Insurance Australia Limited t/as NRMA Insurance v Duc Thuong Le

Supreme Court of NSW|2024-08-02

l Injury Commission of New South Wales Date of Decision: 24 August 2023 Before: Margaret Gibson, Tai-Tak Wan and Susan McTegg as a Personal Injury Review Panel Constituted Under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) File Number(s): R-M10535229/22

Grounds of review

The grounds of review are: Ground 1: The review panel was required to determine the question of causation in accordance with clauses 6.5 - 6.7 of the Motor Accident Guidelines …, the Civil Liability Act 2002 and common law principles. The review panel erred in determining causation as follows: (a) The review panel reversed the onus of proof and/or otherwise did not apply the correct principles regarding onus of proof in relation to causation. (b) The review panel failed to approach the determination of causation as required by clauses 6.5 - 67 [sic] of the guidelines, section 5D of the Civil Liability Act 2002, and common law principles. (c) In particular, the review panel erred in finding that that [sic] the claimant's post-accident agitation was caused by the accident merely because there was no evidence of pre-accident agitation, in circumstances where it was accepted that the claimant was under the effect of stimulant drugs. (d) The review panel's approach to causation reveals error in the nature of a post hoc ergo propter hoc fallacy. These errors constitute jurisdictional error and error of law on the face of the record. Ground 2: The review panel was required to provide reasons for its decision, pursuant to section 7.23(7) of the [Motor Accident Injuries] Act. The review panel failed to expose its actual path of reasoning in the following respects: (a) Failing to explain how the claimant sustained a brain injury in the subject motor accident. (b) Failing to explain what "impact of the accident" was said to have caused the agitation that the review panel determined was caused by the accident. (c) Failing to explain why the accident caused the said brain injury. (d) Failing to explain whether the claimant sustained a brain injury in the motor accident or in the subsequent beating of his head on the ground (or combination of the two). (e) Referring to the presence of seizure activity to support the finding of existence of brain injury caused by the accident, in circumstances where the review panel also said that the accident was not a contributing factor to any seizure. These are errors of law on the face of the record. Ground 3: Making a finding that there was a head injury and traumatic brain injury sustained in the motor accident, when there was no evidence to support that finding. This was a jurisdictional error. Ground 4: Failing to respond to a substantial and clearly articulated argument made by the insurer, based on established facts, regarding the cause of the claimant's claimed head injury and brain injury. This was a constructive failure to exercise jurisdiction and a denial of procedural fairness.
In oral submissions in this Court, Ms Gumbert, counsel for the plaintiff, confirmed that the principal issue in the present application was the review panel's findings as to the cause of the head injury. Ms Gumbert said that the relief sought in the grounds seeking relief encompassed "the whole of the decision merely because it was not practicable to carve up a decision and send parts back". [1]

Background facts

The accident occurred in the early hours of Sunday morning, 7 October 2018. The vehicle in which the defendant was travelling as a rear seat driver's side passenger collided with the rear of a vehicle travelling in the same direction, then mounted the footpath and collided with a tree. It is accepted by the plaintiff that the vehicle had been travelling at about 100 kilometres per hour before the collision.
A witness reported to police that he heard a person banging on the car window trying to get out. The witness smashed the passenger side front window and the person crawled out through that smashed window. That person was the defendant. The witness reported that the defendant was holding his shoulder in pain. His behaviour was erratic and he may have been intoxicated. He became aggressive and was yelling.
A police officer, Constable Giblin, went to the scene of the accident. He reported that the defendant was standing in the middle of the road and behaving erratically. He refused to get off the road even though cars were passing close by. Constable Giblin pulled him off the road at which point the defendant started kicking and thrashing and trying to push the police officer away. When the defendant was restrained on the ground, he started beating his head on the ground forcefully and repeatedly, at least a dozen times.
Constable Giblin believed that the defendant was drug affected. The police officer did not believe that the defendant had any head injuries that he could see prior to the defendant beating his head on the ground. He considered that given the force with which the defendant was hitting his head on the ground, the injuries that he saw were sustained during the hitting of the head on the ground.
The defendant was taken by ambulance to hospital. Urine tests conducted in the hospital confirmed that the defendant had consumed illicit drugs, including benzodiazepines, cocaine and amphetamines prior to the accident.

The proceedings below

In the PIC, the defendant claimed that he had suffered multiple injuries as a result of the accident. There was a dispute between the defendant and the plaintiff as to the medical assessment matter set out in sch 2 cl 2(e) of the Motor Accident Injuries Act 2017 (NSW) ("the Act"), namely whether the injury caused by the accident was a "threshold injury" for the purposes of the Act. From 1 April 2023 the Act provides that a "minor injury" is known as a "threshold injury".
A "threshold injury" is defined in s 1.6 of the Act as including a soft tissue injury. The plaintiff does not dispute that an injury to the brain is not a threshold injury.
The plaintiff disputed that any of the injuries were non-threshold injuries and, as stated above at [4], disputed that any head or brain injury was caused by the accident as opposed to having been caused by the defendant's own conduct following the accident.

The assessment by the Medical Assessor

The defendant was assessed by Medical Assessor Cameron on behalf of the PIC, who determined on 28 August 2022 that all of the claimed physical injuries were minor injuries, but the head and traumatic brain injury was a non-minor injury caused by the accident. He issued a certificate in which he concluded the following injuries were a minor injury: Cervical spine - soft tissue injury Right shoulder - soft tissue injury Abdomen - soft tissue injury Lumbar spine - soft tissue injury
The Medical Assessor concluded that the following injury was not a minor injury: Head - mild traumatic brain injury
In his reasons, the Medical Assessor stated that the mild traumatic brain injury was not a "minor" injury because there had been documented abnormalities of brain function and thus there had been an injury to the organ that is the brain.
The Medical Assessor had earlier reviewed and summarised relevant documentation. His summary included the following: The ambulance form confirms the incident on 7 October 2018. It noted there had been a high speed motor vehicle crash. Police officers were restraining Mr Le. He was agitated and unco-operative. The airbags were deployed and there was significant damage to the vehicle. Sedation was given. The initial Glasgow Coma Score was 12 and became 3 after administration of Droperidol.
The Medical Assessor's conclusions included the following: In the motor vehicle crash on 7 October 2018, Mr Le sustained a mild traumatic brain injury and musculoskeletal injuries. There is clear documentation from the ambulance form and from the treating clinicians at St Vincent's Hospital that there was a brain injury and seizures occurred. There was a significant disturbance in level of conscious [sic] and post traumatic amnesia occurred. That is not a minor injury. … Causation is established based on the information provided by Mr Le and the clinical records, particularly the ambulance report and the St Vincent's Hospital discharge summary. … The following injuries WERE caused by the motor accident: Head - mild traumatic brain injury Cervical spine - soft tissue injury Right shoulder - soft tissue injury Abdomen - soft tissue injury Lumbar spine - soft tissue injury

The review panel's decision and statement of reasons

The plaintiff applied for review of the Medical Assessor's decision, pursuant to s 7.26 of the Act, claiming that the assessor had failed to have regard to the defendant's post-accident conduct, and that the assessor failed to give proper reasons.
The review panel published detailed reasons for its decision. The review panel first set out the relevant statutory provisions, and also at [16] noted the test for causation of injuries, as discussed by Wright J in Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 at [35] ("Briggs").
The review panel then referred to the Medical Assessor's certificate at [17]-[27]. In recounting the review procedure at [28]-[34], the review panel noted that "the review is by way of a new assessment of all matters with which the medical assessment is concerned".
The review panel summarised the evidence before it, which included police and ambulance records, hospital admission records, the report of Dr Tisch dated 16 November 2018 and other treating medical records.
The review panel reproduced at [38] the police report Event Ref NO E69832865 which records the following: At about 3.20am on Sunday, 7 October 2018 VEH 2 was travelling southbound in lane 4 of 5 on York St, Sydney. When VEH 2 was passing the intersection of York St and Jamison St, VEH 1 which was also travelling southbound on York St, behind VEH 2, collided with the rear of VEH 2 and then mounted the western sidewalk of York St and collided with a tree approximately 10 metres south of Jamison St. As a result of the collision, the vehicle received the above listed damage. It is currently unclear how the front of VEH 2 was damaged. DRIVER 1 and another passenger fled from the scene, running westbound in Jamison St. One passenger remained in the vehicle. The collision was witnessed by WIT 1 and WIT 2. WIT 1, who was concerned for the welfare of the passenger, broke the front passenger side window of VEH 1, which the passenger climbed out of. Both vehicles were then towed from the scene.
The review panel quoted at [40] the record of interview which Constable Giblin provided to an investigator retained by the plaintiff which included the following statement of a witness at the scene: I ran to the scene and went up to the grey car. I heard a person banging on the window who appeared to be trying to get out of the vehicle. I tried yanking open the door but it would not open. I heard a hissing sound coming from the bonnet area of the vehicle and thought the car might explode or catch on fire so I smashed the passenger side front window. An Asian male wearing a grey hoodie and red shoes crawled out through the smashed window. The male was holding his shoulder in pain. He was saying, "I love my girlfriend so much" and appeared to have erratic behaviour and was mumbling other random sentences. I believe this male may have been intoxicated. … I turned around and could see that the male from the grey car was inside the driver's seat of the white car and possibly trying to drive away. The door was open and I could see him playing around with the gear stick. The male got out and ran to the middle road [sic] and was walking in circles and became aggressive, yelling.
At [41]-[44] of the review panel's decision, further parts of Constable Giblin's account given to the insurance investigator were reproduced, including the following: … [the defendant] was standing in the middle of the road and witnesses identified him. We were also told that people were brawling which wasn't in fact the case but it was quite a chaotic scene at the time. We asked him to get off … we said, "Come onto the footpath". He was behaving erratically. Said, "No" while cars would be driving quite close to him. So, I led him by his left side to try and get him onto the road and he shrugged me off. So, I pulled him onto the road. He said, "Is that all you've got?" and, started kicking and thrashing and trying to push away. So, we restrained him on the ground at which point he started beating his head onto the ground saying, "Let me help you. Let me help you." Quite forcefully and repeatedly. A bystander then held his head to the ground, however he - to prevent him from beating his head on the ground. However, he continued to do so. … … it all happened so quickly when we arrived but I don't believe he had any head injuries that I could see prior to him beating his head on the ground. He had to be heavily sedated by paramedics, so I believed that he was drug affected at the time as well. His eyes were rolling into the back of his head. He was frothing at the mouth. I was very worried for him, so were the ambos. …given the force that he was hitting his head on the ground I would say that the injury that I saw was sustained during that because he - it was done repeatedly at least a dozen times.
The review panel reproduced the ambulance report at [45] which included: C/T 29 YOM high speed MVA Police state based on damage possibly travelling 100+ km/hr. O/A 3x police officers holding Pt prone to ground. Pt highly agitated, uncooperative, foaming at the mouth? Drug affected? … Either driver or back seat passenger of vehicle airbags deployed and significant damage to vehicle. Difficulty with initial assessment due to Pt positioning and agitation. Pt given 10mg Droperidol with good effect … H2T - Haematoma and bleeding to R forehead, seatbelt trauma/bruising …
The review panel stated at [46] that "Droperidol is a butyrophenone used in acute care settings for a variety of purposes, including the rapid sedation of patients with agitation, aggression or who are exhibiting violent behaviour …".
The review panel recounted the plaintiff's submissions at [84]-[95], which included that "Medical Assessor Cameron was not aware that by the time the ambulance arrived the claimant was restrained against the ground and had repeatedly struck his head against the floor out of his own volition": at [88]. The plaintiff submitted that Medical Assessor Cameron "failed to address any of the evidence of the claimant's self-inflicted head trauma", therefore "it is necessary to determine whether the claimant solely suffered a brain injury in the accident, whether he solely suffered a brain injury due to the self-inflicted head strikes or whether there was a brain injury in the crash as well as self-inflicted head strikes": [89] and [91]. The review panel referred to the plaintiff's specific submissions as to causation at (1)-(10) of [92]. In (6), the plaintiff had submitted: There is no evidence of seizures until at least after the self-inflicted head-strikes. Based on the Ambulance report, the seizure like activity occurred only after the administration of Droperidol as the seizure like activity occurred en route to the Hospital and required the removal of the C-Collar.
The review panel noted at [94] that the plaintiff submitted that "there is no evidence to suggest that the claimant's head was impacted during the collision", that he was a rear passenger wearing a seat belt at the time of the collision, and that Constable Giblin did not note any signs of head injuries prior to his self-inflicted head strikes. The review panel stated at [95] that the plaintiff "submits the head injury and related symptoms was [sic] not causally related to the accident but was self-inflicted by the [defendant]".
After detailing the defendant's submissions, the review panel referred to the defendant's assessment by Medical Assessor Tai-Tak Wan on 17 July 2023, his personal and social history and the "[h]istory of the accident". At [115]-[116], the review panel recounted what was said by the defendant to Medical Assessor Wan. Paragraph [116] is as follows: When asked what he last remembered before he lost consciousness, [the defendant] refused to give any answer. When asked to nominate the first thing he could remember after he regained consciousness, he again refused to give him an answer, but agreed that he woke up in the hospital and found nurses helping him. He said he was not the driver, but he could not remember who the driver was. He admitted he might have taken some drugs that night, but he could not give further details.
The review panel referred to the defendant's mental state screening test and considered that he did not give his best effort in doing the test. The review panel considered that, whilst his abstract thinking and executive function were impaired, it was "most likely due to inadequate effort or the existence of a psychological condition, such as severe depression, as the pattern of difficulties is different from what would be expected in a mild to moderate traumatic brain injury": [140].
In relation to the claimed head injury, the review panel concluded (at [167]-[168]): There is no evidence of a moderate or severe head injury. The MRI brain, CT brain scan and CT angiography were all normal … There was unspecific duration of loss of consciousness reported, but when police saw him, he was conscious although he appeared to be confused or agitated. However, there was evidence the claimant had taken benzodiazepine, cocaine and cannabis (urine test) and probably also alcohol, noting the ambulance reported the smell of alcohol so that presentation may have been drug related. However, the panel is satisfied, on the balance of probabilities that Mr Le sustained a mild traumatic brain injury (TBI) noting the GCS and the seizure activity observed but also considering the normal CT scan, MRI scan, and short PTA duration.
After noting that there was a dispute as to causation of the closed head injury, the review panel, having regard to the comments of Wright J Briggs, considered it was appropriate to apply the test of causation set out in Part 6 of the Guidelines. The review panel stated at [170] that in Briggs "Wright J also reminded us the relevant legal test in relation to causation does not require scientific certainty". The review panel cited what was said by his Honour at [70]-[72]. In concluding that the accident did materially contribute to the traumatic brain injury, the review panel said: [171] The Panel notes not only was the claimant involved in the accident, but he was also under the influence of drugs and following the accident was seen to repeatedly strike his head upon the ground. The Panel refers to the opinion of Dr Tisch who concluded several factors contributed to the seizures, namely the likelihood of a closed head injury arising from the accident and the effects of the stimulant drugs. However, although Dr Tisch was aware that Mr Le was agitated and uncooperative at the scene, he was apparently unaware he had struck his head repeatedly on the ground. [172] It is clear from Briggs that the principles of causation of injury set out on Part 6 of the Guidelines as they apply to permanent impairment also apply to the assessment of threshold injury. The question, therefore, to be considered is whether the traumatic brain injury was caused or materially contributed to by the accident. It is also noted the accident does not have to be the sole cause as long as it is a contributing cause which is more than negligible. [173] Considering the accident occurred at high speed, estimated to be 100kmph and Mr Le had to extricate himself from the vehicle through a window with the help of a bystander the Panel is satisfied that the accident was a more than negligible cause of the head injury. Further, where there is no evidence to establish, notwithstanding the presence of drugs in his body, that he was agitated prior to the accident, the Panel finds the claimant's agitation and conduct in striking his head on the ground was due to the impact of the accident in addition to the presence of stimulant drugs in his body. The Panel finds on the balance of probabilities that the accident contributed to the claimant's agitation following the accident. The Panel is satisfied, on the balance of probabilities, the accident materially contributed to the TBI, in that it was a contributing cause which was more than negligible.
The review panel went on to say at [174] that it was less confident about the seizure. The review panel stated that it had some doubt as to whether the defendant "even suffered a seizure". The review panel noted that the seizure "reportedly occurred when the [defendant] was being transported to hospital. However, when the [defendant] was assessed by a neurologist at the hospital no signs of seizure activity were apparent". The review panel stated at [176]-[177]: Even if the [defendant] had sustained a seizure the Panel is not satisfied on the balance of probabilities the accident was a contributing factor. The Panel believes any seizure, if it occurred, was most likely drug related, probably due to the adverse effects of Droperidol as it is well known to cause dystonic reaction, uncontrolled repetitive body movements, stiffness, spasm, shaking, loss of balance and even seizure, or due to drug withdrawal, given it is clear from the hospital records the claimant was under the influence of drugs. However, the Panel, after considering and balancing the possibilities, finds the accident was a contributing factor which was more than negligible to the head injury-mild traumatic brain injury. A traumatic brain injury is not a threshold injury as it affected the brain, therefore the head injury, even if it is mild, is not a threshold injury.

Relevant legislative provisions

Civil Liability Act 2002 (NSW): 5D General principles (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Motor Accident Injuries Act 2017 (NSW): 7.23 Status of medical assessments (cf s 61 MACA) (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) The certificate is, in any court proceedings or in any proceedings in connection with a merit review under Division 7.4 or a claims assessment under Division 7.6 - (a) prima facie evidence of any matter certified as to the degree of impairment of earning capacity of the injured person as a result of the injury concerned, and (b) conclusive evidence of any other matter certified. (3) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. … (7) 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. 7.26 Review of medical assessment by review panel (cf s 63 MACA) (1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division 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 be made only on the grounds that the assessment was incorrect in a material respect. (3) A medical assessment may not be referred for review under this section on more than one occasion. (4) If a medical assessment under this Division 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) (a combined certificate assessment), 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. (5) The President is to arrange for the medical assessment 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. (5A) The panel is to be constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission. (6) The review of a medical assessment is not limited to a review of only 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. (6A) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members. (7) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. (8) If on the review of a medical assessment of a single medical assessor on which a combined certificate assessment is based a new certificate is issued by the review panel, the review panel is also to issue a new combined certificate to take account of the results of the review. (9) Section 7.23 (Status of medical assessments) applies to any new certificate or new combined certificate issued under this section. (10) An application under this section must be made within - (a) 28 days after the parties to the medical dispute were issued with the original certificate for the medical assessment for which the review is sought, or (b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.
State Insurance Regulatory Authority - Motor Accident Guidelines: 6.5 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 the Personal Injury Commission) in considering such issues. 6.6 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: The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 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. 6.7 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.

A summary of the grounds of review

The plaintiff raises four grounds of review in relation to the decision of the review panel. Those errors, shortly stated, are said to be: firstly, that the review panel reversed the onus of proof; secondly (which is part of the first ground of appeal), the review panel failed to apply the lawful test of causation; thirdly, that the review panel "failed to expose its actual path of reasoning" (ground 2); fourthly, the review panel made a finding when there was no evidence to support that finding (ground 3); and fifthly, the review panel "failed to respond to a substantial and clearly articulated argument" (ground 4).
In oral submissions, Ms Gumbert accepted that the first 160 paragraphs of the review panel's statement of reasons were "by and large" very good but submitted that the review panel had fallen at the "last hurdle" which was when it came to "actually making" the decision with respect to causation. [2]

Ground 1: the review panel reversed the onus of proof; the review panel failed to apply the lawful test of causation

The plaintiff's complaint of the reversal of the onus of proof focuses on [173] of the review panel's reasons in which the following appears: Further, where there is no evidence to establish, notwithstanding the presence of drugs in his body, that he was agitated prior to the accident, the Panel finds the claimant's agitation and conduct in striking his head on the ground was due to the impact of the accident in addition to the presence of stimulant drugs in his body.
The plaintiff contended that the review panel incorrectly reversed the onus of proof by relying on the finding that "there is no evidence to establish" that the plaintiff was agitated prior to the accident as forming the basis for the conclusion that the agitation and head-striking was caused by the accident. The plaintiff cited Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67 ("Allianz Australia") in which the plaintiff submitted a similar error occurred.
The plaintiff contended that the review panel failed to apply the lawful test of causation in accordance with Part 6 of the Motor Accident Guidelines, reproduced at [39] above ("the Guidelines"). The plaintiff submitted that the review panel was also required to conduct the assessment of causation in accordance with ss 5D and 5E of the Civil Liability Act (reproduced at [37] above).
Mr Romaniuk, Senior Counsel for the defendant, submitted that the review panel was clearly aware of the test of causation explained by Wright J in Briggs. He submitted that the review panel's reasoning was "perfectly acceptable": there was no reversal of onus and the paragraph in the reasoning was "a statement of the evidence before them". [3]

Consideration

The review panel was plainly aware of how the question of causation of injuries was to be determined. The review panel quoted at [16] what was stated by Wright J in Briggs at [35]. Furthermore, after referring to the dispute as to causation of the closed head injury at [169], the review panel had "regard to the comments of Wright J in Briggs" and considered it was appropriate "to apply the test as to causation set out in Part 6 of the Guidelines". When referring once again to Briggs at [170], the review panel stated that it was reminded by Wright J "that the relevant legal test in relation to causation does not require certainty." The review panel then quoted what was said by Wright J in [70]-[72].
Prior to referring to the absence of evidence to establish agitation in [173], the review panel said in the same paragraph: Considering the accident occurred at high speed, estimated to be 100kmph and [the defendant] had to extricate himself from the vehicle through a window with the help of a bystander the Panel is satisfied that the accident was a more than negligible cause of the head injury.
The decision in Allianz Australia does not assist the plaintiff. In that case, Hoeben CJ at CL drew a distinction between the approach of the review panel in relation to the right shoulder injury and to the low back injury. In relation to the right shoulder injury, his Honour concluded at [36] that the onus of proof had been reversed but that was not the case in respect of the low back injury. His Honour said at [38]-[39]: This is not so in relation to the low back injury. The Review Panel's initial finding (which was open to it) was that there was "sufficient contemporaneous evidence" supporting a causal connection between the injury to the low back and the motor accident. The Review Panel confirmed this positive finding when it had regard to the pre-existing degenerative changes but disregarded them. It was only after that positive finding had been made that the Review Panel considered whether there was evidence of any other significant contributing causes. That approach does not reverse the onus of proof and is an acceptable mode of reasoning towards a causation finding. It is consistent with the MAA Permanent Impairment Guidelines and the Common Law as to causation. Accordingly, the plaintiff has not made out its causation challenge to the Review Panel's finding in relation to the low back.
In the present case, the review panel's initial finding was that the accident occurred at a high speed estimated to be 100km/h and the defendant having to extricate himself through a window supported a causal connection between the head injury and the accident. It was only after the review panel made this finding that the review panel referred to the absence of evidence of the defendant being agitated prior to the accident.
When the review panel referred to the absence of evidence, the review panel was making a statement of the available evidence before it. The review panel did not reverse the onus of proof.
In written submissions in reply, the plaintiff raised Insurance Australia Limited trading as NRMA Insurance v Trkulija [2023] NSWSC 956 as another decision which was said to support the contention that the onus of proof had been reversed. In that case, the review panel's reasons considered by Chen J at [77] and [84] were very different to the present case and do not assist the plaintiff's contention.
The plaintiff has not established ground 1.

Ground 2: the review panel failed to expose its actual path of reasoning

The plaintiff submitted that the review panel failed to expose its path of reasoning in relation to critical aspects of how it came to determine the causation of the injury, which included how the defendant sustained a brain injury in the accident. The plaintiff contended that it was not possible to discern how or why the review panel concluded that the defendant sustained a traumatic brain injury as a result of the accident. The plaintiff complained that the actual path of reasoning was not exposed and there were unexplained gaps in the reasoning which could not be filled by necessary inference. The plaintiff submitted that the failure to disclose the path of reasoning was an error of law on the face of the record.
Ms Gumbert referred to inconsistent reasoning by the review panel at [168] and at [176]. Ms Gumbert submitted that at [168] the review panel was satisfied that the defendant had sustained a mild traumatic brain injury "noting the GCS and the seizure activity" but later stated at [176] that if there was a seizure, the accident was not a contributing factor. The plaintiff contended that this was internally inconsistent reasoning, constituting error of law on the face of the record.
The defendant submitted that the review panel's causation finding, as explained by it, represents an orthodox outcome of the application of factual causation. The defendant pointed out that his case was that he had been involved in a high-speed motor vehicle accident that caused a head injury. On the facts of the collision, the defendant's case was sustainable in a causal pathway determined on the balance of probabilities. It was the plaintiff which was advancing an alternative causal pathway. The defendant argued that the statements at [173] reflect "the review panel exposing its reasoning to the deliberations of its path of reasons on the causation dispute between the parties". [4]
In oral submissions, Mr Romaniuk said there was no inconsistency between [168] and [174]. He said that the review panel was at [168] examining the defendant's condition and complaints. This was said to be "the diagnosis point rather than the causation point". [5]

Consideration

In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot"), French CJ, Crennan, Bell, Gageler and Keane JJ held at [47]: The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. (Footnotes omitted.)
The High Court said further at [55]: The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. 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, that 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.
As may be seen in the summary of the statement of reasons at [21]-[36], the review panel set out in considerable detail all of the evidence relating to the accident. The review panel's reasons reveal a step-by-step approach to the task before it. The review panel was well-apprised of the plaintiff's submissions as to a lack of a causal connection between the head injury and the accident. In reaching its decision, the review panel was entitled to have regard to the high speed at which the vehicle was travelling; that it collided with the rear of another vehicle; mounted the footpath; and collided with a tree. The review panel was also entitled to have regard to the defendant extricating himself from the vehicle which had been significantly damaged, and his state of agitation.
In accordance with its function and the requirement in Wingfoot at [55], I am of the opinion that the review panel's reasons for its decision explains the path of its reasoning in sufficient detail to enable a court to see whether the opinion did or did not involve an error of law. The review panel was not required to explain how it came to its decision by reference to the competing contentions of the parties: Wingfoot at [47].
There is no inconsistency in the review panel's reasoning at [168] and [176]. The review panel noted at [168] "the seizure activity observed". The review panel was referring to the observations of an ambulance officer recorded in the ambulance report that "en route to SVH [the patient] proceeded to have seizure like activity". The review panel's doubt at [174] as to whether the defendant "even suffered a seizure" and if he did was "not satisfied on the balance of probabilities the accident was not a contributing factor" did not mean the review panel could not take into account "the seizure activity observed" by the ambulance officer as a factor in reaching its conclusion on the balance of probabilities that the defendant sustained a mild traumatic brain injury as a result of the accident.
The plaintiff has not established ground 2.

Ground 3: no evidence to support the finding

The plaintiff submitted that the review panel did not identify any evidence that could logically support a finding that the defendant sustained a head injury or traumatic brain injury as a result of the accident. The plaintiff referred to its submissions to the review panel.
The plaintiff cited Insurance Limited t/as NRMA v Richards [2023] NSWSC 909 ("Richards") and Swain v Waverly Municipal Council (2005) 220 CLR 577; [2005] HCA 4. The plaintiff submitted that making a finding that there was a traumatic brain injury sustained in the accident when there was no evidence to support that finding was a jurisdictional error.
Mr Romaniuk referred to the factual aspects of the case which included the substantial impact of the vehicle with the tree. He pointed out that the police and ambulance officers did not attend the scene of the accident for some minutes after it had happened. By that point, Mr Romaniuk said, the defendant had been extricated from the vehicle because a witness had thought the vehicle might explode or burn, and was found in an agitated state.

Consideration

It is well-established that factual findings must be supported by logically probative evidence. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, Deane J said at 367: When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
As Schmidt AJ observed in Richards at [121]-[122], there must be a factual basis for findings and they cannot rest "simply on a consideration of possibilities".
The plaintiff correctly submitted the test is not whether there was any evidence at all, but rather whether there was no evidence that ought reasonably to satisfy the decision maker that the fact sought to be proved is established: Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 per McHugh J at [39]; Origin Energy LPG Ltd v Bestcare Foods Ltd [2013] NSWCA 90 per Ward JA at [88]-[90].
Before reaching its decision, the review panel was obliged to consider all of the evidence which included Constable Giblin's statement of the defendant hitting his head on the ground which was done at least a dozen times and that the Constable did not see any visible head injuries prior to that happening. There was also the evidence of the defendant wearing a seat belt at the time of the collision and being under the influence of drugs.
The weight to be given to Constable Giblin's statement was a matter for the review panel, which was not required to state what it made of that evidence: Wingfoot at [47].
The defendant was unable to give an account of the accident. He told Dr Tisch that he was a rear seat passenger but did not disclose anything further about the accident. His diagnoses included amnesia.
The review panel was plainly aware of all the evidence before it. The review panel based its findings that the accident was a contributing cause of the head injury which was more than negligible on: 1. The accident occurring at high speed estimated to be 100km/h. There was evidence as I have previously stated, that the vehicle collided with the rear of another vehicle, mounted the footpath and collided with a tree; 2. The defendant had to extricate himself from the vehicle through a window with the help of a bystander. There was evidence that the defendant had been a passenger in the rear seat of the vehicle. The bystander heard the defendant banging on the window trying to get out of the damaged vehicle. The bystander smashed the passenger side front window through which the defendant crawled out. The bystander saw the defendant holding his shoulder in pain; and 3. There was no evidence that, notwithstanding the presence of drugs, the defendant was agitated prior to the accident. The bystander referred to the defendant's erratic behaviour as did Constable Giblin. Constable Giblin made mention of the defendant kicking and thrashing and trying to push him away. All of this occurred before the defendant beat his head on the ground.
The review panel found that the defendant's agitation and conduct in striking his head on the ground was due to the impact of the accident in addition to the presence of stimulant drugs in his body.
Viewing the evidence in combination, it was reasonably open to the review panel to reach the conclusion that the accident was a contributing cause of the head injury which was more than negligible.
The plaintiff has not established ground 3.

Ground 4: the failure to respond to a substantial and clearly articulated argument

The plaintiff submitted that it had clearly put causation of the head/brain injury in issue in its submissions. More specifically, the plaintiff pointed out that it had raised three possibilities as to how any head/brain injury had been caused and contended that it was necessary for the review panel to undertake the task of determining which was the cause.
It was the plaintiff's contention that by failing to respond to the argument, the review panel denied procedural fairness and constructively failed to exercise its jurisdiction.
The plaintiff cited Rodger v De Gelder and Others [2015] NSWCA 211 ("De Gelder") at [95] and [108]-[109] in which the review panel had failed to respond to a substantial argument and the Court of Appeal held that amounted to jurisdictional error.
Mr Romaniuk referred to clauses 6.5 to 6.7 of the Guidelines and argued that none of the three questions posed by the plaintiff in its submissions was the legal test to be applied. Senior Counsel contended that a demand to answer causal questions that are not correctly stated, does not lay the foundation for a complaint because the review panel would have misdirected itself in answering those questions.

Consideration

The plaintiff's contention relies upon the review panel's failure to determine three possibilities raised in its written submissions. Those possibilities were "whether the claimant solely suffered a brain injury in the accident, whether he solely suffered a brain injury due to the self-inflicted head strikes or whether there was a brain injury in the crash as well as self-inflicted head strikes": review panel's reasons at [91].
In De Gelder, Gleeson JA (with whom Macfarlan and Leeming JJA agreed) said at [93]: Where a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice, that is, procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088. In such a case the concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). It is well accepted that with respect to the MAC Act, procedural fairness applies to a review panel exercising powers under s 63: McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; 71 NSWLR 609 at [8] (Allsop P). The particular content of this requirement will depend upon the facts and circumstances of the particular case: Trazivuk v Motor Accidents Authority (NSW) at [28]; Frost v Kourouche at [2] and [41].
In Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 ("Keen"), Leeming JA (with whom Basten JA and Simpson AJA agreed) drew a distinction between a court's task and that of an assessor. Leeming JA said at [39]-[40]: A court's task is to resolve justiciable controversies, constituted by the parties' competing claims. A court should address substantial and clearly articulated submissions, not least because there is a danger that the entirety of the dispute will not be resolved if some substantial submission is not addressed. A court may not need to resolve every issue, but it should make it clear why the submissions it has resolved are dispositive of the case and ideally why it is unnecessary to determine other submissions which have been advanced by the parties unless they are patently insubstantial. The function of the assessor is quite different. The assessor was obliged following the referral by SIRA to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. As the High Court emphasised, speaking of the decisions of medical panels under the Accident Compensation Act 1985 (Vic) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the Medical Panel was not required to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions: "The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.".
In that case, the Court rejected the insurer's argument that the medical assessor's failure to respond to what was said to be a substantial argument that went to causation amounted to a denial of procedural fairness or alternatively, a constructive failure to exercise jurisdiction. Leeming JA said at [45]: … His Honour was correct at [119] to place emphasis on the passage at Wingfoot at [47] that it was not the function of a medical assessor to adjudicate or arbitrate between competing opinions.
Whilst it may be doubted that in accordance with the Court of Appeal's reasons in Keen the review panel was obliged to answer the plaintiff's possibilities, the plaintiff's contention may be rejected on another basis.
I am not persuaded that the three possibilities raise a "substantial argument". As Basten JA explained in Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156 ("Milton") at [9], "a substantial argument means one which is clearly material or undoubted relevance". The determination of what is a material or relevant consideration is to be identified by reference to the "constituting statute (or any other source of jurisdiction) and not primarily, by reference to the submissions of a party": Milton at [10]-[11].
The scope of the statutory functions of a review of medical assessments by the review panel are found in s 7.26 of the Act (reproduced at [38] above) for which guidance is provided in the Guidelines.
The review panel's task was to determine whether the head injury was caused or materially contributed to by the accident. The guidance provided by cl 6.7 of the Guidelines provided that the accident did not have to be the sole cause "as long as it is a contributing cause, which was more than negligible". The review panel undertook its task in accordance with the Guidelines and s 5D of the Civil Liability Act 2002 (NSW).
The plaintiff's three possibilities raised matters of fact which the review panel was under no legal obligation to answer. These possibilities were part of the plaintiff's submission to the review panel that the head injury and related symptoms were not causally related to the accident but were self-inflicted. This was the plaintiff's substantial argument which the review panel responded to in its statement of reasons.
The review panel's failure to specifically answer the three possibilities in its statement of reasons does not amount to a failure to accord natural justice and jurisdictional error.
The plaintiff has not established ground 4.

Conclusion

Given that none of the grounds raised by the plaintiff have been made good, the summons seeking judicial review must be dismissed. I make the following orders: 1. Order that the summons filed 24 November 2023 be dismissed. 2. Order that the plaintiff pay the first defendant's costs in this Court.

Endnotes

Tcpt, 2 August 2024, p 2(19-20).
Tcpt, 2 August 2024, p 3(6-8).
Tcpt, 2 August 2024, p 14(35-36).
Defendant's Written Submissions, Dated 16 July 2024, at [29].
Tcpt, 2 August 2024, p 15(30-31). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2024

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