Dannaoui v Insurance Australia Ltd t/as NRMA Insurance

Supreme Court of NSW|2020-06-22|Before: Adamson J

Solicitors: Carters Law Firm (Plaintiff) McCabe Curwood (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2020/28378

The accident and the claim

On 10 April 2016 the Claimant suffered injuries in a motor vehicle accident as a result of a collision between the car which she was driving and another vehicle. The Insurer is liable for the negligence of the owner or driver of the other vehicle. The Claimant made a claim for compensation under the Act. A dispute arose as to whether the Claimant had suffered a degree of Whole Person Impairment (WPI) as a result of the accident which was greater than 10%, this being the threshold for damages.
The Claimant applied to the Motor Accidents Medical Assessment Service (MAS) for assessment of the degree of WPI.

The assessment by Assessor Home

MAS referred the Claimant to Assessor Home for assessment of injuries to her cervical, lumbar and thoracic spine and her right and left upper extremities. On 7 March 2019 Assessor Home assessed the Claimant. On 13 March 2019, Assessor Home found that the Claimant had injured her cervical spine, lumbar spine and right shoulder in the accident but not her thoracic spine or left upper extremity. The Claimant's WPI as a result of the car accident was assessed to be 17%.

The assessment by the Panel

The Insurer applied to SIRA for review of Assessor Home's assessment. SIRA referred the matter to the Panel for assessment. The Panel assessed the Claimant on 16 October 2019 and issued a certificate on 28 October 2019. It is apparent from the Panel's reasons that, in the course of the assessment, it required further information. It instructed the secretary to issue a notice to the Claimant and the Insurer to obtain any photographs of the Claimant's car after each of the motor vehicle accidents (the subject accident and a subsequent accident which had occurred on 11 July 2016). It also sought submissions from the Claimant and the Insurer concerning the Panel's doubts that the injuries sustained to the Claimant's shoulders were the result of the accident. For reasons which are not explained, neither the Claimant nor the Insurer was notified of the request for the photographs or further submissions.
The Claimant had in her possession photographs of the accident which were capable of being produced to the Panel.
The Panel revoked Assessor Home's certificate and issued a new certificate. The Panel found that the claimant had suffered the following injuries in the accident: soft tissue injuries to the cervical, thoracic and lumbar spine and to both upper extremities. The Panel assessed the Claimant's degree of WPI to be 0%.

The Panel's reasons

In the reasons attached to its certificate, the Panel listed the documentation which it had considered. It also noted the effect of Assessor Home's certificate as well as the disputes which the parties had identified. The Panel confirmed that it had considered afresh all aspects of the assessment under review. It recorded that it had decided to re-examine the Claimant in respect of all claimed injuries. The reasons continued: "The Panel decided that additional information would assist them to make a decision. Accordingly the Panel instructed the secretary to issue a notice to both parties requesting provision of the following information: • Photographs of the claimant's car after each of the motor vehicle accidents (not provided). • Submission from the parties were invited concerning the Panel doubting causation of injury to either shoulder as a result of the subject MVA (not provided)."
The Panel's reasons noted that the following injuries were to be assessed: "• Cervical spine - sprain, strain, protrusion • Lumbar spine - sprain, strain • Thoracic spine - sprain, strain • Right upper extremity - contusion, sprain, bursitis • Left upper extremity - contusion, tendonitis, bursitis, sprain"
Under the heading, "History of the Motor Accident", the Panel recorded the circumstances of the accident as follows: "On 10 April 2016, Ms Dannaoui was the seatbelted driver of her car, turning right, when a car came from her right side and T-boned her vehicle near the front of the driver's side. The car was not driveable after the collision and was apparently written off by the insurance company. Fire services were required to extricate the claimant from the car."
The Panel noted that the Claimant had been involved in the second accident referred to above.
When recording its findings on clinical examination, the Panel noted that the Claimant exhibited "an abnormal pain response during the examination". In respect of the Claimant's upper extremities, the Panel said: "There was no obvious deformity or associated muscle wasting. However, it was noted that during the examination process, there was a very abnormal pain response to all requested movements, for which there did not appear to be any physical answer. There were significant inconsistencies in movements of both shoulders that Ms Dannaoui said was due to widespread pain in her upper body."
The Panel set out its record of the range of motion of flexion, extension, abduction, adduction and external and internal rotation for both right and left shoulders. It noted: "There was no crepitus noted in the shoulders. A goniometer was used but the measurements because of inconsistency cannot be used in assessing impairment."
Under the heading, "Panel Deliberations" the Panel said: "List of Injuries to be Assessed • Cervical spine - soft tissue injury • Lumbar spine - soft tissue injury • Thoracic spine - soft tissue injury • Right upper extremity - soft tissue injury • Left upper extremity - soft tissue injury As has been mentioned above, there were what appeared to the assessors to be quite marked psychological symptoms associated with pain related behaviours including abnormal pain responses to the request for active movements with the neck, back and shoulders. There did not appear to be any physical explanation for the marked abnormalities and inconsistencies during the examination process in all the claimed injured areas. The description of the accident given by the claimant indicated that the subject accident on 10 April 2016 was the T-boning of the driver's side of the claimant's car by another vehicle, with the car being apparently severely damaged, although no photographs were able to be provided. It was written off by the insurance company. Contemporaneous medical documentation from St George Hospital discharge summary and the early medical notes from her general practitioner, Dr Abraham, was sufficient to accept soft tissue injuries to the neck and back. However, there was no documentary evidence of injury to the upper extremities until some four months after the subject MVA, despite frequent mention of attendances in the general practitioner records. This was discussed with the claimant, who indicated she considered she had mentioned the shoulders to Dr Abraham but she did not know why they were not mentioned in the records. …"
The Panel opined that the second accident would not have been likely to lead to any long-term problems concerning the Claimant's neck or back.
The Panel made findings regarding impairment as follows: "The Panel gave consideration to medical imaging taking place between June and August 2018 of the cervical spine and both upper extremities, with evidence of soft tissue abnormalities but nothing to explain the degree of restrictions and pain noted during the examination process. There was manifestation of many psychological symptoms, including fear of movement, and the claimant did explain that she was continuing to receive psychological support on a regular basis. The Panel gave careful consideration to the many specialist reports fully described by the Assessor, with these reports dating from 2014 to 2018. The Panel did note specifically that the range of motion of the shoulders, as recorded by the Assessor in March 2019, was very significantly better than that recorded during the examination by members of the Panel. The Panel considered there was no physical explanation for this very substantial deterioration in the range of motion of both shoulders. During the Panel examination, range of motion of each shoulder was inconsistent. The claimant was unable to explain the variation. There is no evidence of structural abnormality at either shoulder that would cause assessable permanent impairment. In summary, the Panel has considered that the degree of pain manifestation and very significantly abnormal illness behaviour made it very difficult to make a definitive objective assessment of impairment resulting from the accident in April 2016. The Panel considered that it was implausible for the subject motor vehicle accident to have been responsible for the very significantly abnormal physical and inconsistent findings noted during the examination. The claimant told the examiners she was continuing to receive regular psychological support, which it is hoped will be of benefit for her. The Panel has not found it possible to decide upon any physical impairment resulting from the subject motor vehicle accident. Consequently, the Panel has decided that there is no evidence to support a finding of other than 0% whole person impairment to the cervical spine, thoracic spine, lumbar spine and both upper extremities consequential upon the subject motor vehicle accident of 10 April 2016."
The Panel found that the subject accident was the cause of the subject injuries, being soft tissue injuries to the cervical, lumbar and thoracic spines and left and right upper extremities, each of which gave rise to permanent impairment, which it assessed as 0% WPI.

The Act

No damages may be awarded for non-economic loss unless the degree of WPI is greater than 10%: s 131 of the Act. A dispute as to this question is to be determined by a medical assessor: s 132. The question whether the degree of permanent impairment of the Claimant as a result of injuries caused by the accident was greater than 10% is a "medical assessment matter" within the meaning of s 58(1) of the Act: s 58(1)(d). Section 57 defines "medical assessor" as a person appointed under Part 3.4 of the Act to make an assessment under that part. SIRA is required to appoint medical practitioners to be medical assessors for the purposes of Part 3.4: s 59. A medical dispute may be referred to SIRA, which is required to arrange for the dispute to be referred to one or more medical assessors: s 60. Medical assessors are required to give a certificate as to the matters referred for assessment: s 61 of the Act.
A party to a medical dispute may apply to the proper officer of SIRA to refer a medical assessment by a single medical assessor to a review panel of medical assessors for review if it was alleged to be incorrect in a material respect: s 63(1) and (2). The review panel may confirm the certificate or revoke it and issue a new certificate: s 63(4). Section 61 applies to any new certificate issued under s 63.
Section 63(3A) provides: "The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned."

Guidelines under the Act

SIRA may issue guidelines with respect to the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident and also with respect to the procedures for referral of disputes for assessment or review of assessments: s 44(1) of the Act.
Medical assessments under Part 3.4 are subject to the Guidelines: s 65(1) of the Act. The assessment of the degree of permanent impairment is to be made in accordance with the Guidelines: s 133(2). Two relevant guidelines have been made under s 44: the Medical Assessment Guidelines (the Guidelines) and the Permanent Impairment Guidelines (the PI Guidelines).

Medical Assessment Guidelines

Chapter 16 of the Guidelines makes provision for review of medical assessments. Clause 16.17 relevantly provides: "16.17 The Proper Officer will, within 5 days of advising the parties that the matter is to be referred to a Review Panel: 16.17.1 convene a Review Panel consisting of at least 3 Medical Assessors to undertake the review from the Authority's list of Medical Assessors, having regard to the nature of the injury and any continuing disabilities, the nature of the dispute, the location of the claimant, the location of the Assessors, and any other relevant information; …"
Clause 16.19 provides in part: "The Proper Officer or an officer of MAS shall act as secretary to the Review Panel and provide administrative support to the Review Panel …"
Clause 16.21 relevantly provides: "16.21 The Review Panel is to hold an initial meeting or teleconference within 30 days of the date the panel was convened and, at that meeting or in subsequent meetings, is to: 16.21.1 consider afresh all aspects of the assessment under review; 16.21.2 determine whether re-examination of the claimant is required, and if so set a timetable for that to occur; 16.21.3 determine whether additional information is required in order to make a decision; 16.21.4 determine whether each of the certificates issued by the original Assessor is to be confirmed or revoked; 16.21.5 if revoked, determine what new certificates are to be issued; … 16.21.9 advise the Proper Officer of any determinations under this clause."
Clause 16.23 provides: "16.23 In the case of clause 16.21.9 the Proper Officer will advise the parties of any determinations made in a panel conference within 5 days of being advised of those determinations."

Permanent Impairment Guidelines

The PI Guidelines relevantly provide: "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. … 1.7 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. Impairment and disability … 1.9 Impairment is defined as an alteration to a person's health status. It is a deviation from normality in a body part or organ system and its functioning. Hence, impairment is a medical issue and is assessed by medical means. … Evaluation of impairment 1.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment: 1.17.1 is an impairment arising from an injury caused by the accident, and 1.17.2 is an impairment as defined in clause 1.9 above. 1.18 An assessment of the degree of permanent impairment involves three stages: 1.18.1 a review and evaluation of all the available evidence including: • medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) • medico-legal reports • diagnostic findings • other relevant evidence 1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and 1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced."

Consideration

The Claimant raised three separate grounds of appeal: first, denial of procedural fairness; second, failure to make an inquiry; and third, an error of law arising from a finding for which there was no evidence. Mr Davis, who appeared on behalf of the Claimant, accepted that the first two grounds were related. Accordingly they will be addressed together.

Alleged denial of procedural fairness and failure to make an inquiry

It was common ground that the parties had not been notified of the Panel's request for further information and submissions and that therefore they had each been deprived of the opportunity of providing information and submissions to the Panel.
The requirements of procedural fairness apply to an assessment by the Panel: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ).
In substance, the Claimant submitted that the failure of the Panel to notify the parties of the request for further information and submissions amounted to a denial of procedural fairness which ought lead to the Panel's decision being set aside and the matter being remitted to SIRA to be determined in accordance with law.
Mr Davis submitted that the Panel's request for further information must be taken to have arisen from doubts as to whether the car accident had caused the injuries to the Claimant's shoulders. He contended that, by not being notified of the request, the Claimant had been deprived of the opportunity to put forward evidence (by way of photographs) and submissions which linked her shoulder injuries to the accident. He submitted that, as a consequence, the Claimant had suffered "practical injustice" in the sense referred to in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (Ex parte Lam) at [38] (Gleeson CJ).
Mr Davis argued that if the Claimant had received the request for additional information "she would have provided it, and the additional information would have been relevant to the question as to whether injury to her left and right shoulder bursae and a tendonitis injury to her left upper extremity were caused by the subject motor accident".
In response to the Insurer's submission that the relief would have no utility, Mr Davis submitted that the Court ought exercise a high degree of caution before deciding that the denial of procedural fairness could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 and Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 at [45]-[47], [55]-[60]. He submitted that the Panel's finding regarding "soft tissue injuries" was insufficiently detailed to be read as applying to tendonitis or injuries to the Claimant's bursae.
Mr Davis further submitted that there was a sufficient nexus between the failure to make an obvious inquiry on the part of the Panel (whether the request for information and submissions had been communicated to the parties and whether any response had been received) and the certificate to warrant a grant of relief. He submitted that the failure to make an inquiry (as to whether the Claimant had responded to the request for information) fell into the category of cases where such a failure amounted to a jurisdictional error or a constructive failure to exercise jurisdiction: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Ms Gumbert, who appeared on behalf of the Insurer, accepted that the Claimant had been deprived of this opportunity but submitted that there had been no denial of procedural fairness because no practical injustice had arisen as a consequence. She contended that the request for information was inconsequential because the Panel had found that the Claimant had suffered soft tissue injuries (a term which was apt to include injuries to bursae and tendonitis) to both her shoulders as a consequence of the accident. She submitted that there was no practical effect arising from the fact that the Panel did not have the additional information because the issue of causation had been determined in the Claimant's favour. She contended, for this reason, that there was no relevant error. In the alternative, she relied on all the matters which established lack of practical injustice to support her submission that relief ought be declined on the grounds of futility.
The Panel's request for further information was plainly germane to the issue of what injuries were caused by the subject accident. The photographs of the accident would have been relevant to an assessment of the impact of the collision. They might also have shown the proximity between the damage to the Claimant's vehicle and her location at the time of impact. Submissions on whether the injuries to the Claimant's shoulders were caused by the subject accident were also plainly relevant to the issue of causation of injuries. However, neither of these two issues was relevant to the issue of impairment.
It is apparent from the Panel's reasons that it concluded that all of the injuries which it was required to assess were caused by the subject accident and, accordingly, were not caused by other events, such as the second accident, or any underlying cause. Thus, the Panel decided that issue in favour of the Claimant. Procedural fairness requires that a party be given an opportunity to be heard before an adverse decision is made against that party. In the present case, the Panel did not need to hear further from the Claimant in respect of the issue of causation before deciding the issue in her favour.
The Panel's request for information did not create any expectation in the parties that the Panel required the information before it could make a decision since the parties were unaware that it had been requested. The Panel's reasons note that the information and submissions sought were not provided. However, the Panel's reasons provide no indication that it drew any inference against either party on that ground. Indeed, the Panel decided the relevant point in favour of the Claimant notwithstanding that, from the Panel's point of view, she had not taken up its invitation to provide further information or submissions. Thus, no practical injustice to the Claimant arose from the circumstance that the Panel's request was not communicated to the parties: see Ex parte Lam which was considered in the context of an assessment under the Act in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41] (Leeming JA) and Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22.
Similar considerations apply to the related ground: the failure to make an inquiry. It is not clear from the reasons whether the Panel knew that its request had not been communicated to the parties or whether it assumed, or had been incorrectly informed, that the parties had been notified and had chosen not to respond. However, whatever the Panel thought had happened, it can be taken to have appreciated that it was not necessary to hear from the Claimant on causation. All the injuries claimed by the Claimant to the various parts of her body were treated by the Panel as soft tissue injuries. The characterisation of all of the claimed injuries as "soft tissue injuries" was plainly within the expertise of the Panel and is not subject to review by this Court. Thus, a global finding that all the soft tissue injuries were caused by the subject accident was entirely in the Claimant's favour. For these reasons, there was no relevant failure to inquire.

Alleged error of law

The ground of alleged error of law was said to arise from what the Panel said in its reasons about there being no documentary evidence of injury to the Claimant's upper extremities until about four months after the subject accident. The particular passage relied on by the Claimant is as follows: "Contemporaneous medical documentation from St George Hospital discharge summary and the early medical notes from her general practitioner; Dr Abraham, was sufficient to accept soft tissue injuries to the neck and back. However, there was no documentary evidence of injury to the upper extremities until some four months after the subject MVA, despite frequent mention of attendances in the general practitioner records. This was discussed with the claimant, who indicated she considered she had mentioned the shoulders to Dr Abraham but she did not know why they were not mentioned in the records."
Mr Davis alleged that the Panel had rejected a connection between the alleged tendonitis and bursae injuries because of late reporting. It is not clear what it meant by "there was no documentary evidence of injury to the upper extremities". Mr Davis tendered the material before the Panel which showed that the Claimant made contemporaneous complaints to the hospital staff about pain in her shoulders (in addition to pain in her neck, arms and back) after the accident. The answer to this ground is that, notwithstanding the Claimant's failure to complain about her shoulder to Dr Abraham, her general practitioner, until four months after the accident, the Panel was satisfied that all injuries claimed had been sustained in the subject accident.
The Panel's finding that all claimed injuries had been sustained in the subject accident is sufficient to displace this ground of appeal. Contrary to Mr Davis's submission, the Panel did not consider that the lack of record of complaint to the Claimant's general practitioner for the first four months after the subject accident was sufficient to break the causal nexus (of which it was satisfied) between the Claimant's shoulder injuries and the subject accident.

Costs

The parties agreed that costs ought follow the event in accordance with the general rule: UCPR, r 42.1. I enquired of the parties whether, if the appeal were successful, the unsuccessful party would be eligible for a certificate under the Suitors' Fund Act 1951 (NSW). Ms Gumbert referred me to Lou v IAG Limited t/as NRMA Insurance [2019] NSWCA 319 in which the Court of Appeal found that an application for review of an assessment under the Act pursuant to s 69 of the Supreme Court Act was an "appeal" within the meaning of s 6 of the Suitors' Fund Act at [63] and [66] (Payne JA, Gleeson and Brereton JJA agreeing). As the appeal was not successful, no occasion for the grant of such a certificate arises in the present case.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the amended summons filed on 5 March 2020. 2. Order the plaintiff to pay the first defendant's costs of the proceedings.

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: 23 June 2020

Suitors' Fund Act 1951(NSW)

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