Findlater v Insurance Australia Limited t/as NRMA Insurance

Supreme Court of NSW|2020-10-14

Background

On 22 January 2014, the plaintiff was riding his motorcycle along the bus lane on Victoria Road near Drummoyne when he collided with the back of a truck which had cut across the middle lane into his path while pulling into a service station ("the accident"). The collision caused the plaintiff to fall from his bike.
The plaintiff's claim for damages is governed by the MAC Act.
The insurer is the compulsory third party insurer of the truck at fault. It has admitted liability for the accident. The plaintiff's damages remain to be assessed by a claims assessor attached to the Claims Assessment and Resolution Service ("CARS") of SIRA.

The Motor Accidents Permanent Impairment Guidelines

The assessment of permanent impairment is governed by the Motor Accidents Permanent Impairment Guidelines ("the Guidelines"). In summary, it is the medical assessor's task to place the spinal injury into the appropriate Diagnosis Related Estimates ("DRE") category. The DRE categories are listed in Table 7 of the Guidelines. In Table 7, "multi-level structural compromise" qualifies for a DRE categorisation of IV or V.
Clause 1.144 of the Guidelines defines "multi-level structural compromise" as being fractures of more than one vertebra. However, cl 1.145 of the Guidelines provides that multi-level structural compromise also includes a spinal fusion and an intervertebral disc replacement.
There is no issue that on 15 August 2018, the plaintiff had an intervertebral disc replacement at C4-5, described by the plaintiff's treating neurosurgeon, Dr Paul D'Urso, as a "disc arthroplasty". Accordingly, the plaintiff had suffered a multi-level structural compromise in accordance with the expanded definition in cl 1.145 of the Guidelines. In these circumstances, the plaintiff submitted that he qualified for a permanent impairment rating based on DRE category IV or V, either of which category yields a greater than 10% permanent impairment, provided that the surgery in August 2018 related to the cervical spine injury caused by the accident.
As to how the issue of causation of injury is determined by a medical assessor, the Guidelines provide: "Causation of injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 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."
Given the plaintiff's disc replacement surgery, there was a subsidiary issue to determine, which was whether the disc replacement surgery was related to the plaintiff's cervical spine injury caused by the motor accident.
Treatment is related to an injury caused by a motor accident if the accident makes a material contribution to the need for treatment. In determining causation, a medical assessor must consider whether the treatment would not have arisen but for the occurrence of the accident: AAI Limited I/as AAMI v Phillips [2018] NSWSC 1710 at [29] per Davies J.
Finally, cll 1.31 and 1.34 of the Guidelines provide: "Pre-existing impairment 1.31 The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored. Subsequent injuries 1.34 The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored."

The application for further assessment

The application for further assessment was supported by reports from Dr D'Urso dated 26 June 2019 and Dr Gerard Barold, specialist in occupational medicine, dated 24 June 2019. The plaintiff submitted that the reports of Drs D'Urso and Barold constituted additional relevant information about the injury which was capable of having a material effect on the outcome of the previous assessment, in the sense that the plaintiff's degree of permanent impairment would be assessed as being greater than 10%. The crux of the plaintiff's argument was that Dr D'Urso had opined in his report that the accident precipitated a worsening of the plaintiff's pre-existing cervical spine injury which caused the need for surgery. Dr D'Urso stated: "It would appear that the progressive degenerative change, and recurrent injury to the C4-5 intervertebral disc, resulted in chronic pain and intermittent acute flare-ups of symptoms that led to surgical intervention. The motor vehicle accident in 2014 would appear to have materially contributed to John Findlay's [sic] C4-5 cervical disc prolapse and need for surgery."

The certificate and reasons of the Medical Assessor dated 31 December 2019

On 31 December 2019, the Medical Assessor certified that the plaintiff's rib fractures and cervical spine injury gave rise to a degree of permanent impairment which was not greater than 10%. In his reasons for his decision, the Medical Assessor referred to previous assessment on 29 September 2015. The plaintiff had stated his belief that the accident had re-aggravated a previous injury to his neck. It was the plaintiff's opinion that the accident had worsened his pre-existing condition, although he acknowledged that he was symptomatic prior to the accident and had never made a full recovery (p 5).
The Medical Assessor then made a number of comments in relation to his September 2015 assessment. He said that there was a well-documented prior history of cervical spine complaints relating to the plaintiff's employment in the Australian Navy. He went on to say that there was no doubt that the plaintiff had a significant prior history of neck problems, and although there was no quantifiable assessment previously with regards to the impairment, the Medical Assessor considered it plausible that the accident aggravated a pre-existing condition.
The Medical Assessor concluded that the plaintiff had suffered a soft tissue injury to the cervical spine and aggravation of degenerative changes as a result of the accident. According to the Medical Assessor, it was important to note that after the accident, the plaintiff' complained of localised neck pain with no referral into either upper limb.
Next, the Medical Assessor dealt with the plaintiff's current symptoms and status since his assessment in September 2015. The Medical Assessor noted that the plaintiff had undergone a C4/5 disc replacement procedure and that it was Dr D'Urso's opinion that the surgery resulted from the accident and therefore sounded in a degree of permanent impairment greater than 10%. Dr D'Urso had attributed a degree of permanent impairment of 25% for the cervical spine injury and 1% for the surgical scar.
The Medical Assessor also noted with interest that in late 2016, the plaintiff had experienced a significant deterioration of his cervical spine injury after a heavy lifting incident at work. In the opinion of the Medical Assessor, it was ultimately the heavy lifting incident which resulted in the need for surgery.
The Medical Assessor then summarised the contents of D'Urso's report as follows: "Dr D'Urso goes on to state in his report that the motor vehicle accident in 2014 would appear to have materially contributed to the claimant's C4/5 disc prolapse and need for surgery and states on the balance of probabilities that the motor vehicle accident could well have accelerated degenerative changes as a result of surgery being performed at an earlier time than may otherwise have been performed if not as a result of the motor vehicle accident. He considered, therefore, the disc replacement surgery was related to the motor vehicle accident. (But failed to mention that his previous employer i.e. be it the Navy or DVA - Department of Veterans' Affairs - had accepted liability for the surgery and costs as causally related to either his employment in the Navy or as trade instructor - when following a lifting incident. severely worsened his neck with subsequent referral of symptoms involving the upper limbs.) Presumably, therefore Dr D'Urso had written to Mr Findlater's previous employer to accept liability for all surgery costs which they subsequently did so. Hence, there is already a party that has accepted full liability for his need for cervical surgery."
In his reasons, the Medical Assessor then referred to documentation he considered to be important. One document was a letter from Dr D'Urso dated 26 June 2017 to the plaintiff's treating general practitioner, which referred to the accident and the heavy lifting incident in January 2016 that produced severe cervical pain with radiation into the right arm, including some paraesthesia and mild weakness. The Medical Assessor also noted that there was no history of radicular arm pain for three years after the accident. It was only after the heavy lifting incident that there was an acute flare-up of the plaintiff's right-sided neck pain involving his right upper extremity. At pp 15 to 18 of his reasons, the Medical Assessor made findings on his clinical examination of the plaintiff.
The Medical Assessor in his written reasons set out his conclusions on causation at pp 20-24. The Medical Assessor relevantly stated: "Diagnosis and Causation For the reasons as stated above, clinically he now presents as a DRE II with asymmetric movement, even though there is no hint of muscle spasm. There is certainly no evidence of radiculopathy. This is similar to the DRE II as presented previously pre-surgery. Although not mentioned at all in any of the subsequent documentation. It is to be noted that he has had surgery and that the surgery was funded and liability was accepted by the Department of Veteran's Affairs. That being the case, there is a clear acknowledgment by his previous employer that his employment has been a very substantial contributing factor to the need for surgery. In that respect, I consider liability has been accepted and causation has been identified. That being the case, I also note the very much delayed onset of radiculopathy some three and half to four years post motorbike accident and subsequent work-related incidents as noted, particularly in 2017 which involved a lifting episode, and the delayed onset of radiculopathy which is implausible from the point of view of the motor vehicle accident itself. That being the case, I consider that there is insufficient evidence to demonstrate the requirement for surgery relates to the motorbike accident of 22 January 2014 for the following reasons: - the amount of time that has transpired since the accident. - delayed onset of symptoms. - the very substantial pre-existent history prior to the motorbike accident in the Navy. - the subsequent also factors exacerbating activities, lifting etc, subsequently in 2017/2018 (sic). - MRI confirming a new disc extrusion/sequestration in July 2018 (not present post MBA). In that respect, there is no evidence to demonstrate a change in the condition immediately post motorbike accident. I consider that the development of pathology as defined in the later MRls confirm that the need for surgery is related to the pathology which developed significantly after the motorbike accident per se and is due to the subsequent accidents with resulting onset of discogenic pathology." (my emphasis)
The Medical Assessor then considered cl 1.6 of the Guidelines and concluded: "For the reasons as stated above, there is no evidence that the MBA of 2014 either caused or contributed to worsening of his pre-existent symptoms of neck pain, other than short term aggravation. That subsequent events post accident severely aggravated his pre existent cervical spondylosis with onset of radicular symptoms some four years post accident and an MRI in 2018 confirmed new pathology, i.e. disc protrusion and extrusion - not present previously. Similarly with regards to clause 1.7 the motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. i.e. would this (surgery) have occurred if not for the accident? In this instance, there is no evidence that surgery would have been required if not for subsequent events - that his employer - the Navy has since accepted full liability." (my emphasis)

Grounds of judicial review

While the plaintiff's grounds of judicial review are expressed in different ways, they all centre upon the Medical Assessor's approach to causation. I have set them out as follows.

(1) The identification of relevant and irrelevant considerations

The first ground of judicial review is that in determining whether the plaintiff's cervical spine surgery on 15 August 2018 related to his cervical spine injury caused by the motor accident, the Medical Assessor took into account an irrelevant consideration, namely that in paying for the cervical spine surgery, the plaintiff's previous employer had clearly acknowledged that the plaintiff's employment had been a "very substantial contributing factor to the need for surgery".

(2) No evidence

The second ground of judicial review is that there was no evidence that the plaintiff's previous employer had clearly acknowledged that his employment had been a "very substantial contributing factor to the need for surgery". A finding of fact for which there is no evidence is an error of law which appears on the face of the record.

(3) Failure to apply the proper test

The third ground of judicial review is that the Medical Assessor did not employ the proper test to determine whether the plaintiff's cervical spine surgery related to his cervical spine injury caused by the motor accident. The proper test involved asking whether or not the subject motor accident made at least a material contribution to the need for surgery. Further, the plaintiff submitted that the Medical Assessor should have considered whether the surgery would not have arisen but for the accident.

(4) Denial of procedural fairness

The fourth ground of judicial review is that the plaintiff was denied natural justice or procedural fairness. He was not given the opportunity to respond to the argument that the surgery did not relate to the cervical spine injury caused by the motor accident on the basis that his employer had paid for the surgery.

(5) Failure to apply cl 1.7 the Guidelines

The fifth ground of judicial review is that the Medical Assessor failed to apply the relevant Guidelines. Clause 1.7 of the Guidelines, set out earlier in this judgment, outlines the accepted approach to determining causation. The Guidelines recommend considering the question, "Would this injury (or impairment) have occurred if not for the accident?" The plaintiff submitted that the Medical Assessor instead posed the question, "Would this (surgery) have occurred if not for the accident?" It is the plaintiff's position that the Medical Assessor asked himself the wrong question, and as a consequence, took into account the payment of the surgery, which was an irrelevant matter.

(6) Failure to apply cll 1.31 and 1.34 of the Guidelines

The final ground of judicial review is that the Medical Assessor failed to observe cll 1.31 and 1.34 of the Guidelines by failing to calculate pre-existing and subsequent and unrelated impairment.

The plaintiff's submissions

The plaintiff submitted that the Medical Assessor took into account an irrelevant consideration in his determination, which was that by paying for the plaintiff's cervical spine surgery, the plaintiff's employer had clearly acknowledged that his employment had been a "very substantial contributing factor to the need for surgery". It was on this basis that the Medical Assessor determined that liability to pay for the cost of surgery had been accepted and causation of the need for surgery thereby established.
The plaintiff submitted that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision-maker to act, rather than from the particular facts of the case that the decision-maker is called on to consider: Rodger v De Gelder [2015] NSWCA 211 at [85]; (2015) 71 MVR 514 (Gleeson JA; Macfarlan JJA and Leeming agreeing) citing Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at [195] (per Gummow and Hayne JJ) and Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [15] (Basten JA; McColl and Macfarlan JJA agreeing).
It is the plaintiff's case that identification of relevant and irrelevant considerations can be drawn from cl 1.6 of the Guidelines. As the Medical Assessor acknowledged, he was to consider physical, chemical or biological factors which may have contributed to the occurrence of the plaintiff's medical condition. However, this meant that the Medical Assessor needed to only concern himself with the evidence, in the form of clinical records, expert reports, reports from treating medical practitioners and the evidence from the plaintiff concerning the circumstances of the accident and the symptoms he experienced thereafter. The plaintiff submitted that the fact that his employer might have paid for the surgery was irrelevant on the issue of causation of injury, and involved ex post facto reasoning on the Medical Assessor's part.
Further, the fact that the plaintiff's employer might have paid for the surgery was irrelevant to the question as to whether the plaintiff's cervical spine injury caused by the motor accident had made a material contribution to the need for surgery. It was also irrelevant to the question as to whether or not the surgery would have been performed but for the plaintiff's cervical spine injury caused by the accident. These questions required a consideration of the evidence mentioned in the above paragraph.
From the reasons of the Medical Assessor, that the fact that the plaintiffs employer had paid for the surgery was decisive on the issue as to whether the surgery related to the plaintiff's cervical spine injury caused by the accident.
Critically, the Medical Assessor referred to this line of reasoning in his conclusion at p 22 of his reasons, where he stated, "In that respect, I consider liability has been accepted and causation has been identified". This was an error of law on the face of the record and a constructive failure to exercise jurisdiction.

Resolution

As the plaintiff identified in his submissions, the identification of relevant and irrelevant considerations is to be drawn from the statute which empowers the decision maker to act. Here, it is the provisions of the MAC Act.
Causation of injury is set out at cll 1.5 to 1.7 of the Guidelines, as reproduced earlier in this decision. The considerations which were relevant to the Medical Assessor's determination can be drawn from cl 1.6 of the Guidelines. The Medical Assessor correctly stated that he must look at physical, chemical or biological factors which may have contributed to the occurrence of a medical condition.
However, the Guidelines on causation make no reference to considering who paid for the surgery as a relevant factor in the determination of causation. The Medical Assessor is obliged to adhere to the Guidelines. It may be that both the Navy and motor vehicle accident contributed to the worsening of the plaintiff's injury to his cervical spine. However, the fact that the Navy paid for the surgery does not, according to the Guidelines, have any role to play in determining causation of the injury. As such, the Medical Assessor took into an account of an irrelevant consideration that was decisive in his decision as to causation. By so doing the Medical Assessor misunderstood the Guidelines and applied the wrong test, which was a constructive failure to exercise jurisdiction: see Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; (1947) 64 WN (NSW) 107 at 420. In my view, the Medical Assessor's decision is vitiated by error of law and should be set aside. As this is the central ground of judicial review, it is now not necessary to consider the other grounds of judicial review.

The Proper Officer's decision

The plaintiff submitted that if the Court concludes that the Medical Assessor's certificate should be set aside, it will not be necessary for the Court to review the proper officer's decision to refuse the plaintiff's application for review. As I have concluded that the Medical Assessor's certificate should be set aside, it is not necessary to deal with the Proper Officer's decision.

The Court orders that: (1) An extension of time is granted for the plaintiff to commence these proceedings up to an including 14 July 2020.

The Court declares that: (2) The decision of the Medical Assessor in matter number 2019/04/2463 issued on 31 December 2019 is vitiated by error of law.

The Court makes an order: (3) In the nature of certiorari removing into the Court the decision of the Medical Assessor issued on 31 December 2019 in matter number 2019/04/2463 and quashing that decision. (4) Matter number 2019/04/2463 is to be remitted to SIRA to be determined in accordance with law. (5) Costs are reserved.

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: 14 October 2020

Extension of time

The first issue that needs to be addressed is whether the plaintiff should be granted an extension of time in relation to the filing of the summons.
The plaintiff requires an order under UCPR 59.10(2) extending the time for him to bring these proceedings with respect to the Medical Assessor's decision. The basis for the extension is that it was appropriate for the plaintiff to first exhaust his review rights under the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act") before commencing proceedings in this Court. The approach taken by the plaintiff is an approach recently endorsed by this Court: see Slade v Insurance Australia Limited t/as NRMA [2020] NSWSC 1031 at [22] per Wright J, citing Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [91] to [92].

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