QBE Insurance (Australia) Ltd v Griffin

Supreme Court of NSW|2021-07-21|Before: Schmidt AJ, Ms J

Solicitors: Moray & Agnew (Plaintiff) CMC Lawyers (First Defendant) Crown Solicitors (Second Defendant) File Number(s): 2021/51837

Judgment

QBE seeks orders setting aside a damages assessment and certificate issued to Ms Griffin in December 2020 under s 94 of the Motor Accidents Compensation Act 1999 (NSW), after a motor vehicle accident on 23 February 2016 when her vehicle was rear-ended, without warning, by the vehicle behind. QBE was the CTP insurer of the vehicle at fault and had accepted liability for Ms Griffin's claim.
Ms Griffin had earlier had surgery on her shoulder after an accident in 2012, when she fell. In issue before the claims assessor was whether the 2016 accident had been causally connected with the shoulder replacement surgery which Ms Griffin underwent afterwards; and if it had been, what discount should result for vicissitudes. That turned on disagreements between the medical experts, Ms Griffin's evidence not being challenged by QBE.
The assessor's conclusions that the necessary causal connection had been established and that it was not possible to determine precisely when, but for the accident, that Ms Griffin would have required a shoulder replacement were not challenged. The conclusion that there should be a 25% discount for vicissitudes, was.

What was required

There is no issue that in the reasons given by an administrative decision maker such as the assessor, the actual path of reasoning which led to the conclusion reached must be disclosed: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] applied in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [34]. This was reflected in Guideline 18.4 of the Motor Accidents Claims Assessment Guidelines, which were issued under s 69 of the Act and given force by s 106.
In Zahed it was explained at [9] that reasons given need not be long; a single sentence may suffice; but that an explanation needs to be given for why an assessor disagrees with aspects of a practitioner's opinions. Saying merely that "all of the conflicting evidence was taken into account", is also insufficient.
In this case the assessor did considerably more than that. The statutory obligation was to give brief reasons for the decision. The assessor provided a 41-page decision, but on QBE's case the conclusion that there should be a 25% discount for vicissitudes was still not adequately explained, as it had to be.
That was in issue.
In resolving this it must be remembered that administrative decisions such as the one here in question are meant to inform and thus may not be scrutinised by "over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272. They must also be fairly read as a whole: D'Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 at [68].
As Johnson J explained in Zurich Australia Insurance Limited v Drca and Ors [2018] NSWSC 1945, in approaching a claim of error of law concerning sufficiency of reasons under the Act a practical approach must be taken, bearing in mind the statutory requirement of brevity in the reasons given: s 94(5) and 18.4.3 of the Guidelines. While the "actual path of reasoning" should be apparent, that can be achieved by incorporating by reference a source document, such as an expert report: at [74]-[77].

The parties' cases

Before the assessor QBE's case was advanced on Dr Duckworth's opinion that the accident had not contributed to Ms Griffin's need for the surgery and that it was inevitable in the very short term, that she would require a shoulder replacement. In the result a discount for vicissitudes of 100% should have followed. The assessor did not accept Dr Duckworth's opinions, for which no reasons were given, and whose opinions conflicted with those of other experts.
While QBE accepted that that was open to the assessor on all of the evidence, it complained that the assessor's reasons did not disclose the path of reasoning which had led him to the conclusion that the discount for vicissitudes should be only 25%. Further, that parts of the reasons which were given were inconsistent with earlier parts of the reasons and the evidence there accepted; and that the assessor had erred in describing Ms Griffin to have been "asymptomatic" before the accident.
QBE contended that the assessor thus fell into error of the kind dealt with in IAG Limited v Sleiman [2017] NSWSC 1346; and Drca.
In Sleiman it was concluded that the "unexplained leap to a future earning capacity of nearly double the first defendant's demonstrated capacity over the years for which figures were available" would deliver Mr Sleiman "not compensation for lost capacity but a very considerable windfall": at [29]. In Drca adoption of figures put forward on his behalf by counsel, without any real explanation or elaboration, which noted wages earned by a nominated comparable worker and resulted in an acceptance of the complete claim for past economic loss, did not satisfy the obligation to give reasons, that establishing error on the face of the record: at [79]-[80].
By analogy, IAG Limited v Priestly [2019] NSWSC 1185, where it was concluded that the assessor had failed to provide a necessary explanation of why he was unable to make an evidenced based calculation or estimate of economic loss and so awarded a buffer, was also relied on by QBE: at [35]-[36].
Ms Griffin's case was that on the assessor's reasons being read as a whole, it would be accepted that the assessor had not only adequately explained the competing opinions he had to consider, but also why he had not accepted Dr Duckworth's opinion that Ms Griffin would have required surgery within 6 to 12 months, having accepted her evidence; taken into account the evidence of the treating surgeon Dr Osborne; the opinion of Dr Bodel that it was impossible to say when such surgery would have been required, but it could have been in 3-5 years; and accepting the opinion of Dr Buckley, that such surgery would not have been required, but for an intervening trigger, which the accident had been.
On that evidence it was open to conclude that it was impossible to determine when Ms Griffin would have required shoulder surgery, but for the accident, which was not challenged by QBE.
Having determined that it was not possible to determine, with precision when Ms Griffin would have required shoulder surgery, but for the accident, the assessor had to undertake an estimation of the likelihood of possible future events, in arriving at the discount for vicissitudes.
The reasons given for arriving at a 25% discount satisfied the obligation to disclose the path of reasoning which led to that conclusion, which could not in these proceedings be reviewed on its merits, the assessor plainly not having concluded that the surgery was likely to have been required in the 3-5 year timeframe Dr Bodel referred to.

The reasons given

In the reasons given the assessor identified the scope of what was in issue, before turning to the medical treatment which Ms Griffin had received. He observed that in 2012 she had been treated by Dr Osborne after she had fractured the neck of her humerus on the left, which had been treated with an intradmedullary nail, which had given her a good outcome.
In Cessnock Hospital after the accident on 23 February 2016, when her left shoulder was X-rayed, Dr McDougall made a comparison with a 2013 X-ray, finding that there had been a complete collapse of the humeral head with extension of the scars through to the joint space, with some probable destruction of the upper glenoid, which did not appear to be acute and may have been present in 2015, although that X-ray was not clear. There was then no acute fracture and extensive bony irregularity of the underside of the acromion.
On 24 February Ms Griffin's GP again referred her to Dr Osborne because of her pain and limitation of movement. In 2013 when Dr Osborne had examined her, Ms Griffin was reporting no pain, could elevate forward to 140 degrees and internally rotate to her thoracolumbar junction. The history which she gave Dr Osborne in March 2016 was that before the accident she had been doing well with her shoulder, which had good functionality, but that she had difficulties lifting anything in an overhead or heavy manner at work.
Ms Griffin then described suffering a dramatic loss of function after the accident, with increased pain and an inability to actively forward elevate; to lay on her left shoulder at night; to perform overhead lifting; and requiring help to dress. Physical examination showed her glenohumeral external rotation to be 20 degrees, abduction 220 degrees and forward extension 240 degrees. The X-ray showed the collapse of the humeral head, penetration of the screws and wear of the superior glenoid.
Dr Osborne concluded that Ms Griffin had suffered a marked deterioration in the shoulder as a result of the accident; that she had lost the contour of the head; needed the screws and nails to be removed; and that pain free range of motion could only be restored by a shoulder replacement. That was likely to be a reverse replacement because it was unlikely that her rotator cuff would be working normally.
Dr Osborne performed the surgery in June 2016, with good results and Ms Griffin began physiotherapy in August,
The assessor then turned to the medico legal reports of Dr Buckley and Professor Ghabriel, which he explained and then to the reports of Dr Osborne, Dr Bodel and Dr Korber, a radiologist, before turning to the assessments of Assessor Best, who had concluded that Ms Griffin had suffered 17% whole person impairment as the result of the shoulder surgery.
The assessor next referred to the views reached by a Review Panel in February 2020, which concluded by majority that Ms Griffin had suffered a 5% whole person impairment for her cervical spine and 20% for the aggravation of her pre-existing shoulder injury.
The assessor then turned to the statements of Ms Griffin and her husband, which he summarised, as well as additional information which she had provided at the assessment conference. He next outlined the parties' submissions, before turning to his "consideration of the medical consequences of the accident".
There the assessor explained why he found Ms Griffin to have been credible and her statements truthful and factual. The assessor accepted as truthful and factual Ms Griffin's statements that: "The impact was quite forceful. I remembered being thrown around a bit by the impact. I saw Dr Torrado the day after … I was experiencing left shoulder pain. At that stage (25 February 2016 when Dr Alkhadhi referred her to Dr Osborne), I was continuing to experience more pain and stiffness in my left shoulder. The pain, discomfort and stiffness in my left shoulder became a lot worse immediately after the accident. My left arm and shoulder felt very weak. The range of movement and function of my left arm and shoulder was severely reduced after the accident."
After referring to relevant findings of the medical experts the assessor concluded that: "Given that I have accepted the claimant as an honest historian and her history that the traumatic loss of function with pain did not become apparent until shortly after the accident, I find on the balance of probabilities, that the accident and the forces involved with it did cause the acute injury which required the surgery."
The assessor then referred to Dr Duckworth's September 2016 opinion that Ms Griffin's condition was pre-existing, ongoing for the previous 3 years and would have occurred anyway, noting that he had not provided reasons for his opinion and that he had not been provided with her clinical records. The assessor accepted that Dr Korber was an experienced radiologist qualified to give his opinion that there was clear evidence of screw penetration as at 5 November 2015 and that there was deformity of the humeral head and avascular necrosis, before the accident.
Accepting Ms Griffin as truthful, however, the assessor found that her condition had been "asymptomatic" before the accident and concluded that the force of the accident may have caused further penetration of the screws, consistent with the symptoms which she experienced afterwards. In the result he found that the accident was a material, or more than negligible cause of the aggravation which she had suffered and the precipitation of significant pain and restriction of movement, which resulted in her requiring a reverse shoulder replacement.
The assessor also found that Dr Duckworth's view that the surgery was brought forward by 6-12 months to be speculative, noting Dr Buckley's view that there needed to be another event to bring Ms Griffin to surgery. He concluded: "187 A tortfeasor takes a Claimant as she is in terms of susceptibility for injury. The Claimant may well have had a pre-existing condition of avascular necrosis in the shoulder, however her pre-accident condition was asymptomatic and post-accident, the Claimant's condition became so severely symptomatic that she had significant pain and restriction which led her surgery. 188 I do not find that surgery was inevitable absent a trigger at least in the short to medium term but given the extent of the problem in the head of the humerus and the partial penetration, at least, of the screws prior to the accident as described by Dr Korber, and given the Claimant's susceptibility to injury (Dr Buckley) with a trigger (as was the accident), it appears likely that the Claimant would have come to surgery at some stage. I do not accept, however, the opinion of Dr Duckworth that it would have been in the very short term. It may well have been considerably longer and, without a trigger, her condition may well have remained asymptomatic for a considerable time - see the opinion of the treating shoulder surgeon and take that in conjunction with the history of the shoulder between 2012 and the subject accident, where the Claimant was not doing too badly at all. See also Dr Bodel - "3-5 years". 189 There is no precise evidence as to how soon the Claimant would have had to have surgery. In Malec v J.C. Hutton, the Court said at paragraph [7]: "But questions as to the future or hypothetical effect of physical injury of degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability." 190 As submitted by counsel for the Insurer at [33], In Seltsam Pty Limited v Ghaleb [2005] NSWCA 208, lpp JA said, at [103]: "Therefore, according to Malec: (a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring. (b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred. (c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring. (d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities." 191 The evidence does not allow me to assess with precision when the Claimant would, in any event, have come to the surgery without a trigger. In those circumstances, it is appropriate that I apply a discount of 25%."
Later, when dealing with future commercial care and equipment, the assessor returned to the discount for vicissitudes, observing: "263 I note that the Claimant's counsel has proposed a vicissitudes figure of 15% on the basis of the decision in ANZ v Haq [2016] NSWCA 93 at [50]. 264 I consider that the appropriate discount figure is 25% on the basis that the Claimant is subject to the prospect (estimated at 25%) of requiring the care, in any event, by reason of the prospect of the progression of avascular degeneration at some trigger event."
This was not challenged in these proceedings.
When dealing with non-economic loss the assessor returned to the dispute between the experts: "281 There is some dispute as to the extent of this condition which was caused by the accident and the extent of the pre-existing condition, it being opined by Dr Korber that imaging prior to the accident showed the screws already extending into the glenoid. 282 As a result of the exacerbation, the Claimant came to a reverse shoulder reconstruction. The Claimant's arm was in a sling for an extended period. She was required to have extensive rehabilitation, including physiotherapy, and she found it necessary to take 6 months off work, such was the extent of the pain and discomfort in the early period. 283 Dr Osborne has commented on the extent of the pain suffered by the Claimant in the early period. 284 It is clear that the Claimant did have a significant pre-existing condition of avascular necrosis and she was susceptible to further shoulder injury as a result of that condition. 285 Dr Duckworth has opined that the Claimant was at the end stage of the deterioration of her left shoulder and the accident only precipitated surgery which would have taken place in any event within 6-12 months. 286 Dr Buckley compares the Claimant's condition with a person who has Brittle Bone Syndrome and where an event may trigger a fracture. Duckworth, Dr Bodel, Dr Best, Dr Cameron and Dr Korber were all of the opinion that the Claimant would, in the future, have come to left shoulder replacement surgery, but only Dr Duckworth put it at the very short term. 287 The Insurer submits that any amount awarded should be reduced to reflect the inevitability that the Claimant would come to a further left shoulder replacement surgery and that an appropriate award for this head of damage should be limited at best to an amount reflective of some 12 months of pain and restrictions, and it suggests an amount of $10,000.00."
After referring to the authorities, including these which deal with how "the crumbling skull principle" should be applied to persons in Ms Griffin's position, discussed in State on New South Wales v Burton [2006] NSWCA 12 at [71]-[73], the assessor arrived at $185,000 economic loss, having taken into account all the matters he had discussed, including the pre-existing condition and the prospect of further surgery required in any event: at [294].
This was also not challenged on this application.

Were there inconsistencies in the reasons given which establish error on the face of the record?

This issue turned on the assessor's observation at [183], for example, that Ms Griffin had been accepted as truthful and that her condition was "asymptomatic" before the accident, while he had earlier explained her evidence to be that she had suffered discomfort and stiffness before the accident, which became worse afterwards: for example at [156].
QBE's case was that the reasons were thus afflicted with internally inconsistent reasoning, which materially affected the outcome of the decision. Ms Griffin contended that this did not reflect a fair reading of the reasons, as the authorities required, but a minute examination which looks for error.
It is apparent when the reasons are read as a whole, as they must be, that the assessor was not using the dictionary definition of the word "asymptomatic" when he used that term, given his acceptance of Ms Griffin's evidence. There was no issue about the credibility of her evidence, or about her symptoms before the accident.
It is relevant that not only did Ms Griffin and most experts refer to her suffering some symptoms before the accident, but that the assessor's use of that term reflected the way in which Dr Bodel had used it in his report. There Dr Bodel had noted the good outcome Ms Griffin had achieved after the original surgery and the dramatic loss of function and increase in pain which she suffered after the accident, reflected in Dr Osborne's reports.
Later when referring to Dr Duckworth's opinion that Ms Griffin would have required surgery within 6 to 12 months despite the accident, with which he disagreed, Dr Bodel considered that beforehand she had "an asymptomatic shoulder and although it was still stiff she was functioning normally in her part time work". Later he said she went from being asymptomatic, having some restriction of movement, to being severely symptomatic. Finally, Dr Bodel said that before the accident although painless, the shoulder was symptomatic with measurable restriction of movement.
Dr Bodel cannot thus sensibly be understood as suggesting in his report that Ms Griffin was truly "asymptomatic". He was drawing a distinction between the minimal symptoms which she was suffering before the accident and the severe symptoms, which necessitated the surgery, afterwards.
Dr Buckley in his report also referred to Ms Griffin suffering some symptoms before the surgery. While Dr Duckworth in his report referred to Ms Griffin having no symptoms before the accident, despite her deteriorating shoulder.
In the result I am satisfied that fairly read, as the whole of the assessor's reasons must be, the use of the term "asymptomatic" did not establish error or relevant inconsistencies. Before the assessor there was no issue about Ms Griffin's evidence or the medical reports which established that she had had a good outcome from the first surgery; at the time of the accident was not suffering pain and the symptoms which she was experiencing were so mild that they were not interfering with her capacity to work; and that afterwards her position was very markedly different, requiring a shoulder replacement.
I am satisfied that the orders here sought could not rest on this aspect of the assessor's reasons, given the obligation that they must not be approached with a view to finding error, as discussed in the authorities.
The use of the term "asymptomatic" did not render the decision bereft of evident and intelligible justification, given the evidence which arose to be considered and the issues which fell to the assessor to resolve, all of which he clearly understood and explained adequately, in the reasons given.

Were adequate reasons given for the conclusion that the discount for vicissitudes should be 25%?

The reasons given explain why the assessor concluded that he could not assess, with precision, when Ms Griffin would have come to the replacement surgery without a trigger, with the result that a discount for vicissitudes had to be arrived at, which he determined should be 25%.
There the assessor had explained that he:

rejected Dr Duckworth's opinion that the need for surgery was brought forward by the accident by 6 to 12 months;
found that Ms Griffin was susceptible to further injury, because of her pre-existing condition, which post-accident became so severely symptomatic that she had significant pain and restriction and required surgery;
accepted that such surgery was not inevitable, absent a trigger, at least in the short to medium term;
accepted Dr Buckley's opinion that Ms Griffin was susceptible to injury with a trigger like the accident;
found that Ms Griffin would have come to surgery at some stage, but not in the very short term, as Dr Duckworth had concluded;
concluded that that period may have been considerably longer;
considered that without a trigger Ms Griffin may have remained asymptomatic, that is suffering only those symptoms which she was experiencing before the accident, for a considerable time, given her history, Dr Osborne's opinions and position before the accident;
referred to Dr Bodel's opinion, which was that on the basis of her pathology and that she was asymptomatic before the accident, it was impossible to determine when Ms Griffin would have required shoulder replacement. It could have been as long as 3 - 5 years, in his view;
observed that there was no precise evidence as to how soon Ms Griffin would have had to have had the surgery, necessitating a Malec v Hutton assessment of probability, in order to adjust Ms Griffin's award of damages to reflect the degree of probability of surgery occurring, that requiring an evaluation of possibilities, as explained in Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [103], on which QBE relied; and
concluded that it not being possible to assess with precision when Ms Griffin would, in any event have come to surgery without a trigger, the discount for vicissitudes should be 25%, rather than the usual 15%.

The assessor could certainly have further explained why he did not accept Dr Bodel's view that Ms Griffin could have come to surgery within 3 to 5 years, as he plainly did not. The sentence "See also Dr Bodel - "3-5 years", at [188], did not reflect that this had been accepted, in arriving at the 25% discount. To the contrary, had it been accepted, the assessor would not have arrived at only a 25% discount for vicissitudes.
That is because the evidence was that Ms Griffin had a working life expectancy of 28 years at the time of the assessment. Acceptance of Dr Bodel's opinion that she would have required the surgery at the latest within 5 years, would thus logically have resulted in a larger discount than 25%.
The reference to Dr Bodel's opinion at [188] was part of the reason given for rejecting Dr Duckworth's opinion that surgery would have been required in the short term. It did not logically follow that the assessor was bound to accept Dr Bodel's view that surgery may have been required within 3-5 years, given the other opinions and evidence he had to take into account in arriving at a figure for vicissitudes.
Approaching the reasons given as they must be, without an eye for error and as a whole, including what he later said about vicissitudes in his reasons, it is apparent that having accepted Dr Buckley's opinion that without a trigger Ms Griffin would not have required the surgery, given her condition before the accident and Dr Osborne's evidence, the assessor approached the assessment of vicissitudes on the basis that without the accident her pre-existing condition could have continued for a considerable period. That conclusion was not consistent with an assessment of vicissitudes on the basis of Dr Bodel's view that surgery could have been required in 3-5 years.
What the assessor had to arrive at was an estimate of the likelihood of the possibility of a future event occurring, that is a shoulder replacement, it being impossible to determine when that would have been required, but for the accident: Seltsam 103.
In my view fairly read the reasons given thus did adequately explain the conclusion that there should be a 25% discount for vicissitudes.
That conclusion reflected that the possibility of Ms Griffin having required surgery without the accident, which was unlikely absent another such trigger, was likely to have arisen at a time considerably longer than would have resulted from an acceptance of Dr Bodel's view. That conclusion accorded with the assessor's acceptance of Dr Buckley's opinion, as was open, considered in the context of the evidence of Dr Osborne and that of Ms Griffin, corroborated as that was by Mr Griffin.
It follows that QBE did not establish, on the evidence, that the assessor's conclusion was legally unreasonable: Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18. Nor were the reasons, fairly read, inadequate. The merits of the decision not arising to be considered, it follows that the orders it seeks cannot be made

Costs

The usual orders under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. That is an order that QBE pay Mrs Griffin's costs, as agreed or assessed. Unless the parties approach to be heard within 7 days, that will be the Court's order.

Orders

For the reasons given I order that: 1. The application is dismissed 2. Unless the parties' approach to be heard within 7 days, QBE is to pay Ms Griffin's costs, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2021

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