Brammer v AAI Limited t/as AAMI

Supreme Court of NSW|2021-07-08

Judgment

HER HONOUR: This is a judicial review of the decisions of two Medical Assessors and the Proper Officer of the State Insurance Regulatory Authority ("SIRA") under the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act").
The plaintiff is Jennifer Brammer. The first defendant is AAI Limited t/as AAMI ("the insurer"). The second defendant is SIRA. The third defendant Philippa Harvey-Sutton in her capacity as a Medical Assessor of the State Insurance Regulatory Authority. The fourth defendant is Kathryn Williamson in her capacity as a Medical Assessor of the State Insurance Regulatory Authority. The second, third and fourth defendants have filed submitting appearances. The parties relied on a joint court book.
By amended summons filed 27 April 2021, the plaintiff relevantly seeks: 1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and certificate of the third defendant, Dr Philippa Harvey-Sutton, in her capacity as a medical assessor of the second defendant, SIRA dated 16 December 2019, made purportedly pursuant to s 61 of the MAC Act ("the Medical Assessor's decision). 2. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and certificate of the fourth defendant, Kathryn Williamson, in her capacity as a medical assessor of SIRA, dated 10 August 2020, made purportedly pursuant to section 61(10) of the Act ("the combined certificate"). (3) An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the proper officer of SIRA, Alexander Tilley, dated 3 November 2020, made purportedly pursuant to section 63 of the Act, dismissing the plaintiff's application for review of the decision ("the proper officer's decision"). (4) An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any step or further step in reliance on any of the decisions referred to in paragraphs (1)-(3) ("the decisions"). (5) An order in the nature of mandamus, remitting the matter to the second defendant Personal Injury Commission of New South Wales for determination by a different medical assessor and/or (with respect to the relief sought in paragraph 3) for determination by the President pursuant to s 63, according to law.

Extension of time

The plaintiff sought an order that an extension of time to commence proceedings, pursuant to Rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") with respect to the Medical Assessor's decision and the combined certificates. The insurer does not oppose an extension of time being granted to the plaintiff to bring proceedings in relation to the certificates issued by the Medical Assessors. I grant an extension of time to file the summons.
If the decision of the Medical Assessor is set aside, the insurer agrees that the decision of the proper officer and the combined certificate should be set aside.

Background

On 26 May 2012, the plaintiff was involved in a motor vehicle accident ("the accident"). The insurer is the CTP insurer of the vehicle at fault in the accident.
There was a dispute between the plaintiff and the insurer as to the medical assessment matter in s 58(1)(d) of the MAC Act, namely, whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. Accordingly, an application for assessment of that dispute was made to SIRA.
On 16 December 2019, Assessor Harvey-Sutton ("the Medical Assessor") issued a certificate and a statement of reasons made in accordance with Part 3.4 of the MAC Act ("the Medical Assessor's decision"). The certificate certified that 0% of the plaintiff's whole person impairment (WPI) was causally related to the injuries sustained in the accident.
As more than one medical assessor was required to assess whether the plaintiff's WPI exceeded 10%, the plaintiff was also assessed by Medical Assessor McGlynn, who issued a certificate dated 24 July 2020. He assessed 5% WPI in relation to a skin condition (this decision is not the subject of this judicial review).
A combined certificate was then issued by Medical Assessor Kathryn Williamson, purportedly pursuant to s 61(10) of the MAC Act, on 10 August 2020, certifying that the plaintiff's total WPI was 5% ('the combined certificate").
In accordance with cl 16.3 of the SIRA Medical Assessment Guidelines, the plaintiff could not seek review of the Medical Assessor's decision until after the combined certificate was issued.
The plaintiff then lodged an application for review of the Medical Assessor's decision, pursuant to s 63 of the MAC Act.
On 3 November 2020, the proper officer of SIRA dismissed the plaintiff's application for review of the assessor's decision ("the proper officer's decision").
The plaintiff seeks relief from the whole of the Medical Assessor's decision, the combined certificate and the proper officer's decision.

The relevant statutory framework

I shall briefly set out the relevant statutory framework of the provisions of the Motor Accidents Compensation Act 1999 (NSW) at the time of the decisions under review.
Part 3.4 of the MAC Act provides for the medical assessment of claimants injured in a motor vehicle accident, and Part 5.3 provides for damages for economic loss. Sections 57 to 58, 60, 61, 63, 131 and 133 are relevant here. They read: "Part 3.4 Medical assessment 57 Definitions In this Part: medical assessment matters means any of the matters referred to in section 58. medical assessor means a person appointed under this Part to make an assessment under this Part. medical assessors review panel means a panel of medical assessors convened under this Part to review an assessment under this Part. medical dispute means a disagreement or issue to which this Part applies. 57A Motor Accidents Medical Assessment Service (1) The Authority is to establish in association with its operations a unit, to be known as the Motor Accidents Medical Assessment Service. (2) The Service is to consist of medical assessors and such members of staff of the Authority as the Authority determines. 58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters): (a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b) whether any such treatment relates to the injury caused by the motor accident, … (d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. … (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. … 60 Medical assessment procedures (1) A medical dispute may be referred to the Authority for assessment under this Part by either party to the dispute or by a court or claims assessor. (2) The Authority is to arrange for the dispute to be referred to one or more medical assessors. … 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. … (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. … (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the President to refer a medical assessment under this Part by a single medical assessor to a review panel for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. (2A) If a medical assessment under this Part (a combined certificate assessment) is based on the assessments of 2 or more single medical assessors (resulting in a combined certificate as to the total degree of permanent impairment), the combined certificate assessment cannot be the subject of review under this section except by way of the review of any of the assessments of the single medical assessors on which the combined certificate assessment is based. (2B) The President is to arrange for any such application to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. … Part 5.3 Damages for non-economic loss 131 Impairment thresholds for award of damages for non-economic loss No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. … 133 Method of assessing degree of impairment (1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part. (2) The assessment of the degree of permanent impairment is to be made in accordance with: (a) Motor Accidents Medical Guidelines issued for that purpose, or (b) if there are no such guidelines in force--the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition. (3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury."

The relevant Guidelines

The SIRA Motor Accident Permanent Impairment Guidelines ("the Permanent Impairment Guidelines"), as at 1 June 2018, made pursuant to s 44(1)(d) of the MAC Act, apply to the assessment of permanent impairment disputes by virtue of ss 133 and 106(1) of the MAC Act. The Court of Appeal has held that a failure to comply with these guidelines may constitute a constructive failure to perform a statutory duty: see Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356 at [9], [16-22], [44], [49], [51], [56], [108].
The SIRA Medical Assessment Guidelines ("the Medical Assessment Guidelines"), as at 1 October 2008, made pursuant to ss 44(1)(d) and 65(1) of the Act, apply to medical assessments conducted pursuant to the MAC Act.
Clauses 1.5, 1.6 and 1.7 of the Permanent Impairment Guidelines refer to causation. They read: "Causation of injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 1.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."
The subject of this judicial review is the Medical Assessor's decision on causation in relation to the plaintiff's left ankle injury. The plaintiff submitted that there are a number of jurisdictional errors and/or errors on the face of the record that occurred in the making of the decisions of the Medical Assessor and the proper officer. I shall start with the Medical Assessor's decision and then proceed to the proper officer's decision, if necessary.
The first ground of judicial review is that the Medical Assessor failed to provide proper and lawful reasons for her conclusions as to causation in relation to the plaintiff's left ankle. In particular, the Medical Assessor failed to explain why the existence of previous fractures in the feet, and the fact that the plaintiff had competed in multiple events prior to the accident, meant that it was "only a matter of time" before the plaintiff would have developed a fracture of the ankle, even if the accident had not occurred (the failure to provide proper reasons).
The second ground of judicial review is that there was no evidence of a pre-existing injury or pre-existing problems in the left ankle and there is no evidence that any such injury was impending or would have occurred without the intervening accident. The assessor erred in law in finding that an injury would have occurred even if the accident had not occurred, when there was no evidence to support this finding (no evidence).

The Medical Assessor's decision dated 16 December 2019

The Medical Assessor (at p 2) of her decision identified that the injury to be assessed was: "Left ankle-peroneal retinaculum detachment from lateral border of fibula-avulsed fracture fragment-split tear of the deep surface of peroneus brevis tendon-musculoligamentous sprain ligaments and tendons."
The Medical Assessor (at p 3) noted that the plaintiff had a history of past stress fractures in her feet. However, there was no history referred to of any prior injury to the plaintiff's left ankle (My emphasis).
Prior to the accident, Ms Brammer did not suffer from left ankle impairment. There is evidence of stress fractures in her feet in 1996/97 (16 years before the accident) and podiatry consultations (not related to her left ankle) in 2003 and 2005 (9 and 7 years before the accident). There is no evidence of left ankle problems pre-dating the accident.
Under the heading "Pre-Accident Medical history and personal details", the Medical Assessor recorded: "… She reported having stress fractures in her feet in 1996/1997. She indicated that she did not participate in sporting competitions overseas and indicated that the stress fractures developed from her tourist activities and when she got back to Australia, x-rays showed stress fractures. She said the fractures healed and she has had x-rays and there has been no residual change because of those stress fractures. In relation to participating in triathlons in the April/May period of 2012, she indicated that at the end of April she was in a triathlon - 1km swimming then 20km bike riding and then 8km running; then on 13 May she went on the Mother's Day Classic Fun Run of 8km and then on 20 May she went on a student running club event at Blacktown of 4km. She reported having no pain on those runs."
Under the heading "History of the Motor Accident", the Medical Assessor stated: "On 26 May 2012, Ms Brammer described being the driver, wearing a seatbelt, and unaccompanied. Her vehicle was stationary behind a line of traffic which was waiting for the car ahead to make a right hand turn, when her car was hit from behind, a rear-end collision. Her car was pushed into the car in front and she indicated that her front number plate was squashed and she believes her car went up in the air. No airbags went off because she had no airbags fitted to her car. She can recall her body going forward and then back and her head hitting the headrest and she said she blacked out for a second. She believes her left foot was on the footpad and the impact jarred the left ankle. She said she was shocked when she realised she had been in a car accident. … She indicated that the people came to see her in the car and she was OK. She said she was able to get out of the car and walk to the side of the road and sit down. She said she was shocked but she was able to call the police. She cannot remember if the police officer asked how she was and she does not remember what she said. She can remember the police officer saying that they were not called to the scene of the accident unless the airbags went off. She recalled having pain in her neck and jaw and cannot recall whether she said she had pain anywhere else in her body or not, at that time. On specific questioning, she said she walked around and sat on a wall, putting weight on the left leg/left foot and then a friend came and picked her up and she walked at that time. She could not recall whether she had pain or not. … She said that she was taken by her friend to her usual doctor, Dr Humphrey. At the time she can recall having pain in her neck and also in her jaw. I asked her several questions to encourage her memory recall but she had difficulty with recall and said she was in shock. …"
Under the heading "History of Symptoms and Treatment Following the Motor Accident", the Medical Assessor noted that Ms Brammer stated that she cannot recall having pain in the left ankle on weight bearing and is unsure if she had any pain in the left ankle or not.
The Medical Assessor also recorded that she: "brought it to Ms Brammer's attention that the consultation with Dr Wanigaratne was on 4 June 2012 and about a week after this accident. Dr Wanigaratne recorded-Pain in left lateral malleolus/1/12 [in other words one month] and increase with walking. Diagnostic imaging request x-ray of left ankle. There was reference to chronic sinusitis but to no other conditions or the accident. Her next appointment with Dr Wanigaratne was on 12 June 2012 - Travel Bali and x-ray normal, pain continued, ligament strain. … On 20 November 2012, Dr Wanigaratne reported the car accident 26/05/12, her car hit by rear car with high speed while stationary, says her ankle injury caused by car accident, left ankle pain. Had MRI. …
The Medical Assesor continued: The plaintiff indicated that she went to India on a trip for about two to three weeks. On her return she continued to have pain in the left ankle. She initially attended a podiatrist, Dr Mair, and then another podiatrist, Dr Trent Saikavich. I note the report of Dr Trent Saikavich, Sports Podiatrist, indicating that - As part of the treating team, together with Dr Lam and Dr Cunningham, have been asked to provide my opinion in relation to the cause of Jennifer's left ankle injury. May I refer to Dr Lam's surgical report that states that Jennifer sustained an avulsion fracture of her fibula, an incomplete split 2cm long tear of the peroneus brevis tendon, as well as detached peroneal retinaculum from the fibula. Dr Saikavich does not give a detailed history of events in or about the car accident or explain the mechanism of injury for such a condition to develop. … On about 14 March 2013, Dr Lam performed surgery on her left ankle …"
The Medical Assessor conducted a medical examination of Ms Brammer's left ankle and found inconsistencies in her ranges of left ankle movement. These inconsistencies were also brought to Ms Brammer's attention by the medical assessor between the time when she was formally examined and when she was standing and indicating the ranges in her ankle movement. Ms Brammer explained that there was pain in her left ankle and that she had difficulty remembering and difficulty with recall.
Under the heading "Conclusion - Diagnosis and Causation" Medical Assessor stated (at p 11-12): "Ms Brammer is now a 44 year old woman who was the driver in a rear-end then front-end motor vehicle accident collision on 26 May 2012 to which no police or ambulance attended the scene of the a accident and she was able to walk and to attend a doctor after the accident without reporting ankle pain to the doctor. In relation to causation of her left ankle injury being related to this motor vehicle accident, I refer to paragraph 1.5, 1.6 and 1.7, of the SIRA Guidelines, pages 6-7. I note the motor accident does not have to be a sole cause, as long as it is a contributing cause which is more than negligible. For this accident, no police attended the scene of the accident. No ambulance was called to the scene of the accident. I have appreciated her report as to why the police did not attend the scene of the accident. Also, I note that there were no other significant injuries, i.e. injuries of a violent/near violent nature requiring ambulance evacuation and hospitalisation to distract from the ankle fracture and ligament and tendon injury. Furthermore, had the nature of the injury caused by the accident been an avulsion fracture of the fibula/ankle and the ligament and tendon damage, I consider that she would have had significant pain getting out of the car and standing on her left foot and then walking. There was no evidence from her account or in the documentation that she was suffering left ankle pain at the time. Also I note that it was a "couple of days" after the accident when she noticed lateral ankle pain when walking, and she later attended a doctor. Moreover, I note that she was a regular attender at medical practitioners over the years and did not avoid seeing doctors for her ailments. Furthermore, she raised with of Dr Kevin Bell on 5 October 2012, some 4 months after the accident that she had had gradually increasing pain over a period of a few months, particularly when walking. There was no mention of any accident until she returned for review on 23 November 2012 when she asked me in passing at the end of the consultation if her pain could have been linked to a car accident she had a week or so prior to her first noticing any pain. Also as per paragraph 1.5,1.6 and 1.7, of the SIRA Guidelines, pages 6-7. considers the question "Would this injury (or impairment) have occurred if not for the accident?" may be useful in some cases. I note that she had stress fractures in her feet in the past from walking as a tourist and furthermore, I note the multiple events she competed in within a short period of time prior to this motor vehicle accident, and I consider that it was only a matter of time before the pathology described above, developed or occurred, whether she had had the accident or not. Based on my enquires in relation to the accident and subsequent chronology and the documentation outlined above, I am led to conclude that the injury to her left ankle was not caused by this accident because the accident was not a more than a negligible contributing cause of her condition." (the impugned paragraphs)
In the summary of injuries listed by the parties and not caused by the accident the following injuries were not caused by the motor accident: • Left ankle-peroneal retinaculum detachment from lateral border of fibula-avulsed fracture fragment-split tear of the deep surface of peroneus brevis tendon-musculoligamentous sprain ligaments and tendons

Judicial review ground 1 - Adequacy of reasons

The Medical Assessor is obliged to set out lawful reasons for the determination pursuant to section 61(9) of the Act and clause 13.2, and 16.24 of the Motor Accident Guidelines.
In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 ("Wingfoot"), the High Court determined in a similar statutory regime concerning a medical panel of assessors in a Victorian workers compensation context, in relation to the duty to give reasons (at [55]) that: "The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, the failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
Wingfoot has been applied in New South Wales relation to medical assessors under the New South Wales scheme in the MAC Act: see Frost v Kourouche (2014) 86 NSWLR 214 at [2] and [40].

The plaintiff's submissions

The plaintiff submitted that the Medical Assessor in making her decision, was bound to set out her actual path of reasoning and to do so in terms sufficiently clear so as to enable one to determine whether or not she fell into legal error pursuant to s 61(9) of the MAC Act. The Medical Assessor failed to do this with respect to her findings of causation of the left ankle injury.
The Medical Assessor had concluded that the injuries were, effectively, inevitable, and this was a material and determinative factor in the decision regarding the issue of causation of the left ankle injury, even if the Medical Assessor had also had regard to some other factors leading up to her determination.
It may well be that the Medical Assessor could have determined that the left ankle injury was unrelated to the accident, due to the delayed onset or delayed reporting (although the plaintiff does not concede that). However, ultimately, the reasons given for the Medical Assessor's decision strayed from that consideration and reveal that the other considerations (previous stress fractures, prior sporting events) were significant determinative factors.
Neither of those two factors explain how or why the Medical Assessor has concluded that an injury to the left ankle (a different body part) was inevitable and that the left ankle injury was not causally related to the accident.
The Medical Assessor did not identify or explain the connection between stress fractures to both feet and a subsequently inevitable left ankle injury. Nor did she identify the probability of ankle injury as it relates to the activities of the plaintiff, when it would have eventuated or why those particular activities would have resulted in the ankle injury.
The connection between the factors identified by the Medical Assessor, and the causation of the left ankle injury, are wholly unexplained. The duty to give lawful reasons is not fulfilled: see Wingfoot. These are not gaps that can be filled by necessary inference.
In Sadsad v NRMA Insurance Ltd and Others (2014) 67 MVR 601 ("Sadsad"), Hamill J said at [47]: "It is one thing to give a "beneficial construction" to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law (in this case cl 2.5)."
Also in Allianz Australia Insurance Limited v Francica [2012] NSWSC 1577 ("Francica"), Hall J stated, at [17]- [18]: "17 … The decision of the Court of Appeal in Campbelltown City Council v Vegan (2006) NSWCA 284 is the leading authority in relation to the principles that apply to a case such as the present. His Honour, Basten JA, with whom the other members of court agreed, at paragraph 121 stated that: "Where it is necessary for the panel to make findings of fact in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment it may be expected that the findings and material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the panel to give some explanation for its preference of one conclusion over another. That aspect may have particular significance in circumstances where the medical members of the panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners as set out in reports provided to the panel." 18 In determining the adequacy of reasons, which is the focus in Vegan, it is important to determine what was the issue; in other words, what was the precise battle ground between the parties before the determining tribunal. In the decision of Alchin v Daley (2009) NSWCA 418, Sackville AJA, with whom McColl JA and Young JA agreed, stated: "The extent and content of the reasons will depend on the particular case and the issues under consideration but it is essential to expose the reasoning on the point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute."
On any reading of the Medical Assessor's decision, the left ankle causation was a key battleground between the parties. There was more than one conclusion open to the Medical Assessor. In circumstances where there was no pre-accident injury or impairment in the left ankle, one available conclusion was that the ankle impairment was caused by the accident (as had been submitted by the plaintiff below). The Medical Assessor has not lawfully explained why she preferred the conclusion that it was not causally related to the accident. Indeed, the purported "reasons" do not provide any actual support for the conclusion she did reach, let alone explain why it was her preference over the other available conclusion.
The stress fractures to the foot were expressly distinguished from any subsequent injury to the ankle. There was no explanation from the assessor as to how a historical stress fracture to the foot amounted to evidence that an ankle injury was inevitable.
This case embodies the circumstance envisaged by the Court of Appeal, in Francica and Vegan, where there was a precise battleground between the parties, more than one conclusion was open to be made. Having regard to the precise battleground between the parties, the assessor was required to give reasons for the preference of one conclusion over another.
In IAG Limited v Sleiman [2017] NSWSC 1346 ("Sleiman"), Fagan J (at [29]) held that an unexplained leap in the reasoning process, and internally inconsistent reasoning resulted in the decision lacking evident and intelligible justification and therefore the decision should be set aside for legal unreasonableness. Even on the most beneficial of constructions, there is a leap in the path of reasoning here, like that observed in Sleiman and Zurich Australia Insurance Limited v Drca and Ors (2018) 87 MVR 100 at [65].
In oral submissions, counsel for the plaintiff submitted that the insurer's argument is essentially akin to a materiality argument or a futility argument in that it is saying, look, this part of the reasons that the plaintiff says was inadequately reasoned and/or based on no evidence (the second ground of judicial review , it did not make a difference to the decision because the assessor had already determined that the left ankle injury could not have been caused by the accident.
The first point is that having regard to the decision that the Medical Assessor had never formed the conclusion that it could not be related to the accident and in fact didn't form any conclusion about causation until she embarked on the unlawful reasons section of the decision where she referred to this alleged inevitability.
Counsel for the plaintiff referred to Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALRJ 780 ("Hossain"), where the High Court as [30] stated: "The threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made. If it was so insignificant that the failure to take it into account could not have materially affected the decision."
The second point is, did the impugned passage afflict the consideration of causation in any way? Having regard to Robson v QBE Insurance (Australia) Limited [2020] NSWSC 1558 ("Robson") at [93], it only had to be a factor, a factor in a multifactorial analysis, and if you answer "yes" to both of those questions, then the decision in relation to causation is afflicted by legal error and the decision should be set aside. And in this case that ought to be the decision reached because it plainly forms part of the reasons, it is a direct answer to the question on causation that the assessor poses with specific reference to clause 1.7, which is the test of causation in the guidelines, and that the Medical Assessor intends to explain or bolster her findings on causation by reference to that impugned paragraph.
Can the Court be satisfied that the impugned part of the reasons were not at least a factor in this decision making process? The Court should not feel comfortable in making that decision. It is certainly possible being the language of the High Court in Hossain that this was at least a factor and the relief sought by the plaintiff should be granted.

The insurer's submissions

The insurer submitted that the errors alleged by the plaintiff are based on the plaintiff's misunderstanding of the Medical Assessor's reasons.
The plaintiff's argument is that the primary basis for (or "determinative factor'' in) Medical Assessor's decision, is her statement that having regard to the fact that the plaintiff engaged in strenuous travel and athletic activities, and had already suffered stress fractures in both feet, "it was only a matter of time before the pathology (in the left ankle) developed or occurred, whether she had had the accident or not."
Importantly, this statement by the Medical Assessor, did not actually deal with the cause of the plaintiff's left ankle pathology at all. Read in context, all the Medical Assessor says is that the plaintiff would probably have had the same pathology sooner or later that she has now, regardless of the accident. The Medical Assessor did not state that the plaintiff's travel and athletic activities caused the left ankle pathology she has now, ie. at the time of the Medical Assessor's assessment, although they may have done so.
The plaintiff reads the next paragraph of the Medical Assessor's reasons, as basing her conclusion that no injury to the left ankle was caused by the accident on 26 May 2012 on the stress fractures and travel and athletic activities to which Dr Harvey-Sutton referred in the previous paragraph. However, what the Medical Assessor stated was: "Based on my enquiries in relation to the accident and subsequent chronology and the documentation outlined above, I am led to conclude that the injury to her left ankle was not caused by this accident ..."
This final paragraph in which she states her conclusion provides three bases for her finding that no injury to the left ankle was caused by the accident. They are: 1. Dr Harvey-Sutton's enquiries in relation to the accident, ie. the mechanism of the accident; 2. The subsequent chronology, ie. the plaintiff did not seek medical attention for left ankle pain until 4 June 2012, nine days after the accident; 3. The documents provided by the parties to the Medical Assessor's for assessment of the impairment dispute.
The Medical Assessor's reasons set out a number of facts, and matters of clinical judgment, that led to her conclusion on causation of the plaintiff's ankle pathology, and which excluded the motor accident as a cause.
One basis for this conclusion is that in the Medical Assessor's opinion, the plaintiff would not have been able to get out of her car or walk or sit on a wall with weight on her left foot if she had suffered a significant injury to her left ankle.
In the Medical Assessor's opinion, neither the mechanism of the accident, nor a "jarring" of the left foot on the footpad, were capable of causing the condition for which Dr Lam performed surgery; and there would not have been a delay in the onset of intense pain in the left ankle if that condition was caused by the motor accident. Nor would the plaintiff have omitted to mention left ankle pain to Dr Humphrey on the day of the accident.
The Medical Assessor further noted that on 5 October 2012, the plaintiff told Dr Bell (four months after the accident) that the pain in her left ankle and foot had gradually increased over a period of months after the accident, particularly when walking. In the Medical Assessor's opinion that history, too, was not consistent with the accident having caused the condition for which Dr Lam performed surgery.
It was the matters set out in the last four paragraphs of her decision that led the Medical Assessor to conclude that the plaintiff did not injure her left ankle in the accident on 26 May 2012.
Having carefully explained why the mechanism of the accident, and the plaintiff's actions subsequent to the accident, negated any causal link between the accident and the pathology later identified in the plaintiff's left ankle, the Medical Assessor chose to provide an alternative explanation for that pathology. It was certainly open to the Medical Assessor to do so, although this is not required as part of her statutory task.
Therefore, the Medical Assessor provided clear and cogent reasons for her opinion that the accident did not cause any injury to the Plaintiff's left ankle or left foot. That completed the Medical Assessor's statutory task, so far as assessment of the alleged injury to the left ankle was concerned.
The Medical Assessor noted that Dr John Cummine, an orthopaedic specialist, was of the same opinion in his report dated 16 August 2019, having received the same history.
The insurer submitted that it is wrong to assert, as the plaintiff has done, that the Medical Assessor concluded that the pathology in the plaintiff's left ankle was "inevitable" and to "leap" to the conclusion that the motor accident was therefore no part of the cause of that pathology.
To the contrary, the Medical Assessor's process of reasoning was to first consider the accident itself, its aftermath, and the early history of medical treatment, and to conclude that all of these events from the time of the accident were completely inconsistent with the plaintiff having suffered an injury to her left ankle. That was an exercise of the Medical Assessor's clinical judgment.
It was only once the Medical Assessor had determined that the accident could not be responsible for the plaintiff's left ankle pathology, that the Medical Assessor explained that the pathology was probably a consequence of the plaintiff's strenuous travel and athletic activities. Just how strenuous those activities were was confirmed by the fact that the plaintiff had suffered stress fractures in both feet.
When understood in this way, the errors asserted by the plaintiff in the amended summons and in her submissions fall away. There is no error in the reasoning process of the Medical Assessor. The path of reasoning is clearly exposed.
In oral submissions, counsel for the insurer submitted that Dr Harvey‑Sutton's reference to the "test" in the guidelines for causation was unnecessary to her reasons, was not a factor in her reasons and, if it did anything at all, was simply a confirmation of the conclusion that she had already reached. The insurer accepted that the Medical Assessor did not have the evidence to make the statements she did about this injury would have beset the plaintiff at some time in the future in any event. That is probably the Medical Assessor's clinical experience but it is not a medical explanation that follows as night follows day. It was, as I put it earlier, nothing other than her "musing" as to how the plaintiff could have come to this state given the conclusion the Medical Assessor had already reached and expressed.
She had explained in nine consecutive paragraphs what the factors were and they are all unimpeachable because they are expressions of her clinical judgment, clinical opinion, and where she has relied on facts, the facts are accurate.
So her path of reasoning is complete at the end of the paragraph beginning "Furthermore", and she summarises the previous nine paragraphs in the paragraph, "Based on my enquiries" and that is a ten paragraph set which completely and conclusively establishes and justifies and exposes her path of reasoning on the question of causation in a manner that is unimpeachable.

Resolution

I have earlier referred to Wingfoot, Sadsad, Francica and Sleiman as to what constitutes adequate reasons of a Medical Assessor.
I also accept that reasons of administrative decision-makers are not to be considered with "an eye minutely and keenly attuned to error" but are to be read beneficially and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272).
The Medical Assessor set out the correct Guidelines as to causation in relation to the injury to the plaintiff's left ankle. Where there was no pre-accident injury or impairment in the left ankle, one available conclusion was that the ankle impairment was caused by the accident. It is fair to say that there were medico legal reports that both supported the plaintiff's case and the insurer's case on causation. Dr John Cummine in his report dated 18 August 2019 opined that: "I think it highly unlikely that the patient sustained any injury to her left ankle in the index accident. If that had been the case I would have expected when she got out of the vehicle and put weight on the ankle, she would have immediately experienced at least some degree of pain particularly if one is asked to believe that she avulsed a portion of the retinaculum from the fibula, detaching a bony fragment, as reported by Dr Lam."
These findings accord with those of the medical assessor. However, he does not go further and proffer an alternative cause as an explanation for the plaintiff's injury to her left ankle.
Hence, there was more than one conclusion open to the Medical Assessor on the issue of causation. The Medical Assessor agreed that the left ankle causation was the key battleground between the parties.
In reaching her decision the Medical Assessor took into account the accident itself, its aftermath and the early history of medical treatment, and concluded these events from the time of the accident were inconsistent with the plaintiff having suffered an injury to her left ankle. Under the heading "Conclusion - Diagnosis and Causation" the Medical Assessor concluded that based on her enquires in relation to the accident and subsequent chronology and the documentation outlined above, the injury to her left ankle was not caused by this accident because the accident was not a more than a negligible contributing cause of her condition.
In the penultimate paragraph before reaching her ultimate conclusion, the Medical Assessor provided an alternative explanation for the pathology in the plaintiff left ankle when she said "I note that the plaintiff had stress fractures in her feet in the past from walking as a tourist also and the multiple events the plaintiff competed in within a short period of time prior to the motor vehicle accident, and considered that it was only a matter of time before the pathology described above, developed or occurred, whether the plaintiff had had the accident or not" (the alternate cause).
While the insurer submitted that the alternate cause was a "musing" and did not form part of the Medical Assessor's reasoning process in reaching her decision on causation, I cannot be satisfied that the alternate cause was not at least a factor in her decision making process on causation. The Medical Assessor has not provided any cogent explanations as to why she favoured the "alternate cause" over the medical view that the injury to the left ankle was caused by the accident. It is my view that the Medical Assessor failed to provide lawful reasons for her conclusions as to causation in relation to the plaintiff's left ankle.

Judicial review ground 2 - No evidentiary basis for decision

The plaintiff's submissions

The plaintiff submitted that there was no evidentiary basis available to the Medical Assessor to make the conclusion that it was "only a matter of time" before the left ankle injury occurred, even if the accident had not happened.
The plaintiff referred to IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105, where Hall J stated at [15]: "15 The 'no evidence' ground was considered by the Court of Appeal in Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 at [87]- [90] and [1]-[3]. Ward JA stated in that case (at [88]-[90], with Macfarlan and Hoeben JJA agreeing): The test is not as to whether there was any evidence at all. McHugh J, in the majority in Naxakis, said: "...So the question is, as Willes J said in a non-negligence context, [in Ryder v Wombwell] "not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established."
Similarly, in Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517, it was accepted that the question was not whether there was literally no evidence to support the finding of fact but whether there was more than a mere scintilla of evidence favouring such a finding. Kirby J (in dissent) emphasized (at [560]) that: "The "no evidence" ground, as it is currently named, bears little relationship to the concept which it is intended to signify. More properly, it should be called the "no reasonable evidence" ground. That is how I mean the expression to be understood."
His Honour further stated at [16]: "Findings of fact, it was emphasised, must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 44 FLR 41 at 64-68 per Deane J; Minister for Immigration v Eshetu (1999) 197 CLR 611 at [147] per Gummow J."
In Gordian Runoff Limited v Ozurumba [2020] NSWSC 774 ("Ozurumba"), Fagan J stated at [34]: "In the circumstances of this case it was the assessor's legal duty to refer to the evidence from the insurer and to explain why it was not acted upon: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]; Qushair v Raffoul [2009] NSWCA 329 at 52; Alchin v Daley [2009] NSWCA 418 at [35]- [47]. This ground of review is subsidiary, in relation to the assessment of past economic loss, because I have found that there was no evidence to sustain the factual conclusions upon which the assessor made his calculations. Accordingly, no sensible reasons could have been given for those conclusions."
Having regard to the decision of Fagan J in Ozurumba, it may be that the plaintiff's first ground of review becomes subsidiary, on the basis that there was no evidence for the finding for which inadequate reasons have been given. In the present case, as in Ozurumba, there was no evidence to sustain the factual conclusion upon which the Medical Assessor made her determination that "it was only a matter of time" before the left ankle injury occurred.
The only supporting basis for this finding was the plaintiff's pre-accident stress fractures to her feet, and the fact she had competed in multiple events shortly prior to the accident. These do not provide any evidentiary basis for an injury to the ankle being inevitable prior to the motor accident.

The insurer's submissions

For the reasons set out in relation to Ground 1, Ground 2 is misconceived.
The plaintiff asserted that there was no "evidentiary basis" on which the Medical Assessor could conclude that it was "only a matter of time" before the plaintiff developed pathology in her left ankle, even if the accident on 26 May 2012 had not occurred.
The Medical Assessor's statement that in light of the plaintiff's history of strenuous travel and athletic activities, it was only a matter of time before she developed pathology in her ankle(s), had nothing to do with the Medical Assessor's conclusion that the left ankle was not injured in the motor accident on 26 May 2012.
The Medical Assessor may be right or wrong in her opinion that even if the accident had not occurred, the plaintiff's travel and athletic activities would probably have led to the development of ankle pathology. It may be the Medical Assessor's opinion that these activities explain the pathology identified in the plaintiff's left ankle. But for the reasons set out above, that was no part of Medical Assessor's reasons for excluding the accident in May 2012 as a cause of the plaintiff's ankle pathology.
No doubt, the Medical Assessor's belief that the plaintiff's strenuous travel and athletic activities would probably lead to ankle pathology sooner or later, was based on her many years of clinical experience. But given that this was not a factor, much less a "material and determinative" factor, in excluding the motor accident as a cause of the plaintiff's ankle pathology, it simply does not matter whether the Medical Assessor's belief is right or wrong, nor does it matter whether there was any "evidentiary basis" for that belief (or whether an "evidentiary basis" is required for a statement based on a medical assessor's clinical experience).
In oral submissions, the insurer submitted that the penultimate paragraph of the Medical Assessor's reasoning was nothing other than "a musing" as to how the plaintiff could have come to this state given the conclusion she had already reached and expressed (T25.18-20).
The Medical Assessor had explained in nine consecutive paragraphs what the factors were and they are all unimpeachable because they are expressions of her clinical judgment, clinical opinion, and where she has relied on facts, the facts are accurate.

Resolution

While I accept that a Medical Assessor is entitled to reach her own conclusion as to causation, it has to be based upon some medical evidence that was relied upon by the parties. There was no medical evidence relied upon by the parties of a pre-existing injury or pre-existing problems in the plaintiff's left ankle, nor was there evidence that such an injury was impending or would have occurred without the intervening accident. If the Medical Assessor had an alternate cause in mind, she could have sought submissions from the parties. The medical assessor erred in law in finding that an injury would have occurred when there was no evidence to support it. In so doing the Medical Assessor erred in law by reaching her decision based on no evidence. Judicial review grounds 1 and 2 are upheld.
The result is that the decision of the Medical Assessor dated 16 December 2019 is set aside.

The proper officer's decision and combined certificate - 10 August 2020

The combined certificate dated 10 August 2020 and the Proper Officer's decision dated 3 November 2020 were made after the Medical Assessors decision and certificate dated 16 December 2019.
It was also agreed by the parties that if the Medical Assessor's decision was quashed the Proper Officer's decision dismissing the plaintiff's application for review must also be quashed because it relies upon the validity of the Medical Assessor's decision.
The second decision is a combined certificate that is issued because there was more than one assessment. The parties agree that if the Medical Assessor's decision is quashed, the combined certificate would either fall of its own accord or preferably would be quashed as a matter of formality. Hence, I quash the decision of the fourth defendant in her capacity as a Medical Assessor of SIRA dated 10 August 2020.

Costs

Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs on an ordinary basis.

The Court orders: (1) The decision and certificate of the Medical Assessor dated 16 December 2019 is set aside. (2) An order in the nature of certiorari quashing the decision and certificate of the Medical Assessor dated 10 August 2020. (3) An order in the nature of certiorari quashing the decision of the Proper Officer dated 3 November 2020. (4) The decisions of the Medical Assessor dated 16 December 2019, the Medical Assessor dated 10 August 2020 and the Proper Officer dated 3 November 2020 are remitted to the President of the Personal Injury Commission of New South Wales for determination according to law. (5) The first defendant is to pay the plaintiff's costs on an ordinary basis.

Amendments 24 August 2021 - File number amended 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: 24 August 2021

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (22)