Cornwall v Allianz Australia Insurance Limited

Supreme Court of NSW|2019-02-08|Before: Schmidt J

Judgment

On 3 January 2015 Mr Cornwall was involved in two separate rear-end collisions on the M2. Before these collisions Mr Cornwall had suffered back problems, but had been advised not to pursue surgery. Afterwards, he sought further treatment for various injuries with the result, some months later, that he underwent a number of surgeries to his spine.
Mr Cornwall made a claim under the Motor Accident Compensation Act 1999 (NSW), about the injuries he claimed had been caused by the collisions. There was a dispute about whether the collisions had caused or contributed to the impairment of his back. The injuries which, as a result were referred to Assessor Home for assessment were: "1. Cervical spine - soft tissue injury, fracture & sciatica 2. Lumbar spine - soft tissue injury, secondary to right L5/S1 disc protrusion compressing the right S1 nerve root, disc dehydration and sciatica 3. Right leg & foot - paraesthesia, decreased sensation"

The facts

It is common ground that Mr Cornwall was injured on 1 January 2015 in the circumstances described in Assessor Home's certificate, which was not challenged on the review.
That certificate revealed that Mr Cornwall's car was first struck from behind while he was stationary in a line of traffic on the M2. He pulled over, got out of his car, walked to the passenger side and as he was reaching into the car, it was then again struck from behind. The second collision caused Mr Cornwall to strike the inner surface of the door frame and the seat of the car with his chest. He then fell to the ground.
Mr Cornwall recalled then suffering symptoms of both neck and chest pain, but he was able to exchange details with the other driver, drive home and the next day seek treatment from his GP. He also described his existing lower back pain having increased in severity after the accident.
Images were taken of Mr Cornwall's chest and neck, which identified a possible hairline fracture of the transverse process at T1. He was treated with analgesics and anti-inflammatory medication and referred for physiotherapy. Over the following weeks, despite ongoing treatment, his lower back pain increased, but his neck and chest pain slowly eased.
On 6 February 2015 Mr Cornwall woke with severe pain in his right leg and had difficulty weight bearing and mobilising. The physio sent him back to his GP who referred him for further imaging and examination by a neurosurgeon, Dr Parkinson, who diagnosed right S1 radiculopathy.
Mr Cornwall underwent decompression surgery with laminectomy and discectomy in April 2015. His symptoms persisted and he underwent nerve root injections and then a further discectomy in June 2015, which also did not improve his symptoms. He then underwent a spinal fusion in July 2015, which was followed by rehabilitation in hospital in August.
Subsequently Mr Cornwall required ongoing pain management treatment and a rhizotomy, before a temporary spinal stimulator was implanted in May 2016. It later had to be repositioned, but he continued still to suffer ongoing pain.
Assessor Home concluded: "There is a past history of chronic lower back pain dating back to 2011. The claimant confirms that he suffered lower back pain requiring treatment with analgesia in the period leading up to the motor vehicle accident. He reports an increase in back pain symptoms progressively from the accident and confirms that this was reported to his general practitioner and physiotherapist. His physiotherapist records an increase in lower bad pain symptoms within four days of the accident and treatment was administered for this increase in lower back pain. There is also documentation of increased lower back pain by his general practitioner several weeks after the accident. There was then the development of an acute right-sided L5/S1 disc protrusion causing S1 nerve root compression representing an extension of pre-accident on imaging at L5/S1 with larger disc protrusion seen on the post accident imaging. Therefore, it is probable that Mr Cornwall experienced aggravation of L5/S1 discopathy from the motor vehicle accident, noting the mechanisms of the accident which involved sufficient farce to cause injury to the lumbar spine, particularly in the second phase of the accident when his vehicle was struck whilst accessing the passenger side of his vehicle. The subsequent extension of the disc protrusion on or about 6 February 2015 represents an extension of the aggravation of the underlying pathology and is also causally related the motor vehicle accident. There has been a consequential requirement for three surgical operations, culminating in fusion at the L5/S1 level. There has been full recovery from his early complaints of neck, chest and right shoulder pain. The undisplaced hairline fracture of the T1 transverse process does not attract an additional impairment rating."

The applicable principles

There is no issue between the parties about the nature of the obligations imposed on the Review Panel by the Motor Accident Compensation Act, the Guidelines for the Assessment of Permanent Impairment of a Person Injured as a Result of a Motor Vehicle Accident and the Medical Assessment Guidelines: ss 44(1) and 65(1) the Motor Accident Compensation Act. The Guidelines have the status of delegated legislation: Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287; (2010) 57 MVR 9 at [31].
The obligations imposed on the Review Panel are of the kind discussed in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43at [47]-[48]. Thus the Review Panel had to form and give its own opinion on the medical dispute referred to it. In undertaking that function, it had to consider what both parties advanced, in light of the information provided to it. The Panel was not called on to choose between the competing arguments, or to opine on the correctness of other opinions about the medical dispute, but had to form its own opinion, its members applying their own medical experience and expertise to what was in issue.
In forming its opinions the Review Panel did, however, have to take into account the opinions of other medical practitioners, including those expressed in earlier certificates by treating doctors and those who had expressed medico-legal opinions. Contemporaneous investigations may not be decisive, but they can provide important countervailing material, which the Review Panel also had to take into account in arriving at its conclusion. Account also had to be taken of earlier diagnostic findings and other available notes and reports, including those from allied health professionals.
A motor accident does not have to be the sole cause of an impairment. As long as it is more than a negligible contributing cause, it is compensable: cl 1.8-1.9 of the Permanent Guidelines and Owen v Motor Accidents Authority of NSW [2012] NSWSC 650; (2010) 61 MVR 245 at [50].
Clause 1.9 of the Permanent Impairment Guidelines provides: "1.9 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."
This was relevant in Mr Cornwall's case, because he had a prior history of back pain from 2011, for which he had received ongoing treatment leading up to the accident and had reported increased pain to his GP and physiotherapist after the accident, for which he also received treatment.
Clause 1.35 of the Permanent Impairment Guidelines thus required the Review Panel to assess Mr Cornwall's pre-existing back condition, that being relevant to its assessment of whether his back impairment was caused or contributed to by the two collisions.
The conclusions which the Review Panel came to also had to be explained in its certificate. While the reasons given did not have to be elaborate, they had to disclose the actual path of reasoning by which the Panel arrived at the opinions it formed, on each of the issues which it had to resolve. If there was a medical controversy over a particular issue, more expansive explanations needed to be given: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [122].
On an application such as this, however, the Panel's reasons are not to be scrutinised over zealously: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6.
But given the statutory scheme under which the Panel's decision was made, any failure to take into account a relevant consideration involves jurisdictional error: Minister for Aboriginal Affairs v Peko-Walsend (1986) 162 CLR 24 at 39-40; [1986] HCA 40. Such an error involves an error of law, which results in the decision maker exceeding the powers given by the statute: Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 323 at [82].

Did the Review Panel err in its assessment of the accident circumstances?

There are, it must be accepted, difficulties in the reasons the Review Panel gave in its certificate for the conclusions which it finally reached. They appear, in part, to be contradictory, as I will explain.
Further, even if the certificate is not read "over zealously" the reasons given reveal that the Review Panel misunderstood what happened to Mr Cornwall in the two collisions, despite what was explained in Assessor Home's certificate, which the Panel undoubtedly considered. That may explain why the Panel called for information about the damage caused to Mr Cornwall's car and the views it expressed about that damage, which seem to have little to do with its statutory task.
Under the heading "Panel Deliberations", the Review Panel noted that the accident occurred: "…when the claimant's car was stationary and while he was at the controls of the car. The car was struck a second time, slightly confusing the description as to how this happened. However, the claimant was able to exchange details with the other driver and he drove himself home in the car and attended his general practitioner the following day. Mr Cornwall recalls complaining primarily of neck and chest pain when he saw his general practitioner. Back pain increased in severity over the following few weeks and he was referred to see neurosurgeon, Dr Jonathon Parkinson, who diagnosed right S1 radiculopathy." (emphasis added)
It was the insurer's case that the Panel's use of the word "confusing", had to be read as meaning "complicating". That was because there was no confusion at all about how the two collisions had occurred.
Even reading the sentence "The car was struck a second time, slightly complicating the description as to how this happened", however, does not explain why the Review Panel did not either here, or at any other point of its reasons, refer to the undisputed facts about the second collision. Namely, that it caused Mr Cornwall to strike his chest on the doorframe and seat as he was reaching into the car from the passenger side, that causing him then to fall to the ground.
Logically, as the insurer acknowledged, that must have resulted in the application of different forces to Mr Cornwall's body than those applied in the first collision. Then the car was stationary and he was sitting in the driver's seat, restrained by a seatbelt. But the Panel's reasons do not reveal that the it either appreciated, or considered this.
To the contrary, the rest of the Review Panel's reasons are consistent with it having given no consideration to: 1. the effect of those different forces on Mr Cornwall's body; 2. the consequences of his resulting fall to the ground on his already impaired back; or 3. whether they contributed to the impairment of his spine or the neurological abnormalities which the Panel finally found that Mr Cornwall had suffered.
The Panel noted under the heading "Injuries", that the injuries which Mr Cornwall had listed in his application form expressed, it said, "in usual medical terminology" were:

Cervical spine - soft tissue injury
Lumbar spine - soft tissue injury
Right leg and foot - neurological abnormalities

It is relevant that neither here, nor elsewhere in its reasons did the Panel make any reference to the T1 fracture identified on imaging after the accident. That was not only referred to in both the GP's and physio's notes, but Assessor Home had dealt with it in his certificate, because it was part of the injuries referred to him for assessment.
This fracture is thus another matter which the Panel does not appear to have taken into account, as it should have, in arriving at its conclusions.
Under the heading "Causation" the Panel observed: "The day following the MVA, GP records clearly indicate injury to the back and neck and it is considered there is evidence of pain passing from the back into the right lower extremity. The Panel is in agreement with the Assessor in accepting causation of these injures related to the subject motor vehicle accident."
Having so accepted that the collision caused injury to Mr Cornwall's neck and back, as well as pain travelling to his right lower extremity, the Panel then turned to explain the conclusions it had reached about the question of "permanent impairment".
It began with Mr Cornwall's cervical spine injury, which it also agreed with Assessor Home had resolved and had caused him no permanent impairment, observing: "The claimant no longer notes cervical spine symptoms and examination of the cervical spine showed no evidence of dysmetria, muscle spasm or guarding, or neurological abnormalities for which reason the Assessor considered the injuries had resolved and the cervical spine was not assessable for permanent impairment. In this regard, the Panel is in agreement with the Assessor that this injury has resolved."
The Panel then turned to Mr Cornwall's lumbar spine, but failed to deal at all with his right leg and foot.
As to his lumbar spine, what the Panel noted included: 1. Mr Cornwall's history of back problems; 2. Dr Pope's 2012 opinion, that surgery to Mr Cornwall's spine should not then be pursued because of his age; 3. that 2011 and 2012 medical imaging showed that Mr Cornwall had discogenic disease at L4/5 and L5/S1; 4. that a GP entry four days before the accident showed that Mr Cornwall had indicated suffering over a year of back pain; and 5. that the first procedure on his spine was carried out 4 months after the accident which occurred in January and the fusion 3 months later, in August.
Without making any reference to the treatment which Mr Cornwall's GP prescribed after the accident, or its results, which Assessor Home had discussed extensively in his certificate, the Panel then said: "The Panel has given carefully [sic] consideration to all this documentary evidence of a significant back disorder prior to the subject MVA. The Panel has also carefully considered the evidence of a minimal impact to the rear of the claimant's vehicle following the subject MVA."
This latter observation, the Panel having made no reference at all to the second collision causing Mr Cornwall to strike his chest on the car and to fall to the ground, supports the conclusion that the Panel did not appreciate either that a second collision had occurred, or that it had caused Mr Cornwall finally to fall to the ground. The Panel's reasons continued: "As indicated above, a good quality colour photograph of the rear of the claimant's car does not show any actual deformity or marking and a body repair tax invoice shows that the work done on the car was for a relatively low amount of money. Overall, the Panel does not accept evidence to indicate the contribution of the soft tissue injury to the low back consequential upon the subject MVA was more than a negligible contributor to the underlying well-documented back disorder, which has led to the need for an eventual spinal fusion."

Did the Review Panel err in its reasoning process or in its approach to causation?

It is convenient to deal with these issues together
The insurer's case was that, fairly read, there was no ambiguity in the Review Panel's approach to what was in issue and no error in its approach to causation or in its reasoning or conclusions. But having found under the heading "Panel Deliberations" that the accident had caused soft tissue injury to Mr Cornwall's back, neck and pain in his lower right extremity, the Review Panel came to seemingly contrary views under the heading "Panel decision". There it said that: "The Review Panel found that the accident WAS a cause of the following claimed injuries: • Cervical spine - soft tissue injury • Lumbar spine - soft tissue injury The Review Panel found that the accident was NOT a cause of the following claimed injuries: • Lumbar spine - soft tissue injury, secondary to right L5/S1 disc protrusion compressing the right SI nerve root, disc dehydration and sciatica • Right leg and foot - paraesthesia and decreased sensation"
The Review Panel gave no explanation for how it came to these conclusions, particularly having earlier observed that the accident had caused pain in Mr Cornwall's right lower extremity. It also then said: "The Review Panel considered that the following injury gives rise to a permanent impairment: • Cervical spine - soft tissue injury"
This contradicted its earlier conclusion that the injury to Mr Cornwall's cervical spine caused by the accident had resolved.
The insurer's contention was that the basis of the Review Panel's decision was the pattern of Mr Cornwall's symptoms before and after the accident, which it found were consistent only with soft tissue injury having been caused by the collision. But there was no such explanation given in the Panel's certificate.
The insurer also contended that it was open to the Panel to conclude that the accident had produced only a short term increase in Mr Cornwall's lower back symptoms, consistent with a diagnosis of soft tissue injury which resolved before the surgical procedures had taken place. But again, that was not an explanation given by the Panel.
Even though the Panel did not deal at all with the evidence of the hairline T1 fracture, under the heading "Panel Deliberations" it had, however, agreed with Assessor Home that the collision had caused injury to Mr Cornwall's neck and back and had caused pain in his lower right extremity. The Review Panel there outlined what the records revealed as to the state of Mr Cornwall's back in 2011-2013, all of which were not before Assessor Home. It there stated that it had given careful consideration to the GP's records from 2013 to 2017, noting that 4 days before the accident Mr Cornwall had indicated that he had suffered a year of back pain.
The Review Panel also explained the outcome of its consideration of the photographs of the damage to the rear of the vehicle, which it found to be "instructive", in resolving what lay in issue between the parties. But they could shed little light on the forces applied to Mr Cornwall's body as the result of the second impact, which caused him to strike his chest and fall to the ground, something which the Panel did not consider.
Nor could those photographs shed real light on the nature of the injuries which the Panel concluded the collision did cause, injured as Mr Cornwall's back already was. The investigations and treatment he pursued after the accident with the physio, on his GP's advice, no doubt shed light on the issue of whether the collisions caused or contributed to the permanent impairment of Mr Cornwall's lumbar spine, but the Panel made no reference to that material in its certificate.
By way of contrast, in his certificate Assessor Home explained the investigations which had been pursued after the accident; what they had revealed; and what treatment Mr Cornwall had received as a result. On that basis Assessor Home concluded that the accident was causally related to the impairment which led to his repeated spinal surgery.
While under the heading Panel Deliberations, the Review Panel agreed with Assessor Home that the pain to Mr Cornwall's right lower extremity had been caused by the collisions, when it turned to its "Panel Decision", it finally concluded that the paraesthesia and decreased sensation in his right leg and foot were not caused by the collisions. This rested on its view that "[i]t is not medically feasible or explicable for a minor soft tissue injury of the lumbar spine without evidence of fracture or other significant injury to cause ongoing symptoms and the requirement for surgery".
But as well as not taking any account of the mechanics or results of the second collision, when Mr Cornwall finally fell to the ground, or the evidence of a hairline fracture to T1, the Review Panel also made no reference to the investigations and treatments which Mr Cornwall pursued after the collisions, which had led Assessor Home to conclude that the collisions had contributed to Mr Cornwall's permanent whole person impairment, which he assessed at 25%.
In coming to its own opinions, the Panel had to consider all of these matters, as well as Assessor Home's opinions and the reasons on which they were based It also had to disclose the actual path of reasoning by which it arrived at its finally different conclusion.
This, I am satisfied, it failed to do.

Did the Review Panel err in its approach to impairment?

The Panel concluded that while Mr Cornwall had whole person impairment: The degree of whole person permanent impairment of the injuries caused by the accident was calculated as follows: AMA Guides/ Guidelines References %WPIdue to Body Part or System (chapter/page/table) Permanent (YES/NO) Current %WPI %WPI* from preexisting OR subsequent causes motor accident 1 Cervical spine AMA4, Chapter 3.3, Table 73, Page 110 Yes 0% Not applicable 0%

*%WPI = percentage whole person impairment

This is impossible to understand, given what the Panel had earlier explained.
Under the heading "Panel Deliberations", having noted that Mr Cornwall suffered no ongoing symptoms of neck pain, the Panel had concluded that the collisions caused Mr Cornwall soft tissue injury to his neck and back and pain in his right lower extremity, but: 1. the cervical spine injury had resolved and was not assessable for permanent impairment; and 2. the lumbar spine injury had also resolved and was not more than a negligible contributor to his current lumbar spine impairment, which was related to the progression of his pre-existing spinal discogenic disease and subsequent surgery.
Consistently with these conclusions, under the heading "Panel decision" the Panel found that the collisions did cause both cervical and lumbar spine soft tissue injury. It also concluded, however, that they did not cause the soft tissue injury to Mr Cornwall's lumbar spine secondary to the right L5/S1 disc protrusion compressing the right S1 nerve root, with disc dehydration and sciatica, or the paraesthesia and decreased sensation in right leg and foot. The latter was seemingly inconsistent with its earlier conclusion that the collisions had caused pain in his right lower extremity, but the basis on which that conclusion was arrived at, was not revealed.
Further, despite having both found that the soft tissue injury to the neck and cervical spine had resolved, without explanation, the Panel then concluded that there was permanent impairment to the cervical spine. What the Panel was here referring to, is simply not apparent from its reasons.
If it is a mistaken reference to what was not in issue, namely, that Mr Cornwall had a permanent impairment to his lumbar spine, the Panel not only concluded that 0% of his whole person impairment was due to the accident, it also concluded that his whole person impairment was 0%.
The insurer contended that the Panel's approach was consistent with Guideline 1.35 of the Permanent Impairment Guidelines, which provides: "1.35 Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor vehicle accident."
That was because, on the insurer's case, the Panel had concluded that Mr Cornwall had suffered no back injury in the accident giving rise to ongoing symptoms, a need for surgery, or permanent impairment, with the result that there was no permanent impairment to assess, for the purpose of determining any entitlement under the statutory scheme.
The difficulty is that the table which it used in its reasons required the Panel to indicate, having identified that Mr Cornwall did have a permanent impairment to his cervical spine, what his current whole person impairment was; what percentage of that impairment was due to pre-existing or subsequent causes; and what percentage, if any, was due to the motor accident. In the circumstances, the answers it gave for both whole person impairment and whole person impairment arising from the accident, could not both be 0%. Nor could the answer to percentage impairment from pre-existing or subsequent causes be "not applicable".
Given that in issue on the review was whether the accident had contributed to the impairment of Mr Cornwall's spine, which required surgical treatment spine, Guideline 1.35 simply did not empower the Panel not to assess the level of that impairment, both before and after the accident.
To the contrary, having concluded that the accident had caused the injuries which the Panel identified, it was not open to it to proceed on the basis that they were simply "not relevant" to its assessment of whether those injuries had contributed to the impairment of Mr Cornwall's spine. After all, that was the issue which it was called upon to resolve.
Nor was the level of Mr Cornwall's impairment caused by his pre-existing injuries, that is the impairment he was suffering before the collisions, or any impairment caused by the surgeries which he had to have after the collisions, only of "academic interest", as the insurer also contended. They were rather both a part of what the Review Panel necessarily had to consider, in accordance with Guideline 1.35, in resolving whether or not the collisions had also contributed to Mr Cornwall's impairment, by more than a negligible amount.

Costs

In the result, Mr Cornwall's case must succeed. The usual position under the Uniform Civil Procedure Rules 2005 (NSW) being that costs follow the event, the result would be an order that the insurer bear Mr Cornwall's costs of the proceedings, as agreed or assessed.
Unless the parties approach to be heard within 7 days, that will be the Court's order

Orders

For these reasons I make the following orders: 1. The Review Panel's certificate is set aside; 2. The application for review of Assessor Home's certificate is remitted to the Proper Officer for allocation to a Review Panel, to be determined according to law; and 3. Unless the parties approach to be heard within 7 days, the insurer will bear Mr Cornwall's costs of the proceedings, as agreed or assessed.

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: 28 March 2019

Motor Accident Compensation Act 1999(NSW)

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