou, it may be noted that some support for the conclusion that a suitors' fund certificate was available was found in orders made by the Court of Appeal in Rodger v De Gelder [13] and in Meeuwissen v Boden [14] . But each of those cases involved an appeal from a decision of a single judge of the court and the indemnity certificate was granted to the respondent to that appeal. Neither involved the question of whether an indemnity certificate could be granted with respect to a decision of a medical assessor or of the proper officer under the Motor Accidents Compensation Act.
It is possible that the plaintiff's predicament may be covered by s 6C of the Suitors' Fund Act, permitting the Director-General to pay an amount from the fund towards the costs of a party to an appeal or other proceedings where the party is not otherwise entitled to a payment from the fund. Whether the reference in s 6C(1)(a) to a party who is "liable to pay costs in the appeal or proceedings" includes the responsibility of the party to pay his or her own lawyers is unclear. In any event, the discretionary power is conferred on the Director-General, with the concurrence of the Attorney-General, and is a matter of executive discretion in the exercise of which this Court has no role.
Accordingly, the application for an indemnity certificate under the Suitors' Fund Act must be refused.

Conclusions

For these reasons, the Court makes the following orders: 1. Set aside the decision of the delegate of the President of the Personal Injury Commission of 26 August 2021 refusing to refer the plaintiff's application for review of a medical assessment certificate. 2. Direct that the President (or his delegate) determine the plaintiff's application for review according to law.

Endnotes

Medical assessor's reasons, par 20.
Motor Accident Injuries Act, s 1.4(1), motor accident.
Medical assessor's reasons, par 21.
[2016] NSWCA 368 at [161] (Macfarlan and Simpson JJA agreeing).
Motor Accident Injuries Act, s 6.31; see AAI Ltd at [197] (Simpson JA, Macfarlan JA agreeing).
Delegate's reasons at par 11.
Delegate's reasons at par 19.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 (Mason CJ); [1990] HCA 33.
Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 at [26] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ);
(2019) 101 NSWLR 606; [2019] NSWCA 319 at [42]-[53] (Payne JA, Gleeson JA agreeing).
Lou at [62]-[63].
[2013] NSWCA 480; 66 MVR 69 at [56] (Beazley P, Tobias AJA agreeing).
(2011) 80 NSWLR 594; [2011] NSWCA 97.
(2010) 78 NSWLR 143; [2010] NSWCA 253. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2022

Suitors' Fund Act 1951(NSW)

(2019) 101 NSWLR 606

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