Cruse v Review Panel Established under the Motor Vehicle (Lifetime Care & Support) Act 2006
[2012] NSWSC 507
•17 May 2012
Supreme Court
New South Wales
Medium Neutral Citation: Cruse v Review Panel Established under the Motor Vehicle (Lifetime Care & Support) Act 2006 [2012] NSWSC 507 Hearing dates: 27 April 2012 Decision date: 17 May 2012 Jurisdiction: Common Law Before: Schmidt J Decision: 1. The Review Panel's decision of 1 July 2011 is set aside
2. The matter is remitted to the Review Panel to determine according to law.
3. Unless the parties approach to be heard within 14 days, the third defendant is to pay the plaintiff's costs of the proceedings, as agreed or assessed.
Catchwords: APPEAL - orders seeking to set aside Review Panel determination and its decision to confirm the certificate issued by the Assessment Panel - order sought for matter to be remitted back to Review Panel - motor vehicle accident - amputations of both legs below the knee - eligibility criteria for participation in Lifetime Care and Support scheme - construction of applicable Guideline - whether or not below knee transtibial amputations were 'adjacent to or above the knee' - whether there was a failure to apply the criteria established by the Guideline - Review Panel erred - decision set aside - matter remitted to Review Panel Legislation Cited: Lifetime Care and Support Guidelines
Motor Accidents Compensation Act 1999
Motor Accidents (Lifetime Care and Support) Act 2006
Supreme Court Act 1970Cases Cited: Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881; (2009) 75 NSWLR 482
Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265
Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Residual Assco Group Limited v Spalvins [2000] HCA 33; (2000) 202 CLR 629
Rodger v De Gelder [2011] NSWCA 97
Thiering v Daly [2011] NSWSC 1345Category: Principal judgment Parties: Stephen Cruse (Plaintiff)
Review Panel established under the Motor Vehicle (Lifetime Care and Support) Act 2006 (First Defendant)
Lifetime Care and Support Authority (Second Defendant)
Insurance Australia Ltd t/as NRMA Insurance (Third Defendant)Representation: Counsel:
Mr RW Seton SC with Mr SA Beckett and Mr NJ Broadbent (Plaintiff)
Mr K Rewell SC (Third Defendant)
Solicitors:
Beilby Poulden Costello Lawyers (Plaintiff)
IV Knight, Crown Solicitor (First and Second Defendants)
Moray & Agnew Solicitors (Third Defendant)
File Number(s): 2011/340408 Publication restriction: None
Judgment
In 2008, while on holiday in Australia, the plaintiff, Mr Cruse, was seriously injured in a motor vehicle accident with the result the amputation of both his legs below the knee. His mother made an application on his behalf under the Motor Accidents (Lifetime Care and Support) Act 2006 ('the Act'). The Lifetime Care and Support Authority accepted that application, initially on a provisional basis and on 24 February 2010, on a permanent basis. Mr Cruse later obtained legal advice and determined that he would explore other remedies available to him, given the limited compensation available under the statutory compensation scheme. He subsequently unsuccessfully challenged his admission to the scheme. An Assessment Panel concluded that given the nature of his injuries, he was eligible to participate in the scheme.
Mr Cruse then unsuccessfully challenged the Assessment Panel's decision before a Review Panel. The challenge turned on the proper construction of the Act and the applicable Lifetime Care and Support Guidelines, made under s 58 of the Act, which established the relevant eligibility criteria for participation in the scheme. Mr Cruse now seeks judicial review of the Review Panel's determination, under s 69 of the Supreme Court Act 1970.
Mr Cruse seeks orders setting aside the 1 July 2011 determination of the Review Panel and its decision to confirm the certificate issued by the Assessment Panel on 22 December 2010. He also seeks to have the matter remitted to the Review Panel for decision according to law.
The first and second defendants, the Review Panel and the Lifetime Care and Support Authority, both filed submitting appearances. The third defendant, Insurance Australia Ltd t/as NRMA Insurance, opposed the orders sought. Its case was that there was no error of law warranting the grant of the relief sought. The Review Panel had properly construed the Guideline in issue and the application should be refused.
It was not in issue that such an application must be determined in accordance with the approach discussed by Johnson J in Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881:
"39 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.
40 The face of the record includes the reasons expressed by the Medical Assessor and the Review Panel for their ultimate determinations: s.69(4) Supreme Court Act 1970.
41 In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:
"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
42 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]:
"Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."
43 Any error of law on the face of the record which is established needs to be dispositive before a decision such as that of the Medical Assessor or the Review Panel could be set aside in proceedings for judicial review: Jabetin Pty Limited v Liquor Administration Board (2005) 63 NSWLR 602 at 615 [28]."
Issues
In issue between the parties is the proper construction of the applicable Guideline 2.3 which provides:
"2 Injury criteria
Eligibility for interim or lifetime participation in the Scheme is limited to people injured in a motor accident, who meet the following injury criteria at the time that the application is made.
A medical specialist must certify that the injured person meets the following injury criteria, including certification that the specialist has examined the injured person and has sighted the FIM™ or WeeFIM® score sheet where applicable.
...
2.3 Multiple amputations
A person who as a result of the motor accident has had multiple limb amputations or the equivalent impairment is eligible to enter the Scheme if the following criteria are met.
Criteria for multiple amputations
- The injury resulting in the amputations, or the equivalent impairment, was caused by the motor accident; and
- There are multiple amputations of the upper and/or lower extremities at or above the fingers (metacarpophalangeal joints) and/or adjacent to or above the knee (transtibial or transfemoral) or the equivalent impairment; and
- One of the following criteria is met:
- If over 8 years of age at the time of assessment, a score of 5 or less on any of the items on the FIM™ or WeeFIM®, without prostheses worn, due to the amputations or equivalent impairment; or
- If aged from 3 to 8 years at the time of assessment, a score two less than the age norm on any item on the WeeFIM® , without prostheses worn, due to the amputations or equivalent impairment; or
- If aged less than 3 years at the time of assessment, a medical certificate from a paediatric rehabilitation physician or a specialist otherwise approved in writing by the Authority that states the child will probably have permanent impairment due to the amputations or equivalent impairment resulting in the need for daily attendant care services."
Mr Cruse's participation in the scheme depended on whether or not his below the knee transtibial amputations were 'adjacent to or above the knee'. There is no issue that Mr Cruse satisfied all the other applicable criteria.
Of necessity, a transtibial amputation is below the knee. Above the knee amputations are transfemoral. Whether or not a particular transtibial amputation is 'adjacent to' the knee is a question of fact, necessarily to be determined by reference to the place of amputation of the leg in question. The merits of the Review Panel's decision do not arise for consideration in this case. What must be determined is whether or not, as is submitted for Mr Cruse, it erred in its construction of the Guideline which governed its decision.
There was no issue between the parties that this raised a question of law.
The Act
Construction of the Guidelines must be approached having in mind the purpose of the statutory scheme. The Act establishes a no fault compensation scheme for people who suffer certain catastrophic injuries in a motor vehicle accident (see s 4(4)). Eligibility for participation in the scheme is provided in s 7, by reference to the criteria specified in the Guidelines. Section 58 permits the Authority to issue such Guidelines.
Participation in the scheme depends on acceptance of an application made either by an injured person or by an insurer (s 8). Acceptance into the scheme precludes an injured person seeking to recover certain damages under the Motor Accidents Compensation Act 1999 (see s 130A of that Act).
Disputes about whether an injury satisfies the applicable criteria are determined by an Assessment Panel (see s 14).
Grounds for review of an Assessment Panel's determination are provided in s 15 of the Act, which include that the determination was not made in accordance with the Guidelines. A Review Panel may confirm a determination or revoke it, substituting its own determination. Such determinations are binding (see s 16).
The purpose of the Act was considered by Garling J in Thiering v Daly [2011] NSWSC 1345 at [85]:
"85 It seems tolerably clear that it was the intention of the Government to introduce legislation which would establish a scheme with these features:
(a) It would cover those who, as a consequence of a motor vehicle accident, were catastrophically and permanently injured;
(b) The injuries were such that the individuals would require treatment and care for the whole of their lives;
(c) The LCS Scheme would provide for all of that treatment and care, including attendant care, for as long as it was necessary on an individually assessed basis;
(d) Because the LCS Scheme would attend to the provision of lifetime treatment and care, an injured person would not need, and would not be entitled to, compensation by way of damages for any treatment and care needs including attendant care;
(e) The only limitation on the provision of treatment and care was that it was reasonable in the circumstances, and that the injury was caused in a motor vehicle accident."
Not discussed by Garling J is that the scheme does not cover all catastrophic, permanent injuries. In the case of double transtibial amputees, for example, if both those amputations are not 'adjacent to the knee', the injured person does not qualify for participation in the scheme.
The parties' cases
For the third defendant it was urged that it would be accepted that the Review Panel had applied two tests determining whether Mr Cruse's amputations were 'adjacent to' his knee. The first was directed to the meaning of the term 'adjacent to' the knee, which it correctly construed as meaning 'closer to the knee than the ankle' in the context of this statutory scheme. The second test was to consider whether the amputation bordered the knee, that being the meaning of the term pressed for Mr Cruse. On the facts it concluded that whether the first or the second test was applied, his amputations were not adjacent to his knees. That was a factual conclusion not open to challenge.
The case pressed for Mr Cruse was that the Review Panel's decision made it clear that it was the first test, which it had applied in considering his application, not the second. In doing so it had erred, because it had failed to apply the statutory test, which required it to determine whether the two amputations were adjacent to Mr Cruse's knees. The Panel had instead applied a different test, namely whether the amputations were closer to his knees than his ankles. While it had later referred to the construction of the term urged for Mr Cruse, namely that it was only amputations bordering the knees, which fell within the criteria established by the Guideline, it had not decided his appeal on that basis. Further, in considering that construction it had also erred in construing the word 'knee' to include other structures, such as ligaments.
The Assessment Panel's decision
When considering Mr Cruse's application, the Assessment Panel sought and was provided with information as to the legislative intent of the Guidelines. It observed:
"The Panel had been provided with information about the legislative intent of the Guidelines for people with amputation as outlined in a letter from Ms Bain, dated 1 December 2010. The Panel noted that the only specific reference to amputations in the Legislative Assembly Second Reading Speech of the passing of the of the Motor Accidents (Lifetime Care and Support) Act 2006 is on Page 4, as below:
Part 2 of the bill deals with the eligibility requirements and entitlements of participants in the scheme. A person will be eligible to participate in the Scheme if their injury meets the criteria to be established by the LTCS guidelines. Essentially, the catastrophic injuries requiring lifetime support, which it is intended the scheme should cover, are spinal cord injury and serious traumatic brain injury. However, there will be other types of motor accident injuries that may result in a need for lifetime support - for example, severe burns or bilateral amputations - and the LTCS guidelines will make provision for this.
The Assessment Panel noted that Mr Cruse had '13cm below knee (transtibial) stumps'.
The Assessment Panel noted the Macquarie definition of '"adjacent" [as] "lying near, close, or contiguous; adjoining; neighbouring"'. As to the criteria specified in cl 2.3 of the Guidelines, under the heading 'Panel deliberations' the Assessment Panel observed:
"The Panel discussed the components of the eligibility criteria for people with amputations. It noted that "adjacent" to the knee is mentioned. It agreed that this is near to the knee but this is not further clarified by the eligibility criteria. Mr Cruse has bilateral transtibial amputations which are near the knee. The majority of the panel agreed that this criterion was satisfied."
No explanation was given for its conclusion that Mr Cruse had bilateral amputations near the knee.
The Review Panel's decision
Mr Cruse challenged the Assessment Panel's conclusion. The Review Panel considered the material before the Assessment Panel, as well as other material provided to it. This included reports from Dr Henderson-Slater, whose opinion was that Mr Cruse's amputations were not adjacent to his knees. He said in his report:
'9.4 ELIGIBILITY FOR THE LIFETIME CARE AND SUPPORT SCHEME
I am not expert in the legal definitions required to satisfy the criteria for participation in the Lifetime Care and Support scheme. However a common sense interpretation of the criteria as I understand them to be suggests that Mr Cruse does not meet the requirements. The standard for amputations of the leg requires amputation 'adjacent to or above the knee'. No common-sense interpretation of this would suggest that Mr Cruse's amputations are adjacent to his knees. His below segment is approximately one third of the length of the tibia. The word 'adjacent' is defined in the OED as 'lying near to; adjoining; bordering. (Not necessarily touching)' (shorter Oxford English Dictionary, 1980, vol 1, p 24). This is not the situation when a third of the original length remains, in my opinion. Furthermore, from a prosthetic perspective he is able to use the knees functionally, i.e. as hinges, and he is able to power the lower legs to drive forward (by extending at the knee) which is not feasible for an amputee with very short below knee segments. It seems probable to me that the description 'adjacent to or above' was drawn up to make a distinction between the more able amputee with a sufficiently long below-knee segment to use a below knee prosthesis well, and the 'adjacent or above' amputee who is less functionally able. Mr Cruse clearly falls into the category of the more functionally able amputee. This is because he has an adequate length of leg below the knee on both sides which allows him to walk well when his prostheses are fitting well. I do not therefore believe he falls into the category of persons who are intended to be covered by 'Lifetime Care and Support'.
The Review Panel noted the Assessment Panel's conclusions; the case advanced for Mr Cruse, that his amputation at 1/3 of the tibia's length 'does not adjoin the knee'; and that he had the ability to use his knees functionally, i.e as it hinges and to power his lower legs forwards, a feat which is not possible for an amputee with very short below knee stumps. It also noted the opinion expressed by Dr Henderson-Slater and that of Dr Millons, who had earlier opined:
"Criteria for multiple amputations
The injury resulting in the amputations, or the equivalent impairment, was caused by the motor accident. That is the case here.
That there are multiple amputations of the lower extremities at or adjacent to or above the knee (trans-tibial or trans-femoral or the equivalent impairment).
That is an extremely vague statement. Mr Cruse clearly does not have amputations above the knee (trans-femoral amputations). He has fairly standard trans-tibial amputations with 13cm residual limbs with(sic) are more than adequate to use prostheses as he has well demonstrated.
One is then referred to the term adjacent which is an odd term to use when describing amputees and is not one that one would really use in a clinical setting. The term adjacent means "lying near, close or contiguous or bordering on".
That seems to me to indicate that if that is to be applied to lower limb amputations the amputation would really have to be right at the top end of the tibia or at the distal end of the femur. If Mr Cruse's amputations were at that level he would not be able to manage standard below-knee prostheses and his mobility would be considerably affected as a result of having to go into above-knee prostheses.
A trans-tibial amputation above the ankle would not be considered to be adjacent to the knee. I do not believe that a 13cm below-knee, trans-tibial amputation can be considered adjacent to the knee either."
The Review Panel also noted the respondent's submissions that the ability to use the knee functionally or not, was irrelevant to the determination of eligibility under the Guidelines and its support of the Assessment Panel's conclusions.
The Review Panel outlined its 'deliberations', observing:
"The Review Panel discussed in detail the definition of "adjacent", noting the abovementioned dictionary definitions of "lying near, close, contiguous or bordering on."
The Review Panel viewed the colour photograph of Mr Cruse's lower limbs, noting bilateral transtibial amputations, each displaying approximately 1/3 residual tibial length. The appearance in the photograph was consistent with the recent clinical findings as described within the reports of both Dr Millons and Dr Henderson Slater."
The Review Panel noted that Mr Cruse's transtibial amputations were each of standard length, that usually considered ideal for fitting of a well-functioning transtibial prosthesis; shorter and longer transtibial stumps being technically more difficult to fit from a prosthetic perspective.
The Review Panel noted that the term 'transtibial' is not used in isolation within the Eligibility criteria, instead it is used in conjunction with the qualification of the amputation being "adjacent" to the knee. This being the case, the Review Panel agreed with the Applicant that not all bilateral transtibial amputations satisfied the criterion of being "adjacent" to the knee. Clearly, long transtibial amputations closer to the ankle than the knee do "not" satisfy the criterion of being "adjacent" to the knee. Thus, a person with bilateral "long" transtibial amputations closer to the ankle than the knee does not satisfy the criterion. For similar reasons, a person with a "standard" transtibial amputation on one side and contralateral "long" transtibial amputation does not satisfy the criterion."
It then turned to discuss its 'Deliberations in relation to eligibility criteria'. It concluded:
"The Review Panel decided that the term "adjacent" to the knee in the context of transtibial amputation meant an amputation closer to the knee than the ankle.
The Review Panel also discussed the intent of the legislation, with all Panel members agreeing that the legislation was intended to cover transtibial amputations of "standard" or "ideal" transtibial length, as demonstrated by Mr Cruse. The Review Panel noted (as had been highlighted by the Respondent) that Mr Cruse had various support needs due to the presence of bilateral lower limb amputations in relation to domestic assistance and equipment. There had clearly been adverse functional consequences for Mr Cruse as a result of the bilateral lower amputations.
...
The Review Panel discussed the issue of the transtibial amputations "bordering" the knee in respect of being considered "adjacent". In this context, it was noted that the term "knee" is also not specifically defined within the legislation. For example, the knee anatomically consists of the knee joint line along with multiple other structures such as the joint capsule and collateral ligaments. The latter structures (capsule and medial collateral ligament) actually insert several centimetres below the knee joint line. This being the case, the knee joint spans a distance of many centimeters above and below the joint line, so an amputation stump measuring 13 cm is in fact contiguous with structures usually considered part of the anatomical knee including the joint capsule and medial collateral ligament, for example
The Panel agreed that it was necessary for the amputation to be closer in distance to the knee than the ankle, to be considered "adjacent" the knee.
The Review Panel considered the arguments put by the Applicant in relation to Mr Cruse's current knee function and type of prosthesis able to be used by Mr Cruse. However, the Review Panel agreed that such arguments were not pertinent to the decision of whether Mr Cruse's bilateral transtibial amputations were "adjacent" to the knee (or not), as specified within the Eligibility criteria.
Taking the abovementioned matters into account, the Review Panel concluded that Mr Cruse's bilateral transtibial amputations met the criterion of being "adjacent" to the knee. Therefore, Mr Cruse is eligible for participation in the Scheme from the perspective of multiple lower limb amputations adjacent to the knee."
Statutory Construction
Neither the Act nor the Guidelines provide a definition of the term 'adjacent to or above the knee' or of the words 'adjacent' or 'knee'. They must thus be given their ordinary meaning, albeit the construction of the Guidelines must always be undertaken having in mind the purpose of the legislative scheme for which they were established. As discussed in Residual Assco Group Limited v Spalvins [2000] HCA 33; (2000) 202 CLR 629:
"In construing a statutory provision, we should always keep in mind what Learned Hand J said in Cabell v Markham [148 F 2d 737 (1945) at 739.]:
"Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."
Further as Basten JA discussed in Blacktown Workers' Club Ltd v O'Shannessy [2011] NSWCA 265:
" ... whether a word in a statute is to be given its ordinary meaning or a technical or defined meaning is a question of law: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395, referring to the first proposition in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287."
For the respondent, it was argued that the approach of the Review Panel would be accepted, the notion of a 'knee' having the medical meaning which the Review Panel discussed, that is, including other structures such as ligaments. It seems to me that submission may not be accepted. There was no evidence that there was such an accepted medical meaning and if consideration is given to the definition of the word in Blakiston's, Gould Medical Dictionary, 4th Edition, for example, the word is defined as:
"The part of the leg containing the articulation of the femur, tibia, and patella."
The ordinary meaning of the word given in the Macquarie Online Dictionary is:
"Knee - noun the joint or region in humans between the thigh and the lower part of the leg."
It follows that the approach of the Review Panel, to consider that a knee consists anatomically of not only a joint, but also of other structures, such as ligaments and to construe the word accordingly, is to give the word a meaning which it does not ordinarily have.
Even if it were established that the word 'knee' had the medical meaning which the Review Panel contemplated, caution would have to be exercised in adopting that meaning to construe the Guideline. In Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, for example, the High Court had to consider the interpretation of a composite phrase and whether it ought to be construed having regard to the trade meaning of certain of the words used in the phrase. There it was discussed at 401:
"No doubt there are cases where a court or tribunal must interpret a composite phrase by reference to the ordinary meaning of the words taken as a whole without recourse to the trade meaning that one or more of its words may have. Much depends on the subject matter and context of the phrase. In the area of statutory interpretation and construction, courts must be wary of propounding rigid rules. Even the use of general rules carries dangers in this area because of the tendency for such rules to be given an inflexible application [Cooper Brookes (Wollongong) [1981] HCA 26; (1981) 147 CLR 297 at 320.] Nevertheless, when construing a composite phrase which does not have a trade meaning, it will ordinarily make sense for a court or tribunal to take notice of the trade meaning of a word or words within that expression, provided such an interpretation does not lead to a result which is absurd [See Bennion, Statutory Interpretation, 2nd ed (1992) at 679 -710] in the sense that the result may be unworkable or impracticable [See R v Camphill Deputy Governor [1985] QB 735 at 751; Sheffield Council v Yorkshire Water Ltd [1991] 1 WLR 58 at 72; [1991] 2 All ER 280 at 292, inconvenient See Shannon Realties v St Michel (Ville de) [1924] AC 185 at 192-193; Income Tax Commissioners for City of London v Gibbs [1942] AC 402 at 414; Jones v Director of Public Prosecutions [1962] AC 635 at 662; Lawrence Chemical Co v Rubinstein [1982] 1 WLR 284 at 291; [1982] 1 All ER 653 at 658. [39], anomalous or illogical [See Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43 at 52 per Brennan CJ, Gaudron, McHugh and Gummow JJ; Tolley v Morris [1979] 1 WLR 592 at 601; [1979] 2 All ER 561 at 569; Customs and Excise Commissioners v Hedon Alpha Ltd [1981] QB 818 at 826], futile or pointless [See Bishop v Deakin [1936] Ch 409 at 413-414; Kammins Co v Zenith Investments [1971] AC 850 at 860. [41], or artificial See R v Cash [1985] QB 801 at 806]. Consideration of the trade meaning of individual words in such cases is more likely than not to lead to the interpretation that the makers of the instrument had in mind."
In this case, there was no evidence that the term 'adjacent to or above the knee' has an understood medical meaning. Indeed, the opinions of Dr Henderson-Slater and Dr Millons suggest that it does not. That is no doubt why the Assessment Panel sought assistance as to whether any light was shed on the construction of the term by other documents which it sought to have provided to it. They did not assist.
As discussed by Beazley JA in Rodger v De Gelder & Anor [2011] NSWCA 97 at [49] Guidelines such as those which here arise for consideration must be 'construed in a practical, commonsense way'. Bearing that admonition in mind, it seems to me that an amputation 'adjacent to or above the knee', is in the case of a transtibial amputation, an amputation of the tibia near or close to the knee joint. The term is not concerned with the proximity of the amputation of the tibia to other structures connected to the knee joint, such as ligaments.
That this is what was in contemplation when the Guideline 2.3 was drafted, is apparent from the way in which the Guideline equates transtibial amputations below the knee, with transfemoral above the knee amputations and 'equivalent impairments'. In the context of leg amputations, that term would clearly capture an amputation which was neither a transfemoral or a transtibial amputation, but one at the knee joint itself, for example. The word 'adjacent' also has an ordinary meaning, which should be born in mind. That given in the Macquarie Online Dictionary is:
"Adjacent - adjective lying near, close, or contiguous; adjoining; neighbouring: a field adjacent to the main road.
In construing the Guideline it should be born in mind that in using the phrase 'adjacent to or above the knees', the consequences flowing from an above the knee bi-lateral transfemoral amputation have clearly been equated with those flowing from a below the knee transtibial amputation, where the amputation occurs 'adjacent to the knee'. That is a limitation on participation in the scheme, which must be given effect, when the term is construed.
It should also be considered that transtibial amputations below the knee which are not 'adjacent to the knee', are not recognised by the Guideline as being of such seriousness, that they should provide a basis for participation in the no fault compensation scheme established by the Act. This is notwithstanding the obviously serious, life long impact which such double amputations would unarguably have for an injured person.
Clearly enough, any person suffering a double amputation will suffer catastrophic damage, requiring life time support, but the Guidelines have adopted an approach which excludes some double amputees from participating in the scheme. The criteria selected is not a technical medical term, nor a defined term. It is a description, in plain ordinary English words, of the site of a particular amputation, which must be given effect.
The Review panel erred
I am satisfied that a fair reading of the Review Panel's decision reveals that it failed to apply the criteria established by the Guideline. It decided that 'adjacent to' the knee meant nearer to the knee than the ankle. That is not the test which the Guideline establishes. As a matter of logic, an amputation of the tibia at a point nearer to the knee than the ankle, may still not be a transtibial amputation 'adjacent to' the knee.
To conclude that a particular point of amputation of the tibia is 'adjacent to' the knee, by having regard to the fact that the point of the amputation is not past the midway point between the knee and the ankle, is to consider an entirely irrelevant matter. The Guideline requires consideration to be given to whether the amputation is 'adjacent to or above the knee'. That criteria does not require any consideration to be given to the proximity of the amputation to the ankle. It depends only on proximity to the knee.
The Guidelines could have adopted the test which the Review Panel used, but they did not. Nor do the Guidelines specify that all double amputations below the standard or ideal place of below the knee amputations, would qualify an injured person for participation in the scheme. That test was also not adopted, as it could have been. To the contrary, adoption of a test of an amputation 'adjacent to' the knee, suggests that standard or ideal amputees were not intended to be captured by the test, given that on the evidence, such amputations occur at about one third of the way down the tibia.
The Review Panel was satisfied that the Guideline intended that all standard amputations, at one third of the tibia, would entitle the injured person to participation in the scheme. Why that view was reached, was not explained. When consideration is given to the purpose of the statutory scheme and the evidence as to the obvious difference in the position of a person who has had a standard or ideal amputation, which makes the person a good candidate for a functioning prosthesis, when compared to the position of a person with an above the knee amputation, who is left without even a hinging knee, that the use of the words 'adjacent to or above the knee' was intended to include all those with an ideal or standard amputation, seems most unlikely.
The respondent's submission that the Review Panel applied a second test to determine Mr Cruse's application, namely that for which Mr Cruse contended, may not be accepted. That does not appear to be the basis upon which the Review Panel's decision rested. Further, the term 'adjacent to or above the knee' can have only one meaning, which must be applied consistently to all applicants for participation in the scheme, who have had bilateral below the knee amputation. That meaning has to be resolved in the context of the equivalence which the criteria draws between an amputation of the femur above the knee and a below the knee tibial amputation, 'adjacent to the knee', giving the word 'knee' its ordinary meaning, as I have discussed.
Even if the Review Panel's observations were accepted as having been intended to be a second test, applied in order to determine whether or not Mr Cruse's amputations were 'adjacent to the knee', that is bordering his knees, as the third defendant urged, in proceeding on the basis that the term 'knee' includes associated structures, in my view the Review Panel erred, departing as it did from the ordinary meaning of the word, in a way which the Guidelines did not intend.
Clause 2.3 of the Guideline requires one consideration in the case of a below the knee transtibial amputation, that is the proximity of the point of amputation, to the knee. If that point is 'adjacent to' the knee, that is near or close to the knee, then the criteria is satisfied. If not, the criteria will not be satisfied and the injured person is not eligible to participate in the scheme, unless on the particular facts, it can be concluded that he or she has suffered an 'equivalent impairment'.
What must firstly be determined in this case, is whether the amputations at a point which left Mr Cruse with tibial stumps of about 13 cm in length, were amputations 'adjacent to or above' his knees and if not, whether he suffered equivalent impairments. In the result, the appeal should be upheld and the matter remitted for determination according to law.
Costs
The usual order as to costs is that they follow the event, with the result an order that the third defendant pay the plaintiff's costs of the proceedings, as agreed or assessed. Unless the parties approach within 14 days that will be the Court's order.
Orders
For the reasons given I make the following orders:
1. The Review Panel's decision of 1 July 2011 is set aside.
2. The matter is remitted to the Review Panel to determine according to law.
3. Unless the parties approach to be heard within 14 days, the third defendant is to pay the plaintiff's costs of the proceedings, as agreed or assessed.
**********
Decision last updated: 17 May 2012
6
4