Insurance Aust v Milton

[2015] NSWSC 1392

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Insurance Aust v Milton [2015] NSWSC 1392

Hearing dates:

7 August 2015; further written submissions filed 13 August 2015

Date of orders:

25 September 2015

Decision date:

25 September 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)    Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the plaintiff may challenge the FIM Assessment dated 28 November 2014 be extended up to and including 23 April 2015.

(2)    The Summons be dismissed.

(3)    The Plaintiff pay the First Defendant’s costs of the proceedings;  and

(4)    There be no order as to the Second and Third Defendants' costs of the proceedings.

Catchwords:

ADMINISTRATIVE LAW – Lifetime Care and Support Scheme – judicial review of decision of Review Panel refusing Plaintiff insurer’s application for First Defendant to join scheme – whether Review Panel erred in applying test for connection between brain injury and functional incapacity – alleged error immaterial – whether Review Panel’s reasons adequate – alleged failure to address inconsistencies in First Defendant’s histories to doctors – alleged failure to address First Defendant’s stated unwillingness to join scheme – ground rejected – misconceives function of Review Panel – proceedings dismissed.

Legislation Cited:

- Accidents Compensation Act 1985 (Vic) – s 68
- Interpretation Act 1987
- Motor Accidents Compensation Act 1999 – s 141A(1)
- Motor Accidents (Lifetime Care and Support) Act 2006 – s 7, s 8, s 12, s 13, s 14, s 15
- Supreme Court Act 1970 – s 69

Cases Cited:

- AAI Limited v Ali [2015] NSWSC 1068
- AAI Limited v Fitzpatrick [2015] NSWSC 1108
- Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
- Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
- Craig v State of South Australia [1995] HCA 58; 184 CLR 163
- Daly v Thiering [2013] HCA 45; 249 CLR 381
- Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214
- Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149
- Nay v SAR & H [1937] CPD 363
- Peet v NRMA Insurance Ltd [2015] NSWSC 558
- Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112
- Rodger v De Gelder [2015] NSWCA 211
- Southern Cross Airline Holdings Ltd v Arthur Andersen & Co (a firm) [1998] ACL 325 FC 87; BC9800953
- SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609
- Thiering v Daly [2011] NSWSC 1345; 83 NSWLR 498
- Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480

Category:

Procedural and other rulings

Parties:

Insurance Australia Ltd – Plaintiff
Trent Nathan Milton – First Defendant
Lifetime Care and Support Authority of NSW – Second Defendant
Dr Sophia Lahz, Dr Adeline Hodgkinson, Dr Michael Rochford, in their capacity as a Review Panel and in their capacity as a FIM Assessment Panel of the LCSA – Third Defendants

Representation:

Counsel:
M.A. Robinson SC, B. Kelleher – Plaintiff
K. Rewell SC, P. Frame – First Defendant
N/A – Second and Third Defendants (Submitting appearances filed on 07.05.15)

Solicitors:
Moray & Agnew – Plaintiff
Matthews Folbigg – First Defendant
Crown Solicitor for NSW – Second and Third Defendants

File Number(s):

2015/120236

Publication restriction:

Nil

JUDGMENT

1. The first defendant to these proceedings, Trent Milton, suffered severe injuries in a motor cycle accident on 5 March 2011. The plaintiff, Insurance Australia Limited trading as NRMA Insurance (“NRMA”), is the insurer of the at fault vehicle. It has admitted liability for Mr Milton’s claim for damages.

2. In circumstances which I will describe, NRMA applied to have Mr Milton included in the scheme for providing care and support for persons injured in motor accidents established by the Motor Accidents (Lifetime Care and Support) Act 2006 (the scheme and the “LCS Act” respectively). If Mr Milton was admitted into the scheme then he would be precluded from claiming damages in respect of his treatment and care needs from NRMA (Motor Accidents Compensation Act 1999; s 141A(1)).

3. Mr Milton strongly objected to being included in the scheme. Ultimately, the third defendant, a Review Panel acting under s 15 of the LCS Act, determined that Mr Milton was not eligible for entry. Neither the Review Panel nor the second defendant, the Lifetime Care and Support Authority of New South Wales (the “Authority”), took an active role in these proceedings.

4. NRMA invokes this Court’s supervisory jurisdiction confirmed by s 69 of the Supreme Court Act 1970 to seek judicial review of the Review Panel’s determination and an associated Functional Independence Measurement assessment (“FIM assessment”) on the basis that they were affected by an error of law on the face of the record or a jurisdictional error.

5. NRMA contended that the Review Panel erred in apparently requiring that Mr Milton’s brain injury be the sole or main cause of his impaired functioning before he was eligible for participation in the scheme. The NRMA also contended that the Review Panel’s reasons for its determination (and the FIM Assessment) were inadequate. In particular the NRMA contended that the members of the Review Panel failed to address and resolve various inconsistencies in the assessment of Mr Milton contained in the medical reports placed before them and failed to address the effect on Mr Milton’s credibility of his unwillingness to join the scheme.

6. For the reasons set out below I reject these contentions. In summary, any error on the part of the Review Panel in stating or applying the appropriate test for the connection between his brain injury and his impaired functioning was immaterial to its decision. Otherwise, the Review Panel set out the “actual path of reasoning” to its decision (Wingfoot Australia Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55]; “Wingfoot”). The path it adopted revealed an approach that was consistent with its obligations, specifically its obligation to form its own opinion concerning Mr Milton’s level of functioning.

7. To explain these conclusions it is first necessary to briefly describe the operation of the LCS Act before outlining the background to the review panel’s decision.

The scheme

8. The operation of the statutory scheme provided for by LCS Act is set out in Daly v Thiering [2013] HCA 45; 249 CLR 381 at [4] to [13] (“Daly”). Further, in Daly at [14] the High Court adopted the following statement by Garling J at first instance (Thiering v Daly [2011] NSWSC 1345; 83 NSWLR 498 at [85]) concerning the principal features and objectives of the scheme (and s 130A of the Motor Accidents Compensation Act 1999) namely:

“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.”

9. In addition, the following aspects of the scheme should be noted.

10. First, an application for a person to become a participant in the scheme is to be made to the Authority and can only be made on behalf of the person injured or by the insurer of a claim made by the person in respect of the injury (LCS Act; s 8(1)). An application by an insurer does not require the person’s consent (LCS Act; s 8(2)).

11. Second, eligibility for participation in the scheme is governed by s 7. It provides:

“7 Eligibility for participation in the Scheme

(1)   A person who has suffered a motor accident injury is eligible to be a participant in the Scheme in respect of the injury if the person’s injury satisfies the criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme.

(2)   Participation in the Scheme may be as a lifetime participant or an interim participant and for that purpose the LTCS Guidelines are to establish criteria for eligibility for lifetime participation and criteria for eligibility for interim participation in the Scheme.

(3)   A person is not eligible to be a participant in the Scheme in relation to an injury if the person has been awarded damages, pursuant to a final judgment entered by a court or a binding settlement, for future economic loss in respect of the treatment and care needs of the participant that relate to the injury.

(4)   The LTCS Guidelines may make provision for or with respect to eligibility for participation in the Scheme, including provision for or with respect to the criteria that a motor accident injury must satisfy for the injured person to be eligible for participation in the Scheme in respect of the injury and the determination of whether a motor accident injury satisfies those criteria.”

12. Third, as is evident from s 7, the LCS Act makes provision for the specification of the “LTCS Guidelines” (the “Guidelines”). The authority to make the Guidelines is confirmed by s 58. Subsection 58(5) effectively treats the Guidelines as statutory rules for the purposes of the Interpretation Act 1987. One subject matter for the LTCS Guidelines is eligibility for inclusion in the scheme (LCS Act, s 7(1)). Further, s 19(1) provides that the Guidelines may relate to the “procedures for the referral of disputes for determination or review of determinations and the procedure for determination”. The content of the Guidelines is addressed below.

13. Fourth, the LCS Act provides a means for the assessment of disputes about, inter alia, a person’s eligibility to participate in the scheme. If there is a dispute as to whether a “motor accident injury” suffered by a person satisfies the eligibility criteria in the Guidelines then the dispute is to be referred to an “assessment panel” for determination (LCS Act, s 14(1)). An assessment panel is a panel of assessors convened under Div 1 of Part 3 (LCS Act, s 12). Such assessors are “medical practitioners and other suitably qualified persons” appointed by the Authority (LCS Act, s 13). The assessment panel is obliged to determine the dispute and “give a certificate as to its determination setting out the reasons for its determination” (LCS Act, s 14(3) and s 14(4)).

14. Further, a determination of an assessment panel can be referred for review by a “Review Panel”, but only if one or more of the grounds specified in s 15(1)(a) to (d) are demonstrated, namely a change in the person’s condition, the availability of additional information, that the original determination was not made in accordance with the Guidelines or that the original determination was demonstrably incorrect in a material respect. If a matter is so referred, the Authority is required to convene a panel of three assessors to constitute the Review Panel. The Review Panel can confirm the determination of the assessment panel or it can revoke it and substitute its own determination and issue a certificate as to that determination (LCS Act, s 15(3) and (4)).

15. Fifth, clause 2 of the Guidelines specifies the criteria that must be met by a relevant person for the purposes of s 7 of the LCS Act depending on the type of injury that has been suffered. Five types of injury are identified, namely spinal cord injury, brain injury, amputations, burns and permanent blindness. Clause 2 identifies the relevant criteria for brain injury as follows:

“Eligibility for interim participation and eligibility for lifetime participation is limited to people injured in a motor accident and meet the following injury criteria at the time 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 FIMTM or WeeFIMR score sheet where applicable.

…

2.2   Brain injury

A traumatic brain injury is an insult to the brain, usually with an associated diminished or altered state of consciousness that results in permanent impairment of cognitive, physical and/or psychosocial functions.

A person who as a result of the motor accident has had a brain injury is eligible to enter the scheme if the following criteria are met:

Criteria for brain injury:

• the brain injury was caused by the motor accident; and

• the duration of the Post-Traumatic Amnesia (PTA) is greater than 1 week. If the PTA assessment is not available or applicable (for example, if the child is under 8 years of age, or the injured person has a penetrating brain injury), there must be evidence of a very significant impact to the head causing coma for longer than one hour, or a significant brain imaging abnormality due to the motor accident, and

• one of the following criteria is met:

•    if over eight years of age at the time of assessment, a score of 5 or less on any of the items on the FIMTM or WeeFIMR due to the brain injury …” (emphasis added)

16. Sixth, clause 3 of the Guidelines explains the concept of a FIM Assessment as follows:

“3 Functional Independence Measure (FIMTM) assessment

The FIMTM (or WeeFIMR) assessment is to be conducted by:

a person who has been trained in FIMTM or WeeFIMTM , passed the relevant examination and is credentialed through the Australian Rehabilitation Outcomes Centre; or

an assessor approved, in writing, by the Lifetime Care and Support Authority (the Authority) to conduct FIMTM or WeeFIMR assessments.

Timing of FIMTM or WeeFIMR assessments – initial application to Scheme

The FIMTM or WeeFIMR assessment must be conducted within one month of the date of the initial completed application to the Scheme. If more than one FIMTM or WeeFIMR assessment has been conducted then the assessment closest to the date of the application must be used.

Timing of FIMTM or WeeFIMR assessments – application for lifetime participation

The FIMTM or WeeFIMR assessment must be conducted within two months of the date of an application for an interim participant to become a lifetime participant.

WeeFIMR age norm

Any reference to the age norm of any item on the WeeFIMR is a reference to the normative data published in the WeeFIMR Version 5.0 issued by Uniform Data System for Medical Rehabilitation.”

17. Seventh, although s 14(4) of the LCS Act imposes an obligation upon an assessment panel to set out the reasons for its determination, there is no equivalent obligation set out in s 15 for Review Panels. However, clause 17 of the Guidelines provides:

“The review panel will issue a certificate that certifies its decision on the dispute. The review panel will confirm the assessment panel’s determination or revoke it and issue its own determination. The certificate will include written reasons for the decision and will be in the form approved by the Authority.”

The NRMA’s application

18. The injuries suffered by Mr Milton in his accident included a traumatic brain injury, severe injury to the right lower leg which resulted in a right sided trans-tibial amputation, fractures of the right radius and ulnar and a right radial nerve injury. According to the Review Panel, prior to the accident Mr Milton had been a keen cyclist, surfer and snow boarder. Between the ages of sixteen and thirty-two he lived overseas and at one time he worked as a snow boarding coach for the American Olympic team. Notwithstanding the severity of his injuries, Mr Milton maintained his devotion to sporting activities and exercise. He has become an elite para-snow boarder. He was a member of the Australian Paralympic team at the Winter Olympic Games in Sochi in 2014. According to the Review Panel, Mr Milton lives alone and self manages a complicated lifestyle “which involves spending half the year in Australia and the other half on European ski fields whilst engaging in training for the Paralympics”.

19. Mr Milton was an interim participant in the scheme for the first two years after his accident. On 21 March 2013 the Authority issued a letter stating that Mr Milton was not eligible for lifetime participation in the scheme.

20. On 18 September 2013, NRMA’s lawyers wrote to the Authority disputing the decision not to accept Mr Milton as a permanent participant in the scheme. They submitted that Mr Milton met the criteria for eligibility contending that he had a score of five or less on at least one of the items on the “FIM” due to his brain injury. To that end they enclosed a “FIM score sheet, brain injury” which had been completed by Dr Bowers on 12 September 2013. Dr Bowers identified two matters in respect of which he had a score of five or less, namely bladder management and bowel management. Dr Bowers gave Mr Milton a score of three. In relation to bladder management, Dr Bowers recorded that Mr Milton had stated that he had urinary and bowel incontinence “requiring frequent change of underwear”.

21. The dispute generated by NRMA’s application was referred to an Assessment Panel pursuant to s 14(1) of the LCS Act. On 25 November 2013 the Assessment Panel issued a certificate which maintained the Authority’s decision that Mr Milton was not eligible to participate in the scheme. Critical to that conclusion was their observation that two assessors “both FIM credentialed examined Mr Milton at his home on 11 November 2013” and determined that “no domain had a score of 5 or less”. Contrary to Dr Bowers’ assessment, those assessors listed Mr Milton’s bladder management and bowel management as a “seven”. A score of seven corresponded to complete independence.

22. On or about 30 May 2014 the NRMA applied for a review of the Assessment Panel’s determination pursuant to s 15 of the LCS Act. Accompanying that application was a report from Dr Bowers dated 22 May 2014. Based on his most recent examination of Mr Milton and a review of other reports Dr Bowers expressed uncertainty about the appropriate scores for Mr Milton. He stated that “due to varying complaints” he concluded that the score for bladder and bowel dysfunction “is either 3 or 7 for each item”. In relation to “social interaction” Dr Bowers assessed his score as “either 5 or 6” and, depending on whether he needed supervision, his score on memory and problem solving was 5 or 6.

23. Based on this material, on or about 29 July 2015 an officer of the Authority determined that there was available additional relevant information that was capable of having an effect on the Assessment Panel’s determination (s 15(1)(b)). This was not the subject of any challenge in these proceedings. The Authority convened a Review Panel under s 15(3). The Review Panel was comprised of two experts in rehabilitation medicine and a urologist. As part of that review, the two rehabilitation specialists conducted a FIM assessment of Mr Milton between November 2014 and early January 2015. They recorded their assessment on a document entitled “FIM score sheet: Brain injury”. The outcome of their assessment was that Mr Milton did not score five or less in any of the relevant domains.

24. In light of the NRMA’s contentions it is necessary to explain the structure of the “FIM score sheet” in more detail. The sheet is divided into four columns headed “Area”, “Score”, “Is Score due to the brain injury” and “Explain reasons for giving this score”. In the column headed “area” there are listed various functional aspects of the subject’s physical and mental condition grouped into five areas namely “self care”, “transfers”, “locomotion”, “communication” and “social cognition”. For example “bladder management” and “bowel management” fall within the self care section. The second column contains a score for each function. As noted a seven equates to full independence. The third column simply requires the completion of a box stating “yes” or “no” and the fourth column requires the inclusion of a short explanation. For those functions where a score of seven was provided the third column was left blank. Of the eighteen functions Mr Milton scored a seven on six of them. For the other twelve functions he scored a six. For ten of those functions the form listed a “no” for the question whether the score was “due to the brain injury”. For two of them the form listed a “yes” to that question namely “expression” and “memory”.

18. On or about 27 January 2015 the Review Panel provided a certificate upholding the Assessment Panel’s determination (s 15(4)). The certificate included 27 pages of reasons. The FIM assessment was attached to those reasons.

19. In its reasons the Review Panel noted that NRMA had lodged lengthy submissions which included complaints that Mr Milton “had provided an inconsistent history to Dr David Bowers in September 2013 compared with May 2014” and that Mr Milton “had deliberately underreported symptoms so that he could exit the Scheme”.

20. The Review Panel noted the vast amount of material that had been provided to it stating that “all [review] panel members confirm they have received, read and considered” that documentation. The Review Panel discussed that material in considerable detail. They devoted a page to summarising Dr Bower’s reports. In relation to his bladder functioning the Review Panel’s reasons record that while he “may suffer from occasional urinary incontinence, the cause of this incontinence is categorically unrelated to traumatic brain injury” and added that the “occasional faecal incontinence referred to within the documentation was unrelated to the traumatic brain injury from the subject accident” and his brain injury was not of sufficient severity to cause faecal incontinence. The Review Panel continued:

“Apropos the other grounds raised for the Review, the Panel decided that the available evidence suggested the claimant’s levels of function and independence fluctuated markedly according to prevailing levels of fatigue. The documents indicated that in some circumstances, he functioned independently whereas in other situations, he needed assistance. The Panel was unable to explain on a medical basis the reasons for the improvement in FIM scores by Dr David Bowers between September 2013 and March 2014. This was not the expected pattern of recovery from brain injury so many years after the subject accident.

The Review Panel decided that it would be necessary to conduct an updated FIM assessment of the claimant. At the assessment, the claimant would be asked about the alleged improvement which had occurred in function between September 2013 and March 2014. The Panel would not only interview the claimant but also request to interview a friend or support person who would be familiar with Mr Milton’s day-to-day function.” (emphasis added)

28. The Review Panel then stated:

“Following the FIM assessment, the Panel concluded that Mr Milton had suffered a severe traumatic brain injury as evidenced by GCS (Glasgow Coma Score) and PTA (post-traumatic amnesia) criteria, and brain imaging findings, with resultant high-level cognitive deficits affecting memory, communication and executive function. However, the magnitude of these impairments has not prevented him from living an independent life, despite the presence of chronic pain and complex prosthetic needs. He lives alone and self-manages a complicated lifestyle, which involves spending half the year in Australia and the other half on European ski fields whilst engaging in training for the Paralympics. The Panel is cognizant of information within reports by treatment providers referring to the difficulties experienced by Mr Milton including negativity, fatigue and reduced ability for problem solving. However, the Panel is of the view that these difficulties are substantially caused by numerous other factors in addition to brain injury.

…

The traumatic brain injury with attendant higher order cognitive difficulties and fatigue, has not assisted his coping abilities in the face of such life changing difficulties although it is not in the Panel’s opinion the sole cause nor the main cause of the problems he has experienced with day-to-day life. Mr Milton [has] been dogged by persistent pain from orthopaedic injuries, recurrent prosthetic breakdown/skin breakdown and complex rehabilitation needs all of which have superimposed on the person he was (and still is) to cause the fluctuations in day-to-day performance detailed in the various treatment, rehabilitation and medicolegal reports.

…

The Panel accepts that the deficits from brain injury contribute to his difficulties coping day-to-day although the much greater contribution has been made by pain, lower limb amputation, reduced confidence and self-esteem superimposed on premorbid personality factors. The Panel is not of the view that the cognitive, behavioural, emotional and communication impairments from the subject traumatic brain injury warrant Mr Milton receiving prompts, cues and supervision with activities of daily living.

The Panel is satisfied that Mr Milton scores a 6 on FIM items expression, social interaction and memory due to traumatic brain injury, and a 7 on comprehension and problem solving. Mr Milton scores 6 on the mobility items due to the use of appliances from physical injuries, not traumatic brain injury.” (emphasis added)

29. The Review Panel then reiterated the conclusions noted above in relation to Mr Milton’s bladder and bowel functioning and described the information it received from a friend of Mr Milton concerning his overall functioning. The Review Panel concluded as follows:

“In summary, whilst there are extensive and detailed reports of significant cognitive and urological impairments in 2013 these have largely resolved in 2014. …

By the participant’s own admission he was very familiar with the assessment tool (the FIM) and could have tailored his responses in order to achieve an impression of independence. The review panel examined and took note of circumstances and performance other than his verbal report (such as his ability to live alone, to self-manage his finances and calendar and to successfully plan independent overseas trips). The panel recognises that a severe traumatic brain injury has been sustained although recovery has been sufficient to enable the participant to live independently in the community without the need for daily supervision and support.

Conclusions

The Assessment Panel considered all of the available evidence and determined that Trent Milton does not meet the criteria for eligibility to the Lifetime Care and Support Scheme because he does not score 5 or below on any of the FIM items due to traumatic brain injury.”

The Decisions Under Review

30. As noted the NRMA challenges the validity of the decision of the Review Panel made under s 15 of the LCS Act. It also seeks to separately challenge the validity of the FIM assessment. In its written submissions it characterised the FIM assessment as the decision of Review Panel “purportedly made under clause 2.2” of the guidelines and s 7 of the LCS Act. The NRMA also sought leave to challenge the FIM decision outside the three month period provided for in Uniform Civil Procedure Rule 59.10(1). It contended that it was appropriate to not immediately challenge the FIM Assessment but instead await receipt of the Review Panel’s decision and that was challenged within the three month period. I accept that contention. The extension will be granted.

31. Little attention was given in oral argument to whether certiorari or relief in the nature of certiorari would extend to a FIM assessment. The Guidelines contemplate and, to an extent, authorise the undertaking of a FIM assessment. Section 7 of the LCS Act gives the Guidelines a force of law equivalent to a regulation. In those circumstances the question of whether the FIM assessment was amenable to certiorari or relief in the nature of certiorari would turn upon whether it had a “discernible or apparent legal effect upon rights” in its own right (Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149, 159). Given that a FIM Assessment can be determinative of whether the criteria for brain injury are satisfied (and were in this case) then that may suffice. It is not necessary to consider this further because, as noted, the FIM Assessment was attached to and, on the view I take, formed part of, the Review Panel’s reasons for its determination. It was not disputed that those reasons form part of the “record” for the purposes of this application and that would extend to the FIM assessment (Supreme Court Act 1970, s 69(3)).

First Ground: alleged causation error

32. NRMA’s first ground contends that the Review Panel committed an error of law on the face of the record or fell into jurisdictional error in the manner in which it addressed causation in the passages identified above at [28].

33. Clause 2 of the Guidelines specifies three causation inquiries that must be undertaken in determining whether an adult suffering from a brain injury is eligible for participation in the scheme. The first is to determine whether a person had a brain injury “as a result of the motor accident”. The second is whether the brain injury was “caused” by the motor accident. The third is to determine whether the adult scored “5 or less on any of the items on the FIM … due to the brain injury”.

34. There was no issue before the Review Panel that the first two of these matters were satisfied, namely that Mr Milton suffered a brain injury as a result of and caused by the motor accident. The Review Panel accepted that Mr Milton suffered a “severe traumatic brain injury” referable to the accident. However the passages objected to by NRMA concerned the third inquiry namely the connection between the brain injury and functional incapacity. In particular the NRMA contended that by inquiring whether the brain injury was either the “sole cause” or even the “main cause” of the incapacity the Review Panel adopted a test that was too strict. The NRMA contended that the Guidelines specify a test that equated to causation at common law and effectively required the brain injury to be “a contributing clause, which is more than negligible”. The written submissions, in support of this ground, referred to the Motor Accident Authority’s Permanent Impairment Guidelines at clauses 1.7 to 1.9 which recite that test and a number of decisions which referred to that test including that of Hidden J in Peet v NRMA Insurance Ltd [2015] NSWSC 558.

35. Construed in context the phrases “as a result of” and “due to” most likely correspond with the common law concept of causation (Southern Cross Airline Holdings Ltd v Arthur Andersen & Co (a firm) [1998] ACL 325 FC 87; BC9800953; Nay v SAR & H [1937] CPD 363)). However, it is not necessary to consider this further. Senior Counsel for Mr Milton, Mr Rewell SC, submitted inter alia that, irrespective of whether or not the above passages reveal an erroneous approach to causation on the part of the Review Panel, they do not affect its decision. At the end of the passage in [29] the Review Panel expressed the critical conclusion that Mr Milton did not meet the criteria for eligibility because he “does not score 5 or below on any of the FIM items due to traumatic brain injury”. When that statement is read with the attached FIM assessment it reveals that Mr Milton did not score 5 or below in respect of any item of functional dependence at all irrespective of whether or not any impaired functioning was caused by or due to his brain injury.

36. I have explained the structure and content of the FIM assessment sheet above (at [24]). The sheet required the assessors to first determine a score for Mr Milton’s level of functional dependence for each area and, if it was less than 7, then determine whether that was “due to the brain injury”. Thus the first task involved an assessment of Mr Milton’s level of functional impairment irrespective of whether it was “due to” (or caused by) brain injury or not. The outcome of all those assessments was that he did not score lower than a six. Of itself that was fatal to the contention that Mr Milton satisfied the eligibility criteria in the Guidelines. A decision is not liable to be set aside for error of law on the face of the record and nor is it affected by jurisdictional error unless the error is material to the outcome; that is “but for the error, the decision would have been, or might have been, different” (Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321, 353 per Mason CJ; see also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [29]). In this case, but for the alleged error, the decision would definitely not have been different.

37. It follows that I reject ground 1 of the application.

Ground 2: Alleged Failure to Set out Lawful Reasons

38. Ground 2 of the application contends that the Review Panel failed to comply with so much of clause 17 of the Guidelines that required the inclusion of “written reasons” for the decision included in the certificate issued under s 15(3). A failure to provide such reasons constitutes an error of law on the face of the record (Wingfoot at [28]; Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [31], [33] and [130]; “Vegan”) although it has not yet been decided whether it amounts to a jurisdictional error (Wingfoot at [29]; Vegan at [130]; see also Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [48] to [58]). This latter point is of potential significance in this case because NRMA seeks to demonstrate the inadequacy of the Review Panel’s reasons by reference to the contents of various materials that do not form part of the record such as medical reports (see Craig v State of South Australia [1995] HCA 58; 184 CLR 163; “Craig”). If a failure to provide proper reasons is not a jurisdictional error then no recourse can be had to that material (Craig at 176). I will assume in NRMA’s favour that a complaint of inadequate reasons does constitute a jurisdictional error so that recourse can be had to that material.

39. In the written submissions supporting this ground it was contended that the Review Panel’s reasons were defective because they did not include:

“… reasons for significant and necessary aspects of the assessment task before [the Panel], for example;

a.   The panel failed to deal with and/or it dismissed many inconsistent histories given by the first defendant to other medical experts and treatment providers;

b.   The panel failed to explain why there was such an alleged and dramatic improvement in the first defendant’s condition that occurred in such a short space of time or any reasons as to the medical nature of that improvement;

c.   The panel failed to make an assessment of or determine the credibility of the first defendant (because he did not want to be a participant in the scheme);

d.   The panel failed to explain why it gave such significant if not overwhelming weight to the first defendant’s own account before it in circumstances where the first defendant had little or no credibility (because he did not want to be a participant in the scheme).”

40. In support of these contentions the Court was provided with 14 pages of submissions that identified what were said to be inconsistencies in Mr Milton’s presentation and the various medical reports. These were divided into two categories namely the “Urological Issue” and the impact of Mr Milton’s brain injury on his cognitive functioning.

41. In relation to the former category three broad complaints were made. The first is that there were differing assessments of Mr Milton’s urinary incontinence and bowel management function in the various medical reports before the Review Panel. These were said to be based on differing histories from Mr Milton. Second, it was submitted that the FIM assessment for these two items contained inconsistent statements by Mr Milton. The relevant part of the FIM Assessment concerning those issues stated as follows:

“6.   [Bladder management] Mr Milton told the Assessors that there had been no episodes of urinary incontinence since he left hospital. He said the cystoscopy had ‘fixed’ the problem. The content of the various medical reports was discussed with him. He maintained that there had been no urinary incontinence for several years. He reported passing urine 2-3 times per day depending on fluid intake and activity. At night, he uses a urinal and on average there is one episode of nocturia. He does not take any medications to regulate bladder function. Mr Potts has not noticed any significant incontinence. He could not provide any further information about this.

7.   [Bowel management] Mr Milton told the Assessors there had been a single skid mark during a transfer a couple of years ago. At all other times and in particular recently there had been no instances of faecal leakage. As with the bladder, the content of reports suggesting otherwise was discussed with him although he maintained that he was fully continent of faeces. He does not take any aperients.

Mr Potts has not noticed any significant incontinence. He could not provide any further information in this regard.”

42. The third complaint was that neither the Review Panel nor the members of it who conducted the FIM Assessment addressed or attempted to “deal with” the information that Mr Milton imparted to them regarding his knowledge of the FIM Assessment process. This information is recorded in the emphasised portion of the following passage from the FIM Assessment’s discussion of the score of 7 that Mr Milton received for “comprehension”:

“Mr Milton understood the purpose of this FIM (Functional Independence Measure) Assessment. He told us that he has a strong wish to exit the Lifetime Care and Support Scheme so he can live an independent life. He understood that the results of our FIM assessment would determine whether or not he could exit the Scheme. He explained his belief that he would have greater freedom; making it easier to procure (for example) prosthetics whilst he was living abroad, if he were not in the Scheme. He stated that this assessment is his seventh FIM assessment. He told us that he had researched the FIM and he had also researched who we were. He knew that we were rehabilitation physicians, and he told us that one of his treating doctors is a rehabilitation physician (Dr Laycock). Mr Milton appeared to have an adequate understanding of the FIM tool, and of the critical significance of the score of 5. He told us on multiple occasions that he was very independent, and did not need any prompting or cueing. He strongly maintained to us that he was living an independent life. It was clear that he understood the information we needed to hear, to enable him to exit the scheme. Mr Milton had no difficulty with understanding the questions of the Assessors. Many of the questions were about complex matters such as chronic pain, multiple lower limb prostheses, the difficulties he has encountered during lengthy rehabilitation, his financial management abilities, third party payers (of which there have been three including the CTP Insurer, LTCS and the Workcover Insurer) and his interpersonal relationships. He demonstrated that he could read complex information and gain understanding of the detail. He displayed a good understanding of his financial affairs, which he self-manages. He receives an income through the Workcover Insurer, which is presently paying for his medical, rehabilitation and prosthetic needs. He recently took the decision to change insurers from the CTP Insurer to the Workcover Insurer.

The examining Panel members spoke with Mr Milton’s friend Steven Potts by telephone on December 22, 2014. Mr Potts confirmed that Mr Milton is capable of understanding complex matters. He can sometimes become overwhelmed due to cognitive fatigue. However, he is insightful in this regard, and able to request that he take a break or else postpone further discussions until later.” (emphasis added)

43. In relation to the impact on his cognitive functioning the NRMA’s submissions also referred to the contents of various medical reports that were before the Review Panel that were said to express doubts about his cognitive functioning including memory, cognitive fatigue, a tendency to verbosity, problem solving, inappropriate social responses and a difficulty in relaying a coherent personal history. Ultimately it was submitted that the Review Panel simply accepted Mr Milton’s assertions “without any critical evaluation of the reliability of the history provided” and that “no account appears to have been taken” of his concern to present himself in accordance with the FIM criteria as suggested by the above passage.

43. These submissions involve two misconceptions. First they continually assert that the Review Panel erred by not considering or addressing some matter such as the supposed inconsistencies in the medical reports and Mr Milton’s statement that he had studied the requirements of FIM Assessments. If established, complaints of that kind do not reveal the Review Panel failed to provide proper reasons although they may reveal that it erred in law in some other respect. In Wingfoot at [55] the High Court described the obligation to provide reasons imposed upon a Medical Panel which was required under s 68(2) of the Accidents Compensation Act 1985 (Vic) to form “its opinion on a medical question referred to it” as follows:

“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.”

45. Second the NRMA’s submissions implicitly attribute to the Review Panel an adjudicative role which required it to address and resolve every disagreement between it and Mr Milton relevant to its application to have Mr Milton join the scheme. That was not the function of the Review Panel. Instead the nature of the function it performed was similar to that of the Medical Panel in Wingfoot which the High Court described as follows (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.” (emphasis added)

46. This passage is applicable to Review Panels acting under s 63 of the Motor Accidents Compensation Act 1999 (Rodger v De Gelder [2015] NSWCA 211 at [108] per Gleeson JA with whom Macfarlan and Leeming JJA agreed; Frost v Kourouche [2014] NSWCA 39; 86 NSWLR 214 at [2] per Basten JA). There is no relevant difference between their functions and the functions of a Review Panel constituted under the LCS Act.

47. Once the true nature of the Review Panel’s function is understood then its “actual path of reasoning” is clear. In the passage extracted in [27] the Review Panel acknowledged and understood that there were differing medical opinions concerning Mr Milton’s level of functioning especially his bowel and bladder functioning. Consistent with the above passage from Wingfoot, the Review Panel determined to make its own assessment of his level of functioning. The Panel undertook that task by acknowledging Mr Milton’s stated unwillingness to join the scheme and his knowledge of the FIM Assessment criteria, but nevertheless the members of the Panel used their professional judgment to evaluate his level of functioning.

48. This is further evident from considering its approach in relation to the two issues identified by the NRMA. In relation to his bladder and bowel functioning, as noted, the Review Panel addressed Dr Bower’s reports in detail. The Review Panel accepted that the difference in the results he obtained could not be explained “on a medical basis” (see [27]). The Review Panel considered that whatever difficulties he encountered were “categorically unrelated” to his brain injury. I have also set out the contents of the FIM Assessment on that topic. Otherwise I do not accept, as the NRMA contends, that there was any necessary inconsistency in the information conveyed to the FIM Assessors by Mr Milton (see [41]). There is nothing to suggest that the Review Panel considered that was the case.

49. In relation to Mr Milton’s cognitive functioning, I have set out the discussion in the FIM Assessment concerning his comprehension (see [42]). The Review Panel’s discussion of his “expression”, “social interaction” and “problem solving” were equally lengthy. It is clear that in conducting the FIM assessment the authors used the opportunity to make detailed observations of his level of cognitive functioning. This is best illustrated by the matter raised by the NRMA concerning Mr Milton’s understanding of the purpose and details of a FIM assessment. While that is capable of raising a suggestion of him tailoring his responses, the fact that Mr Milton was able to obtain that level of understanding was suggestive of him possessing a significant level of cognitive functioning.

50. In relation to the NRMA’s four complaints noted in [39] the Review Panel addressed and resolved the allegedly “inconsistent histories” by reviewing and observing Mr Milton and forming their own opinion. In relation to Mr Milton’s credibility and the weight to be given to his version, the Review Panel considered his account in light of the material they had concerning his level of functioning and having regard to their own expertise. The Review Panel specifically acknowledged and took account of the contention that Mr Milton deliberately tailored his evidence twice in its reasons (see [26] and [29]) and once in the FIM Assessment ([42]). Nevertheless, the Review Panel placed particular emphasis on his high level of independent living and their observations of his intellectual capacity when assessing his cognitive functioning.

51. Finally, in submissions filed after the hearing, NRMA relied on the following passage from the judgment of Schmidt J in AAI Limited v Fitzpatrick [2015] NSWSC 1108 (“Fitzpatrick”) at ([50] to [51]) as indicative of the approach the Review Panel should have but failed to adopt:

“… It is insufficient, nevertheless, for an assessor simply to identify in that form to the questions posed, the material supplied and considered, what clinical examination of the applicant revealed and then to state the conclusions reached on the questions which had to be answered. Here, of course there was the added difficulty that Dr Crocker’s reasons do not correctly reflect the matters referred.

An assessor is also required to reveal the reasoning process which led to each of the conclusions reached. That not only requires active intellectual engagement with whatever is relevant to a resolution of each issue referred for assessment, but also a consideration of the competing views urged by the parties as to that issue. It also requires an explanation to be given of how that has led the assessor to the particular conclusion arrived at, given the material on which the conclusion rests.”

52. NRMA also sought to rely on a passage to similar effect from the judgment of Wilson J in AAI Limited v Ali [2015] NSWSC 1068 at [58] to [60].

53. I do not accept these passages are of any assistance to the NRMA. These statements must be read in a manner consistent with the two principles from Wingfoot that I have noted above. Further, to adopt the phraseology of the above passage from Fitzpatrick, in this case the Review Panel did partake in an “active intellectual engagement” with the NRMA’s submission and considered the “competing views” they put forward. However that did not require it to undertake a detailed response to every asserted inconsistency to resolve exactly what the source of that inconsistency was, ie was it Mr Milton changing his version, or an inaccurate recording of his condition by the relevant Doctor? Instead the Review Panel “actively engaged” with the NRMA’s contention by determining Mr Milton’s level of functioning for itself. Its reasons record that it did that. They provided the “actual path of reasoning” (Wingfoot at [55]). That was sufficient.

54. I reject ground 2.

Conclusion

55. It follows that NRMA’s summons will be dismissed. I will order it to pay Mr Milton’s costs. If any party seeks to vary the costs order they can apply to vary it within the time provided for in Uniform Civil Procedure Rule (“UCPR”) 36.16(3A).

56. Accordingly the Court orders that:

1. Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the plaintiff may challenge the FIM Assessment dated 28 November 2014 be extended up to and including 23 April 2015.

2. The Summons be dismissed.

3. The Plaintiff pay the First Defendant’s costs of the proceedings; and

4. There be no order as to the Second and Third Defendants' costs of the proceedings.

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Amendments

25 September 2015 - Correct title of judgment.

Decision last updated: 25 September 2015