Insurance Australia Limited t/a NRMA Insurance Limited v Mustafa Al-Tabaibeh

[2022] NSWSC 324

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Insurance Australia Limited t/a NRMA Insurance Limited v Mustafa Al-Tabaibeh [2022] NSWSC 324

Hearing dates:

13 October 2021

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders:

(1) The decision of the third defendant dated 4 March 2021 is set aside.

(2) The matter is remitted to second defendant for determination according to law.

(3) The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – Motor Accidents Compensation Act – Failure to provide reasons – Finding not based on evidence – Failure to respond to substantial and clearly articulated argument – Psychiatric injury secondary to pain – Resolution of physical injury – Decision of Appeal Panel set aside

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), s 94

SIRA Assessment Guidelines, cl 18.4

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

D'Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201

Gordian Runoff Limited v Ozurumba [2020] NSWSC 774

IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105

IAG Limited v Sleiman [2017] NSWSC 1346

Medlin v State Government Insurance Commission (1994) 182 CLR 1

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 44 FLR 41

Minister for immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration v Eshetu (1999) 197 CLR 611

Oeding-Erdel v Allianz Australia Insurance Limited [2021] NSWSC 1264

Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211

Sleiman v Gadalla Pty Ltd [2021] NSWCA 236

State of New South Wales v Moss (2000) 54 NSWLR 536

Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517

Swift v SAS Trustee Corporation [2010] NSWCA 182

Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480, [2013] HCA 43

Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55, (2016) 75 MVR 1

Zurich Australia Insurance Ltd v Drca [2018] NSWSC 1945

Texts Cited:

Macquarie Dictionary, online ed

Category:

Principal judgment

Parties:

Insurance Australia t/a NRMA Insurance Ltd (Plaintiff)
Mustafa Al-Tabaibeh (First Defendant)
Personal Injury Commission of New South Wales (Second Defendant)
Allan Cowley in his capacity as a tribunal member of the Personal Injury Commission of New South Wales (Third Defendant)

Representation:

Counsel:
Ms J Gumbert with Mr M Jones (Plaintiff)
Mr E Romaniuk SC with Mr M Eirth (First Defendant)

Solicitors:
Mr Peter Hunt (McCabe Curwood Lawyers) (Plaintiff)
Mr Kaled Kheir (Kheir Lawyers) (First Defendant)

File Number(s):

2021/155562

Publication restriction:

Nil

Judgment

1. HER HONOUR: This is a judicial review where the plaintiff seeks to set aside the decision of a tribunal member of the Personal Injury Commission of New South Wales in relation to the assessment of damages.

2. The plaintiff is Insurance Australia t/a NRMA Insurance Ltd (the “insurer”). The first defendant is Mustafa Al-Tabaibeh. In the Tribunal, Mr Al-Tabaibeh was described as the claimant and the appellant. Here he is described as the first defendant. For ease of understanding and because he is the only active defendant, I will refer to him as “the defendant”. The second defendant is the Personal Injury Commission of New South Wales (the “Commission”). The third defendant is Allan Cowley in his capacity as a tribunal member of the Commission (the “Tribunal Member”). The second and third defendants filed submitting appearances. The parties relied on a joint court book (“Ex A”).

3. By amended summons filed 14 July 2021 (“Amended Summons”) the insurer relevantly seeks:

1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the third defendant, Allan Cowley in his capacity as a tribunal member of the Commission namely, the assessment dated 4 March 2021, made purportedly pursuant to section 94 of the Motor Accidents Compensation Act 1999 (NSW) ("the MAC Act").

2. An order in the nature of mandamus remitting the matter to the Commission for determination by a different tribunal member of the Commission, according to law.

Background

4. On 25 February 2013, the defendant was injured in a motor accident (“the accident”). The insurer is the CTP insurer of the vehicle at fault in the accident.

The defendant’s personal history

5. The defendant was born and educated in Jordan and after completing High School, graduated with a Batchelor's Degree in Mechanical Engineering after some 5 years.

6. He worked for approximately 1 year in Jordan as an engineer before working in Saudi Arabia for 2 years from 2007 to 2009. He then returned to Jordan to work as a mechanical engineer, immigrating to Australia in 2011 sponsored by his brother and becoming an Australian Citizen in 2014.

7. In 2011 the defendant commenced a Diploma of Management, which he completed. He then commenced studying an Advanced Diploma of Business Management in which he completed all subjects bar one and only had 2 weeks of study remaining before the accident occurred.

8. The defendant has not undertaken any further educational studies, nor has he been in any employment since the date of the accident. He is not married, nor in a relationship and from prior to the accident lives with his brother, his brother's wife and their children.

The accident

9. On the day of the accident the defendant was a passenger in his brother's vehicle travelling north along Punchbowl Road, Belfield when the insured vehicle, travelling east along Victoria Avenue, failed to give way to the right of the defendant's vehicle and collided with its passenger side. Police attended the scene. The defendant did not attend hospital.

10. The defendant made a claim with the insurer seeking damages for physical and psychiatric injuries arising from the accident. He claimed that as a result of the accident he suffered an annual tear in the lumbar spine, a soft tissue injury to the cervical spine, a subacrominal bursitis with moderate AC joint arthopathy and an adjustment disorder with depressed mood and anxiety.

11. An application for assessment of damages was made to the Claims Assessment and Resolution Service of the State Insurance Regulatory Authority ("SIRA") pursuant to s 94 of the MAC Act. Since 1 March 2021, the Commission, exercises the claims assessment functions that were formerly exercised by SIRA.

The defendant’s examination history

12. Since the accident the defendant has undergone some 18 different MAS assessments and 18 IME consultations. This is unusual.

13. On 20 October 2014, the defendant was examined by occupational physician Dr Alan Home upon referral of the insurer. Dr Home determined the defendant’s physical injuries constituted a 10% whole person impairment (“WPI”). (Ex A 9)

14. On 20 August 2015, the defendant was examined by Assessor Nigel Marsh at MAS to determine the degree of his physical whole person impairment (“WPI”). On 1 September 2015, Assessor Marsh issued a MAS Certificate determining the defendant’s physical injuries constituted a 10% WPI. (Ex A 30)

15. On 7 December 2015, the defendant was examined by Assessor Nicholas Glozier at MAS to determine the degree of his psychiatric WPI. On 11 December 2015, Assessor Glozier issued a MAS Certificate determining the defendant’s psychiatric injuries constituted a 26% WPI.

16. On 2 August 2016, the defendant was examined by consultant psychiatrist Dr A.P. McClure upon the referral of the insurer. Dr McClure diagnosed the defendant with major depression. (Ex A 42)

17. On 14 October 2016, the defendant was examined by Assessor Wayne Mason at MAS with respect to a treatment dispute (domestic assistance) for psychiatric injuries. On 18 October 2016, Assessor Mason issued a MAS Certificate. (Ex A 53)

18. On 16 November 2016, the defendant was examined by Assessor Shane Moloney at MAS with respect to a treatment dispute (domestic assistance) for psychiatric injuries. On 17 November 2017, Assessor Moloney issued a MAS Certificate. (Ex A 67)

19. On 28 June 2017, the defendant was examined by Assessor Jennifer Wise at MAS with respect to a treatment dispute (domestic assistance) for psychiatric injuries. On that same day, Assessor Wise issued a MAS Certificate. (Ex A 78)

20. On 30 January 2018, the defendant was examined by consultant psychiatrist Dr Patricia Jungfer upon the referral of his lawyers. Dr Jungfer diagnosed the defendant with chronic post-traumatic stress disorder and major depression. Dr Jungfer determined the defendant’s psychiatric injuries constituted a 57% WPI. (Ex A 94)

21. On 15 March 2018, Mr Craig Martin conducted a Vocational Capacity Assessment of the defendant upon the referral of his lawyers. (Ex A 121)

22. On 13 July 2018, the defendant was examined by occupational physician Dr Alan Home upon the referral of the insurer. He assessed the defendant’s physical injuries as constituting a 7% WPI. (Ex A 147)

23. On 13 September 2019, the defendant was examined by consultant psychiatrist Dr A.P. McClure upon the referral of the insurer. Dr McClure diagnosed the defendant as having a chronic major depressive episode. He assessed the defendant’s psychiatric injuries as constituting a 47% WPI. (Ex A 162)

24. On 13 September 2018, M & A Investigations conducted surveillance of the defendant’s attendance on Dr McClure. They produced a report in this regard dated 13 September 2018, as well as surveillance footage. (Ex A 173)

25. On 25 October 2018, M & A Investigations conducted surveillance of the defendant’s residence. They produced a report in this regard dated 25 October 2018, as well as surveillance footage. (Ex A 198)

26. On 22 January 2020, the defendant was examined by Assessor Michael Gliksman at MAS with respect to a treatment dispute (domestic assistance) for physical injuries. On 25 January 2020, Assessor Gliksman issued a MAS Certificate. (Ex A 247)

27. On 30 January 2020, the defendant was examined by Assessor Anthony Samuels at MAS to determine the degree of his psychiatric WPI. On 12 February 2020, Assessor Samuels issued a MAS Certificate determining the defendant’s psychiatric injuries constituted a 15% WPI. (Ex A 322)

28. In a report dated 21 July 2020, Dr McClure reviewed the two M & A Investigations’ surveillance reports and accompanying footage, and Assessor Samuel’s 12 February 2020 certificate and gave his opinion. (Ex A 258)

29. The fundamental conflict between the parties has been the veracity of the defendant's claimed injuries and ongoing physical and psychiatric impairment. The insurer's case is that the defendant was feigning the existence and/or severity of his impairment. In support of this contention the insurer provided surveillance footage that it submitted, illustrated that the defendant was behaving inconsistently with his presentation in clinical assessment, was therefore feigning symptoms and accordingly should not be believed. The insurer further submitted that there should be no award of damages at all. The defendant’s contention is that he is not feigning or exaggerating his physical and psychiatric conditions and the difference in his presentation can be explained by his taking pain medication.

The relevant legislation

30. Section 94 of the MAC Act reads:

“94 Assessment of claims

(1) The Commission is, in respect of a claim referred to the Commission for assessment, to make an assessment of--

…

(b) the amount of damages for that liability (being the amount of damages that a court would be likely to award).

…

(3) The assessment is to specify an amount of damages.

(4) The Commission must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment.

(5) The Commission is to attach a brief statement to the certificate, setting out the Commission's reasons for the assessment.

31. Clause 18.4 of SIRA Assessment Guidelines (“the Guidelines”) states:

“18.4 A certificate under section 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out as briefly as the circumstances of the assessment permit:

18.4.1 the findings on material questions of fact;

18.4.2 the Assessor's understanding of the applicable law if relevant;

18.4.3 the reasoning processes that lead the Assessor to the conclusions made; and

18.4.4 in the case of an assessment certificate pursuant to section 94, the Assessor must specify an amount of damages and the manner of determining that amount.”

Grounds of Judicial Review

32. There are three main grounds of judicial review raised by the insurer. They are as follows:

1. In making the assessment, the Tribunal Member was required to provide reasons pursuant to s 94(5) of the MAC Act. However the Tribunal Member failed to provide lawful reasons.

2. The finding that Assessor Samuels was of the view that "the Claimant is exaggerating or feigning his physical disabilities" is based on no evidence. Assessor Samuels did not express any such view.

3. In making his determination, the Tribunal Member was required to respond to the substance of substantial and clearly articulated arguments advanced by the parties.

33. In these proceedings, the insurer contends that each of the errors identified at [2]-[9] of the grounds in the Amended Summons constitute

1. errors of law on the face of the record, and/or

2. jurisdictional errors and/or

3. constructive failure to exercise statutory power

34. As to the issue of jurisdictional error, the insurer has pleaded that the errors include a constructive failure to exercise jurisdiction.

35. The Court of Appeal in Rodger v De Gelder (2015) 71 MVR 514 (“De Gelder”) said, (at [95] per Gleeson JA, (MacFarlan and Leeming JJA agreeing)):

"[95] … Jurisdictional error includes a constructive failure to exercise jurisdiction A constructive failure to exercise jurisdiction arises when a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form.”

36. The distinctions between jurisdiction error and error on the face of the record were recently emphasised by Leeming JA (with whom Gleeson and Payne JJA agreed) in Sleiman v Gadalla Pty Ltd [2021] NSWCA 236, where His Honour stated at [20]:

“[20] It may assist other litigants invoking this Court’s supervisory jurisdiction to observe the following:

(1)   The principal bases of review of administrative decision-making in this Court’s supervisory jurisdiction are jurisdictional error and error of law on the face of the record.

(2)   Jurisdictional error cannot be defined with complete precision, but a useful summary may be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]:

“Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case.”

(3)   Error of law may be more familiar, but it shares with jurisdictional error a similar definitional challenge. Distinguishing between questions of law and questions of fact may not be easy, because “no satisfactory test of universal application has yet been formulated”: Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; [2013] HCA 30 at [39]. The absence of novelty in that statement may be seen from a passage in Holdsworth’s History of English Law, first published precisely one century ago, to “the debatable boundary line between law and fact”. Nonetheless, decisions which turn on the construction of legislation, or that are made on a basis for which there is no evidence, are common examples of errors of law.

(4) Not only do the two bases of judicial review differ in their substance, but the material which may be deployed to establish them differs. The only practical restriction upon the evidence able to be deployed to establish jurisdictional error is likely to be relevance, in accordance with s 56 of the Evidence Act 1995 (NSW). In contrast, any alleged error of law must be apparent on the face of the “record”. The term “record” is narrowly circumscribed, although in the case of a decision by a court or tribunal includes its reasons: Supreme Court Act 1970 (NSW), s 69(4), overturning the result reached in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, the background may be seen in Kriticos v State of New South Wales (1996) 40 NSWLR 297 at 299-301 and in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [62]-[78]

…”

Dungan v Padash [2021] NSWCA 66

37. Both parties referred to Dungan v Padash [2021] NSWCA 66 (“Dungan”) (an appeal from [2020] NSWDC 399) in their submissions as it bears some factual similarity to the present case. The short facts and decision are worth repeating here

38. In Dungan the respondent was injured in a motor vehicle accident in November 2016 for which the insurer admitted liability. It was agreed between the parties that the respondent’s physical injury consisted in the aggravation of existing degenerative changes, however the respondent also claimed that he suffered psychiatric injury. The insurer claimed that the respondent feigned and exaggerated his injuries. The primary judge found that the respondent’s physical injury attributable to the accident had, on the balance of probabilities, ceased within a year but that he continued to suffer from an “adjustment disorder” (a diagnosable psychiatric injury) as a result of the accident.

39. On appeal the insurer contended that the psychiatric injury was not causally related to the accident because the medical expert evidence established the adjustment disorder was “secondary to” the pain caused by the respondent’s physical injury. The respondent by cross-appeal challenged the finding that the physical restrictions attributable to the accident had subsided within a year.

40. The appeal was upheld with the Court finding (per White JA and Emmett AJA agreeing) that having found that the respondent’s psychiatric injury was consequent to his continuing pain and restriction, and given that pain and restriction was found to no longer be attributable to the accident, the primary judge erred in finding that the respondent’s ongoing psychological symptoms were causally related to the accident. In relation to the cross appeal, the Court found (per White JA (McCallum JA and Emmett AJA agreeing)) that the evidence that any trauma caused by the accident would have resolved within 12 months was “sufficiently precise and definite” to displace the inference that the pain the respondent suffered after November 2017 was attributable to the accident.

41. In Dungan at [25]-[26], [32], [51], [55]-[57] and [91] White JA (with whom Emmett AJA agreed), and McCallum JA in dissent at [69] and [73] stated:

“[25] The primary judge reasoned that on the medical evidence he accepted, the pain and physical restrictions in the respondent’s movement “should have” abated within a year of the incident, that is, by November 2017. The primary judge accepted the medical evidence that “an injury of this kind would naturally have stabilised, improved or resolved” (before November 2017).

[26] The appellant’s case was that the respondent was feigning his symptoms and did not suffer any real pain. The primary judge accepted that the plaintiff was exaggerating his symptoms. But, as noted above, the primary judge nonetheless accepted that the respondent “has suffered on-going symptoms of pain and is likely to do so in the future” and that the surveillance was not inconsistent with “… the complaint of a middle-aged man who frequently suffers pain in his back and down his left leg”. His Honour said that the surveillance showed that:

“… the plaintiff may have exaggerated, but do[es] not conclusively falsify, his evidence that he does suffer pain at certain points and that this has impeded him in his work and domestic activities.”

…

[32] I agree with the primary judge that there was evidence sufficiently precise and definite to displace the inference that the disabling pain suffered by the respondent was caused by the accident. The medical evidence that the primary judge accepted, and was entitled to accept, was that on the balance of probabilities, any trauma caused by the accident would have resolved within 12 months.”

…

[51] In her reports Dr Jungfer described the respondent’s adjustment disorder characterised by low mood, irritability and short-temperedness as being a response to persistent pain. In her report of 24 March 2020 Dr Jungfer said that his psychiatric symptoms appeared to have emerged in response to his pain complaints and lack of structured activity. He presented with a “catastrophic reaction to his pain and disability”. She said that his symptoms were “… most consistent with an adjustment reaction related to his chronic pain complaints and change in life circumstances” and that:

“The adjustment disorder is caused by his inability to work secondary to his pain. Should he be able to achieve some symptomatic relief and return to work then I believe that there would be a reversibility of his mood state. His irritability and short-temperedness would impact on his initial employment stability and finding employment.”

…

[55] But the respondent rightly said that in the absence of evidence from Dr Jungfer as to which publication she applied, and her interpretation of those publications’ description of adjustment disorders, and in the absence of any questioning of Dr Jungfer, it would be unsafe for this Court to apply its own interpretation of either publication to attempt to answer questions such as whether an adjustment disorder is temporally coincident with the stress or event, or the consequences of the stress or event, which gives rise to the disorder. It is sufficiently clear from Dr Jungfer’s report, and indeed from Dr George’s report, that the psychiatric illness was considered by them to be coincident with the symptoms of physical pain.

[56] Further, although the appellant had an evidentiary onus to show that the continued symptoms of pain were not attributable to the accident, once that onus was discharged, the legal burden remained on the respondent to show that the continuance of the adjustment disorder was materially contributed to by his earlier suffering of pain and his unemployment up to November 2017 as a result of pain experienced up to that time.

[57] The primary judge found that the respondent’s mental harm was associated with his continuing pain and restriction, but found that such pain and restriction was no longer attributable to the subject accident. That finding is correct and should have led his Honour to find that the appellant’s ongoing psychological symptoms are not causally related to the short-term trauma suffered from the accident.”

42. On this topic, McCallum JA in dissent, stated at [69]-[73]:

“[69] The point on which I disagree with White JA is confined to a question of onus. The respondent’s psychiatric condition was secondary to a physical condition caused by the appellant’s tortious conduct. As such, it was an additional condition resulting from the accident for which the appellant is liable to compensate the respondent.

[70] It was not suggested that there is any legal or medical basis for making a universal assumption that a secondary condition will necessarily cease with the resolution of the primary condition. A secondary condition occurring as a result of having a primary condition may or may not be temporally coincident with the primary condition. An infection secondary to the infliction of a wound might be expected to resolve at the same time as the healing of the wound (indeed its resolution may be a necessary condition for the healing of the wound); conversely, osteoporosis secondary to an eating disorder might continue beyond the successful treatment of the eating disorder. The absence of any assumed correlation between the resolution of a secondary condition and the primary condition from which it results is what I understand the primary judge to have meant by his remarks at [102] when rejecting Dr George’s opinion (that as the neurosurgical effects of the soft tissue injury to the back subsided, so too did his psychiatric morbidity) on the basis that it was not “logical”. The primary judge concluded, “I do not see why a cessation of physical difficulty should necessarily result to an end of mental health concerns”.

[71] The appellant sought in this context to derive some support from the definition of “adjustment disorder” in DSM 4 or DSM 5, which (so it was asserted) “leads to the inevitable conclusion that if the pain which is the basis of the condition ceases to be accident related, the condition ceases to be accident related”. For the reasons given by White JA, I agree that this Court should not resort to either of those publications to determine whether an adjustment disorder is temporally coincident with the stress or event, or the consequences of the stress or event, which gives rise to the disorder.

[72] What was required was proof. On my understanding of the authorities discussed by White JA, it was the appellant who bore an evidentiary onus to establish the premise of her contention. White JA accepts that the appellant had an evidentiary onus to show that the continued symptoms of pain were not attributable to the accident. However, his Honour holds that, once that onus was discharged, the legal burden remained on the respondent to show that the continuance of the adjustment disorder was materially contributed to by his earlier suffering of pain and his unemployment up to November 2017, as a result of pain experienced up to that time.

[73] In my respectful opinion, that analysis holds true only if the appellant established the untested premise that the pain and the psychiatric condition were temporally coincident (or, in other words, that the psychiatric condition would abate with the cessation of the physical pain).”

[my emphasis added]

The Tribunal Member’s decision

43. This matter has undergone numerous assessments in the Tribunal as outlined earlier in this judgment. The decision that is the subject of this judicial review is the one made by Tribunal Member Allan Cowley dated 4 March 2021 as to the assessment of damages (Ex A 367). To distinguish the decisions made by different tribunal members, where necessary I shall refer to those members and their decisions by name.

44. At [22]-[36] the Tribunal Member sets out the various prior assessments of other Assessors. The Tribunal Member noted the assessments relevant to this judicial review at [23]-[25] (Ex A 370):

“[23] Assessor Marsh considered the Claimant presented with marked exaggerated pain behaviour and the number of non-organic features indicative of a chronic pain syndrome. The Assessor considered that the Claimant's presentation made it very difficult if not impossible to assess the exact extent of any persisting physical injury.

[24] In a certificate dated 17 November 2016 Assessor Moloney referred to there being no consistency in the Claimant's presentation. The Claimant was unable to explain the dramatic loss in range of movement merely stating that he could not move due to pain. The Assessor concluded that there were no anatomical or pathological reasons for the gross loss of range of movement compared to previous recordings.

[25] Assessor Home first assessed the Claimant in October 2014 and attributed 7% to the right shoulder but again nothing for the cervical spine. When he assessed him again in July 2018 on the second examination, he noted that Mr Al-Tabaibeh had chronic symptoms of neck pain, back pain and pain about his right shoulder getting worse. He said he presents with prominent pain behaviour, but there was inconsistency in range of motion between the formal examination and informal. The range of active spinal and shoulder motion is not consistent with the known pathology. He concluded that there was a majority degree of exaggeration of the disability arising from the Claimant's physical disabilities.”

45. The Tribunal Member then considered the decision of Assessor Gliksman at [27]-[34] (Ex A 371):

“[27] The Insurer also relies on MAS Assessor Gliksman's certificate dated January 2020. Assessor Gliksman examined the Claimant following CARS Assessor Daley's referral of the Claimant for further medical assessment.

[28] Assessor Gliksman had the benefit of all previous reports including psychiatric reports as well as the benefit of the video surveillance.

[29] In summary the video surveillance shows a very disabled Claimant, totally reliant on his brother Abdel when he presents to Dr McClure, Psychiatrist for an examination at the request of the Insurer on 13 September 2018.

[30] In contrast, when he emerges from the consultation some 30 minutes later he initially is dependent on his brother until some minutes later and several city blocks from the appointment at XXX Pitt Street Sydney, he appears no longer dependent on his brother's assistance and is able to walk quickly and freely and certainly climb much more than 3 steps unaided and without the benefit of a handrail.

[31] Assessor Gliksman reported upon his clinical examination and then noted that there was marked inconsistency between symptomatic complaints and findings as well as inconsistencies on repeat testing. Dr Gliksman reported that Mr Al-Tabaibeh could offer no explanation for this save that he was suffering significant short term variability and pain levels. Dr Gliksman says this is not consistent with the claim of long-standing deteriorating symptomology, or with known pathophysiological processes.

[32] Dr Gliksman also questioned the Claimant regarding inconsistencies regarding the activities seen in the video surveillance. Mr Al-Tabaibeh again advised that he had taken strong medication prior to the exposure of the DVD as he was travelling to and from appointments by train at the time. He stated that this improved his range of motion.

[33] Like Dr Marsh, Assessor Gliksman concludes that there was no clinical evidence of radiculopathy in either the upper or lower extremities; there is no evidence of direct injury to the right shoulder, and no mention of pain in the right shoulder in the GP's notes until the end of May 2013 which is some 3 months after the subject accident. He thus concludes that there is no soft tissue injury to the right shoulder.

[34] Assessor Gliksman states :-

"It is medically credible that Mr Al-Tabaibeh suffered transient soft tissue injuries to the cervical spine and possibly the lumbar spine in the subject motor vehicle accident.... there is no credible historical, investigatory, or clinical evidence to indicate that any right shoulder condition had arisen as a result of that subject motor vehicle accident... However, extending the maximum benefit of the medical doubt in Mr Al-Tabaibeh's favour, it is clear that by the date of Assessment by Dr Shane Moloney (16 November, 2016), all clinical conditions that might have been contributed to the subject Motor Vehicle Accident had resolved, such that there was no objective evidence of the need for any treatments in dispute that could have been caused by the subject motor vehicle accident.”

46. The Tribunal Member then considered the defendants psychiatric injuries at [35]-[39] (Ex A 372):

“[35] As early as December 2015 MAS Assessor Glozier determined that the Claimant suffered a Major Depressive Disorder caused by the accident and that he was suffering 26% Whole Person Impairment.

[36] In August 2016 Dr McClure examined the Claimant on behalf of the Insurer and diagnosed him

"The Claimant's history and presentation interview are consistent with the diagnosis of major depression. He also has some features of Post Traumatic Stress Disorder, but in my opinion, these are insufficient to make this additional diagnosis...". He assessed the Claimant as having a Whole Person Impairment of 17%.

…

[38] The Claimant was examined by Dr Jungfer qualified on his own behalf in January 2018. She diagnosed major depression and Post Traumatic Stress Disorder. She reported:

"Mr Al-Tabaibeh developed an acute distress disorder after the accident which has become chronic and he now has features consistent with that of Chronic Post Traumatic Stress Disorder. Following the injury Mr Al-Tabaibeh was impacted upon by chronic disabling pain which has led to a loss of social integration and an inability to persist in his previous recreational activities, study, and work. This has led to a development of a major depressive illness associated with suicidal thinking...

Mr Al-Tabaibeh is solely reliant on his brother and sister-in-law for all activities of daily living and support. I understand that his brother prompts and motivates him with regard to his personal care, all meals are provided in the family and his medication is supervised ...". Dr Jungfer was of the opinion that the Claimant is not currently capable of paid employment, or study and assessed the Claimant as having a 56% WPI. She also believed that he needed immediate Clinical Psychological Intervention as an in-patient and ongoing treatment for life.

[39] The Claimant again saw Dr McClure on behalf of the Insurer on 23 September 2018 who had the benefit of the report by others including Dr Jungfer. He diagnosed:

"... has history, and manifest signs, with a chronic major depressive episode which is severe, associated with both melancholic features and near delusional nihilism ...". He was also of the opinion that the Claimant also had no capacity for work and he required domestic assistance due to both his psychiatric and physical injuries and agreed with the opinion of Dr Jungfer that he required urgent in-patient treatment. He assessed the claim for suffering 47% Whole Person Impairment.”

47. At [40]-[54] the Tribunal Member addressed what is shown in the video surveillance and the defendant’s explanation of his behaviour. The Tribunal Member recorded that in oral submissions Mr Romaniuk, acting for the defendant, submitted that it is debatable as to what the video shows, and that the high water mark is that he is feigning. The Tribunal Member further recorded that the insurer submitted that it is plain from the surveillance that the inconsistencies in the defendant 's observed behaviour could reasonably provide for an inference that his injuries, restrictions, and disabilities are greatly exaggerated, or feigned (Ex A 372-374).

48. The findings of the Tribunal Member are recorded at [57]-[71] (Ex A 374-376):

“[57] In my assessment the Claimant is exaggerating or feigning his limitations and disabilities when he first enters the foyer of Dr McClure's building. In my experience it is not unusual for Insurers to arrange surveillance of a Claimant where there is a guarantee that the Claimant will be able to be observed such as when a Claimant is attending a consultation with one of the Insurer's expert doctors. In my assessment the Claimant was aware that he could have been being observed at the time when he entered the building and when he left it.

[58] It also seems to me that it is totally conceivable that by 9.23 am if not 9.20 am that he has formed the view that he is no longer under possible surveillance and that he is now free to walk freely and not artificially restrict his movements.

[59] I do accept that he may well have taken medications prior to the assessment but this is not the explanation why after 30 minutes, or indeed 1 ½ hours (as arose from cross examination) the medication is finally working by 9.20 am.

[60] I also do accept the Claimant's explanation that his brother Abdel is mocking the exaggerated way that he first walked into Dr McClure's foyer and that only reinforces my view that the Claimant was well aware that prior to that he was being observed and should feign his disabilities.

[61] The Insurer suggests that the Claimant will no doubt submit to me that I would be comfortable accepting the Claimant's evidence because Assessor Samuels accepted that he suffers PTSD and major depression.

[62] Assessor Samuels is a Psychiatrist who examined the Claimant on behalf of the Medical Assessment Service and provided a Certificate on 12 February 2020. He was asked to assess the Claimant and also whether his psychiatric injuries give rise to a need for domestic assistance from the date of the accident to date and into the future. Assessor Samuels was provided with the video surveillance and with every other report, clinical notes, and submissions that both parties had available to them at that time.

[63] The Insurer submits that while Assessor Samuels has referred to the surveillance material and to the Insurer's submissions made in relation to it, he has not engaged the content of the surveillance in forming his opinion "he concludes that it is difficult to be clear whether or not the Claimant suffers PTSD on the basis of his presentation", but he goes on to accept that "the Claimant must have given a clearer picture of PTSD to Dr Jungfer, Glozier, Mason and McClure".

[64] Assessor Samuels spends considerable time not only reviewing all other opinions but also considering the surveillance which he obviously takes time to consider. He also notes the Insurer's considerable submissions with respect to the video surveillance.

[65] Assessor Samuels in his conclusions notes that this is a relatively minor accident and that he developed pain from a depression and anxiety as a consequence and it seems that this has worsened over time.

"Pain appears to be the predominant problem on which he is very focused, but he does appear to have accompanying quite significant depressive symptoms. It is difficult to be clear whether he suffers from Post Traumatic Stress Disorder on the basis of his clinical presentation today as he was very vague about the nature of his symptoms today. It seems that he has given a clearer picture of Post Traumatic Stress Disorder to Dr Jungfer, Glozier and Mason as well as Dr McClure in the past... I am in agreement with the other Psychiatrists that Mr Al-Tabaibeh has seen to date that he has developed quite a severe psychiatric response to this accident and, in terms of a DSM-5 diagnosis he certainly meets criteria for major depression. On the basis of the reports I have reviewed I think it is likely that he meets criteria for a Post Traumatic Stress Disorder as well".

[66] He then determines that the accident did cause Post Traumatic Stress Disorder as listed by the parties but also major depression which was not listed by the parties. He rates his Whole Person Impairment as 15%.

[67] My conclusion is that Assessor Samuels did engage with the surveillance videos and paid them the proper respect in coming to his Determination.

[68] The Insurer also noted that they requested a Supplementary Report from Dr McClure which he provided in July 2020. The report was requested of Dr McClure, the expert that they qualified, after providing him with the video surveillance and asking him to comment on the material which included the Claimant's undated Statement, Assessor Samuel's Certificate dated 17 February 2020 and the video surveillance.

[69] Dr McClure comments that after reviewing the video surveillance in detail:

"This is not the kind of behaviour I would expect to see in a severely depressed individual with psychomotor slowing, increased response latency, poverty of thought and anhedonia. Clearly Mr Al-Tabaibeh's psychiatric condition has improved markedly within an hour of seeing me.

On the other hand psychiatric assessment of this gentleman has been relatively consistent over time. He has a chronic psychiatric disorder. He has provided a plausible explanation of his difference in presentation in his undated statement. He was in considerable pain when he saw me on 13 September 2018.... certainly there was considerable behaviour on the Claimant's part with a response to pain on both occasions when I had seen him. He was preoccupied with his physical symptoms.

The Claimant has secondary major depression and some features of Post Traumatic Stress Disorder (PTSD). His depression is secondary to pain, reduced functioning, guilt, and shame. He feels a "burden" on his brother and his brother's family.

Certainly pain is contributing to Mr Al-Tabaibeh's measured impairment; however I suspect Dr Samuels has made appropriate allowance for the effects of pain (which is not able to be rated) in estimating WPI. The Claimant's level of depression (as observed at interview) is also contributing significantly."

49. Importantly in the present proceedings, at [70]-[71] the Tribunal Member stated that he accepted the opinions of Assessor Samuels and Dr McClure, stated Assessor Samuels was of the view the defendant was exaggerating or feigning his physical disabilities, and concluded that the defendant’s physical injuries caused by the accident had resolved in accordance with the determination of Assessor Maloney (Ex A 375-376).

[70] In conclusion I accept the opinions of Assessor Samuels and Dr McClure. In my view they have had the benefit of viewing the video surveillance and notwithstanding that in my view and in particular the view of Assessor Samuels that the Claimant is exaggerating or feigning his physical disabilities, none the less he suffers from a considerable psychiatric impairment which includes at least major depression and some symptoms of PTSD. This impairment does have an impact upon his other Heads of Damages as well as Non-Economic Loss. It is not for me to determine what percentage of Whole Person Impairment he is, only to observe that his WPI has been determined as being in excess of 10%.

[71] With respect to his physical injuries, I also accept the assessment of Assessor Gliksman, and others that the Claimant did suffer soft tissue injuries to his cervical spine and his lumbar spine, but that in accordance with the Determination of the MAS Assessor Shane Maloney those injuries had resolved by the time of Assessor Maloney's Certificate on 17 November, 2016.”

[my emphasis added]

50. In relation to damages the Tribunal Member stated at [81]-[83] (Ex A 377):

“[81] Dr McClure in assessing the Claimant under the PIRS (Psychiatric Impairment Rating Scale) under the category "Employability" classes the Claimant as being in class 5. His reasoning for that class is as follows :-

a. Mr Al-Tabaibeh is not functioning in any capacity in any of his roles. He does not contribute to domestic tasks. He has basically taken to his bed. He is unlikely to be able to follow simple instructions (and would also lack the motivation to do so). He is not employable in any capacity.

[82] In assessing the Claimant under the same PIRS scale MAS Assessor Samuels under the same category determines the Claimant is under class 3. His reasons are as follows :-

a. "Moderate Impairment. He does not do housework and does not do the dishes because of pain and he cannot stand as he is fearful of the pain. He does not want to take too many pain killers because he said medicine is destroying his stomach. Pain is the predominant factor impacting on Mr Al-Tabaibeh's adaptive functioning, but his depression and anxiety is moderately severe, and, in my opinion, it would also impact on his ability to attend work, his motivation, his concentration and his ability to interact with other people to a moderate; degree. He would not be able to work more than one or two days at a time and certainly would not be able to work more than 20 hours in a fortnight, but this is because of both his physical problems as well as his depression and anxiety. I would therefore rate him as having at least a moderate impairment in this domain on the basis of his depressive and anxiety symptoms".

[83] I note that the average weekly earnings for full-time adults in NSW is said to be $1,947.30 and for Australia is $1,889.70. I take both figures to be gross before deduction of tax. This more or less equates with the claim advanced by Mr Al-Tabaibeh of $1,682.00 net per week. I therefore deduct 25% of that claim as being Mr Al-Tabaibeh's residual capacity as determined by Assessor Samuels thus reducing his weekly claim to $1,261.50 per week which I then allow the full 370 weeks as claimed totalling $466,755.00.”

51. At [89] and [98] the Tribunal Member allowed for the services of a psychiatrist in the sum of $94,085.00 (Ex A 378 and 379).

52. On 4 March 2021, the Medical Assessor provided reasons for his assessment of damages together with a certificate. He awarded the defendant damages in the sum of $2,234,765.57 plus costs.

Judicial Ground (1) – failure to provide lawful reasons

53. The first ground of judicial review raised by the insurer is that in making the assessment, the Tribunal Member failed to provide reasons for his decision as required by s 94(5) of the MAC Act and cl 18.4 of the Guidelines set out earlier in this judgment.

54. Relevant to the determination of whether the Tribunal Member was required to give reasons and what such a requirement entails are the following principles.

55. The Tribunal Member was required to provide sufficient reasons for his conclusions, to avoid internal inconsistencies to ensure that his decision had "evident and intelligible justification": IAG Limited v Sleiman [2017] NSWSC 1346 at [29].

56. As was emphasised by the High Court in Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480, [2013] HCA 43 (“Wingfoot”) at [55], a written statement of reasons must explain "the actual path of reasoning":

“[55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."

57. Although Wingfoot concerned the decision of a Medical Panel under the Accident Compensation Act 1985 (VIC), it was applied to decisions of claims assessors under the present scheme in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55, (2016) 75 MVR 1 (“Zahed”).

58. Despite the requirement of exposing the actual path of reasoning, the reasons themselves need not be long, indeed a single sentence may suffice, so long as an explanation is given: Zahed at [9]. For example, in relation to why a Member disagrees with aspects of a medical practitioner's opinions, saying merely that "alt of the conflicting evidence was taken into account" is insufficient.

59. The reasons given by the Tribunal Member must be fairly read as a whole: D'Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 (“D’Ament”) at [68], and it must be remembered that administrative decisions 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 (“Wu Shan Liang”) at 271-272

60. Finally as identified in Zurich Australia Insurance Ltd v Drca [2018] NSWSC 1945 (“Drca”) at [74]-[77], in approaching a claim of error of law concerning sufficiency of reasons for an assessment under the MAC Act specifically, a practical approach must be taken, bearing in mind the statutory requirement of brevity of reasons given pursuant to s 94(5) of the MAC Act and cl 18.4.3 of the Guidelines. In cases such as the present, 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.

61. In relation to this ground, the insurer submitted that in making his assessment, the Tribunal Member failed to provide reasons in accordance with s 94(5) of the MAC Act and cl 18.4 of the Guidelines in a number of important respects, including:

1. The Tribunal Member found that the defendant was exaggerating or feigning his limitations and disabilities in surveillance footage dated 13 September 2018 (at [57]). He also found that the defendant's physical injuries sustained in the accident had resolved by 17 November 2016 (at [71]). The Tribunal Member gives no explanation for what disabilities are ‘exaggerated’ rather than ‘feigned’, and given his finding that all physical injuries had resolved by November 2016 what is meant by ‘exaggerated’ is unexplained. In this way the Tribunal Member failed to expose his actual path of reasoning and has been internally inconsistent. (Failure to explain exaggerating or feigning)

2. The Tribunal Member relied on opinions of psychiatrists Assessor Samuels and Dr McClure, as the basis for his award for damages relating to psychiatric injury (at [70]). Assessor Samuels and Dr McClure had found that the defendant's psychiatric condition was inextricably linked to "pain" and "secondary to" pain. Therefore, the Tribunal Member’s own findings as to the defendant's physical injuries was completely at odds with the findings of Assessor Samuels and Dr McClure. The Tribunal Member failed to explain how or why he was accepting and relying on the opinions of Assessor Samuels and Dr McClure, when the findings of fact that underpinned their findings were at odds with his own findings of fact. This is a failure to expose his actual path of reasoning and internally inconsistent reasoning. (Internally inconsistent reasoning)

3. On the basis of the Tribunal Member’s findings that the defendant's physical injuries arising from the accident had resolved by November 2016, he failed to explain the cause of the "pain" that formed part of the decisions of Assessor Samuels and Dr McClure, upon which the Tribunal Member relied, and failed to explain whether or how such pain was causally related to the accident. (Causation of psychiatric injuries)

4. The Tribunal Member made a reduction of 25% of the claim for economic loss, to account for retained earning capacity (at [83]) and this was supported by reasons to the effect that it was as "determined by Assessor Samuels". However, the report of Assessor Samuels said that the retained earning capacity of no more than 20 hours per fortnight was due to physical problems as well as psychiatric problems. The Tribunal Member has failed to give any reasons to explain why he has not made any adjustment to the retained earning capacity figure suggested by Assessor Samuels, to account for the his finding that the physical problems had resolved by November 2016. The Tribunal Member has failed to expose his actual path of reasoning and to explain how the opinion of Assessor Samuels actually supports the finding of 25% retained earning capacity for injuries that the Tribunal Member has determined are causally related to the accident. (Calculation of economic Loss)

62. I shall record the submissions of each party in relation to the subparts of judicial ground 1 and then make my decision in relation to each of those subparts under the heading resolution.

(1) Failure to explain exaggerating or feigning

The insurer’s submissions

63. The insurer noted that after considering the contention that the defendant had been feigning his ongoing disability and impairment, the Tribunal Member agreed that the defendant was "exaggerating or feigning" his physical symptoms.

64. The insurer submitted that a first difficulty with this finding is that there is no distinction or explanation as to whether the Tribunal Member considered that the defendant is feigning or exaggerating, despite there being a significant difference between the two.

65. Finally, the insurer submitted that having regard to the Tribunal Member’s finding that all physical injuries had resolved by November 2016, it appears that the only available conclusion is that the defendants limitations and disabilities were "feigned", leaving the inclusion of the word "exaggerated" unexplained.

The defendant’s submissions

66. In relation to this argument the defendant noted that the insurer’s submissions to the Tribunal Member treated exaggeration or feigning as a composite state of affairs, rather than two distinct modes of different behaviour reflecting something materially different from each other and did not seek to identify how the concepts were to be distinguished, or what the significance of one finding as opposed to the other was.

67. The defendant made particular reference to a passage from the written submissions document presented to the Tribunal Member, and suggested that the use of the use of exaggerated and feigning at [25] and [26] and then the use of only exaggerating at [32] show that the insurer treated the two words as being the same state of affairs.

68. The defendant says, that there is no attendant reasons obligation error in respect of the contention about exaggerating or feigning. It was the insurer through their submission document presented to the Tribunal Member that introduced the composite state of affairs of exaggerated or feigned, but because the insurer drew no particular distinction between those concepts, it is not surprising, and not a basis of criticism for error, that the Tribunal Member similarly did not draw such a distinction.

69. Further, as there is no reference to such a distinction having been raised in the Tribunal Member's statement of reasons, the defendant submitted that this Court can conclude, consistent with the insurer’s approach in the written submissions document presented to the Tribunal Member, that no such distinction was drawn in the oral assessment conference before the Tribunal Member.

70. The defendant submitted that ordinarily a contention of error which implies that a decision maker failed to engage with a case being advanced by a party requires that party to show that the case was in fact advanced: see, for example, Rodger v De Gelder at [88]-[96] and Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45]. The defendant submitted that by parity of reasoning, the insurer cannot argue for error in the failure to make a distinction between exaggerating and feigning when in reality that distinction played no material part in the dispute before the Tribunal Member, and the insurer did not advance a case based on such distinction. Further, in the defendant’s submission this contention of error is really an example of an over-zealous parsing of the statement of reasons searching for an inadequacy to be gleaned from the way in which the reasons are expressed.

71. The defendant finally submitted that it is not immediately apparent that there is in fact, in a case such as the present, a material difference between the description of exaggeration or the description of feigning. Resort to ordinary dictionary meanings does not yield a bright light of distinction between those matters.

The insurer’s submissions in reply

72. In reply the insurer submitted that although the Tribunal Member's decision is entitled to be read fairly and as a whole, that does not mean that the Court is required to overlook or look past errors of the decision maker under the guise of beneficial construction. The insurer referred to Oeding-Erdel v Allianz Australia Insurance Limited [2021] NSWSC 1264, in which McCallum JA stated at [39]-[40]:

“[39] The respondent submitted that these aspects of the proper officer's reasoning were to be construed "beneficially", relying on the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. The appropriate response to that submission was stated by Hamill J in Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216 at [47]:

"It is one thing to give a "beneficial construction" to the reasons of an administrative decision maker. It is another to fill in the gaps in the path of reasoning by reference to an assumption that the decision was made according to the relevant law."

[40] His Honour referred in that context to the remarks of Stone J in SZCBT v Ministerfor Immigration and Multicultural Affairs [2007] FCA 9 at [26]:

"The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked."

73. In the insurer’s submission the defendant fixates on the brevity of explanation in relation to "exaggerating or feigning", however that is just "one problem" in the context of the failure to give adequate reasons. The insurer submitted that the defendant failed to respond to the argument that to the extent that reasons are provided, they demonstrate a leap in reasoning amounting to internal inconsistency. The insurer says that is the fundamental problem in the reasons of the Tribunal Member, not cured by a beneficial construction.

74. It is therefore, in the insurer’s submission, not to the point that the insurer had put the case to the Tribunal Member in the alternative (ie, exaggerated or feigned). The insurer could not know or assume that ultimately the Tribunal Member would find that physical injuries had resolved in 2016, therefore rendering the alternative of "exaggerating" redundant. The insurer’s case below was properly put in the alternative having regard to the insurer's claim that physical injuries were ongoing, and the possibility that the Tribunal Member might accept that evidence (which he ultimately did not). The insurer submitted this does not excuse the Tribunal Member from making findings as to which alternative he actually found and exposing his actual path of reasoning for that finding.

Resolution

75. I do not accept the defendant’s submission that there is no material difference between the terms and that ordinary dictionary definitions yield no bright line distinction between them. The Macquarie Dictionary defines both terms in a way that, in my opinion, reveals such a distinction. Exaggerated is defined as ‘unduly magnified’, or ‘abnormally increased or enlarged’, whilst feigned is defined as ‘pretended; sham; counterfeit’ or ‘fictitiously invented’. The difference between the terms in the present matter is whether or not there is in fact the defendant is suffering from any pain. By way of example, the defendant would be said to have exaggerated his pain by pretending it was worse than it was, and would be said to have feigned his pain if he was acting as though he was in pain when he was not.

76. Nor do I accept the defendant’s submission that as the terms were introduced by the insurer in its submissions to the Tribunal Member, and the insurer did not advance a case based on a distinction between the terms, it is not a basis of criticism that the Tribunal Member did not draw such a distinction. As suggested by the insurer in its submissions in reply, when the terms were introduced to the Tribunal Member the possibility him concluding the defendant’s was still suffering from physical injuries was still open, and therefore the issue of the terms’ indeterminable meaning had not yet crystalised. The problem of indeterminate meaning is a consequence of the Tribunal Member’s conclusion that the defendant’s physical injuries had resolved. Had he not made that conclusion the ordinary dictionary definition of both terms would suffice.

75. However I do accept, as submitted by the defendant, that the distinction between the terms played no material part in the dispute between the parties, and in my opinion, whilst the failure to define those terms may be an error, it would be to over scrutinize the Tribunal Member’s reasons without regard for the statutory requirements of brevity, to set aside the decision on that basis.

(2) Internally inconsistent reasoning and (3) causation of psychiatric injuries

78. Given the interconnectedness of these two arguments and the brevity of the defendant’s submissions in relation to them, after laying out the parties submissions in relation to each I shall address them both together under the heading ‘resolution’.

The insurer’s submissions

79. The insurer submitted that the Tribunal Member's findings that the defendant was "exaggerating or feigning", together with his explicit acceptance of the findings of Assessor Moloney that all physical injuries had resolved in 2016, are particularly important in considering the Tribunal Member's reliance on the medical assessment of Assessor Samuels and Dr McClure.

80. The insurer noted that Assessor Samuels assessed the defendant's psychiatric injuries to be a result of the accident saying that “pain appears to be the predominant problem on which [the defendant] is very focused”, and that Dr McClure stated “[the defendant’s] depression is secondary to pain, reduced functioning, guilt, and shame.”

81. The insurer further noted that at [70] the Tribunal Member stated:

"In conclusion I accept the opinions of Assessor Samuels and Dr McClure In my view they have had the benefit of viewing the video surveillance and notwithstanding that in my view and in particular the view of Assessor Samuels that the Claimant is exaggerating or feigning his physical disabilities none the less he suffers from a considerable psychiatric impairment which includes at least major depression and some symptoms of PTSD”

[insurer’s emphasis]

82. The insurer submitted that the Tribunal Member’s specific reliance and acceptance of the opinions of Assessor Samuels and Dr McClure illustrates a leap in the path of his reasoning resulting in an internal inconsistency.

83. While the insurer noted that it was open to the Tribunal Member to accept the opinions of Assessor Samuels and Dr McClure, an important aspect of those opinions was that they were premised on the basis that the defendant had ongoing pain as a result of the accident and this was inextricably linked to the psychiatric condition that they diagnosed. Therefore, the diagnosis and assessment of the defendant's psychiatric condition was, according to Dr McClure and Assessor Samuels, dependent on the ongoing physical pain. The Tribunal Member has, in fact, specifically found the opposite.

84. Further the insurer noted that not only did the Tribunal Member find that the defendant was "exaggerating or feigning" his physical symptoms, he explicitly found that all physical injuries had resolved well before the assessments with Assessor Samuels and Dr McClure At [71] the Tribunal Member stated (PW-376)

"With respect to his physical injuries I also accept the assessment of Assessor Gliksman, and others that the Claimant did suffer soft tissue injuries to his cervical spine and his lumbar spine but that in accordance with the Determination of the MAS Assessor Shane Maloney those injuries had resolved by the time of Assessor Maloney's Certificate on 17 November, 2016”

85. In the insurer’s submission there is no reconciling this inconsistency. The Tribunal Member cannot simultaneously find that the defendant’s physical injuries had resolved by November 2016 and the defendant was exaggerating or feigning his symptoms when captured on surveillance and that the defendant was suffering psychiatric injury which was secondary, and inextricably linked, to the pain/injury that had already resolved and/or was being feigned in the first place.

86. The insurer submitted that while the Tribunal Member’s found that the claimant's physical injuries arising from the accident had resolved by November 2016, he failed to explain the cause of the ongoing "pain" that formed part of the decisions of Assessor Samuels and Dr McClure, (upon which the he relied) and failed to explain whether or how such pain was causally related to the accident.

87. In this regard the insurer asked a number of questions. If the defendant’s physical injuries had resolved by 2016, then what was the cause of the "pain" which was an integral part of the decisions of Assessor Samuels and Dr McClure, that the Assessor has relied upon? How can the findings of complete resolution of physical injuries be consistent with the findings of psychiatric injuries secondary to pain?

88. In relation to this argument the insurer opined that if the Tribunal Member did accept the opinions of Assessor Samuels and Dr McClure, he needed to explain how their opinions, that were based upon acceptance of ongoing physical injuries and pain, could be reconciled with his own findings regarding the complete recovery of the physical injuries. In the insurer’s submission, it is clear that in circumstances such as this matter, where the psychiatric injury is contingent on and inextricably linked to the physical injury, the Tribunal Member will be required to illustrate how that psychiatric injury continues to be causally related to the accident after the physical injury has resolved. There is no explanation for this in this case.

89. The insurer made reference to Zahed in which a Claims Assessor had purportedly relied on two reports to support his findings, however his findings were different from the opinions that had been given in those reports. In that case, Leeming JA said, at [7] - [8]

“[7] However the Assessor found that 6.76 hours per week of assistance was required until the date of assessment and until some stage in the future That was inconsistent with the certificate of Assessor Davidson who had found that most of the heads of domestic assistance ceased to be necessary or reasonable after 8 November 2011 It was also inconsistent with the views of Dr Maniam (who was of the view that the need would extend for the whole of Ms Zahed s lifetime) What then was the reasoning process which led the Assessor to reject the opinions of all of the practitioners who gave evidence on this point and reach a different conclusion?

[8] The short point in this appeal is that the certificate discloses no reasoning process on that critical integer in the calculation of this head of damages at all.”

90. The insurer also referred to Gordian Runoff Limited v Ozurumba [2020] NSWSC 774, wherein Fagan J quashed a decision for failing to give adequate reasons, in circumstances where the evidence did not support the decision made. In that case, his Honour stated, at [39]-[40]

“[39] It was inherently contradictory for the assessor to have (a) adopted Mr Smith’s calculation of a theoretical weekly loss, (b) adopted a working-life expectancy of 20 years and (c) applied a multiplier and a discount for vicissitudes - and then called the result a buffer.

[40] The assessor’s reasons in all of these respects are seriously deficient. These defects with respect to exposure of reasons are subsidiary to the no evidence point referred to at [37] above. That is because in the absence of any evidence upon which the assessor could have found the fact that was essential to adoption of Mr Smith’s calculation, no intelligible reasons could have been formulated.”

91. The insurer finally submitted that there is no lawful path of reasoning on one of the critical integers of the present decision and that leap in the path of reasoning has left the Tribunal Member's reasons bereft of intelligible justification.

The defendant’s submissions

92. The defendant did not make many submissions in relation to arguments 2 and 3, other than to submit that the insurers reliance on the decision of Dungan is misplaced because in this case the Tribunal Member's reasons identify that there are other bases for the psychiatric assessment than solely pain. This is demonstrable in the defendant’s submission by, for example, the Tribunal Member's statement at [75]:

"[75] In my assessment the appropriate amount for Non-Economic Loss given the Claimant's psychiatric impairment in particular is $350,000.00. In making this assessment I have taken into account, amongst other things :-

a. That the Claimant's impairment has been determined as being chronic.

b. The Claimant's perception that he suffers considerable constant and chronic pain.

c. That the Claimant is obliged to depend on his brother which gives him considerable shame and guilt.

d. That he is a relatively young man and that this accident occurred 8 years ago.

e. That the Claimant has to undergo so many medical assessments and delays, not all of which, if any, are of his making.

f. That his dreams of a career in engineering, of travel and possibly academe by undertaking a Phd, have been lost.

g. That his dream of establishing a family, away from his brother, has also been lost."

The insurer’s submissions in reply

93. Some of the insurer’s submissions in reply were repetitions of submissions they had made earlier. I shall not repeat those submissions here.

94. In the insurer’s submission the critical error made by the Tribunal Member in these circumstances is that he found that the physical injuries had resolved by November 2016. The Tribunal Member, then, simultaneously relied on and adopted reasoning in the psychiatric impairment assessments of Assessor Samuels and Dr McClure, both of whom inextricably link the psychiatric injuries to the physical pain symptoms. There is no evident or intelligible path of reasoning that cures this difficulty. There is no explanation as to how the psychiatric impairment remains if the physical injuries had resolved entirely by November of 2016.

95. The insurer submitted that even if, as the defendant would have it the Tribunal Member understood the nature of the argument put to him, the internally inconsistent reasons leave the findings bereft of evident and intelligible justification. The insurer does not raise a merits argument, the insurer seeks a lawful path of reasoning consistent with the obligations upon the Tribunal Member.

96. The insurer finally submitted that its reliance on Dungan is not misplaced. As in that case, the psychiatric injury in this case was inextricably tied to the physical injury, on the Tribunal Member's own findings.

Resolution

97. The Tribunal Member states in no uncertain terms at [70]: “I accept the opinions of Assessor Samuels and Dr McClure … [the defendant] suffers from a considerable psychiatric impairment which includes at least major depression and some symptoms of PTSD”. At [71] he states: “With respect to his physical injuries, I also accept the assessment of Assessor Gliksman, and others that the Claimant did suffer soft tissue injuries to his cervical spine and lumbar spine but that in accordance with the Determination of the MAS Assessor Shane Maloney those injuries had resolved by the time of Assessor Maloney's Certificate on 17 November, 2016.” (Ex A 376)

98. Assessor Samuels writes at page 13 of his reasons under the heading ‘Conclusions’ and subheading ‘Diagnosis and Causation’ “[The defendant] developed pain, depression and anxiety as a consequence [of the accident] and it seems this has worsened over time. Pain appears to be the predominant problem on which he is very focused but he does appear to have accompanying quite significant depressive symptoms.” Dr McClure in his third report under the heading ‘Further Comments’ writes: “The [defendant] has secondary Major Depression and some features of Posttraumatic Stress Disorder (PTSD). His depression is secondary to pain, reduced functioning, guilt and shame.” (author’s emphasis)

99. In essence the insurer’s argument is that these findings inextricably link the defendant’s psychiatric condition to ongoing pain, such that if the pain were to resolve (as the Tribunal Member found it had at [71]) the psychiatric condition can no longer be said to be attributable to the accident. By way of example the insurer offers Dungan in which the respondent’s psychiatric injury was evidenced to be consequent on continuing pain and as the pain from the subject accident was found to be likely to have resolved, the psychiatric injury could no longer be said to be attributable to the accident.

100. The defendant advanced little in response to this argument, other than to say that this matter is not analogous to Dungan as in that matter the psychological injury was entirely caused by pain, whereas in the present matter there are a number of bases for the psychiatric injury, and therefore the insurer’s contention is misguided.

101. In Dungan at first instance ([2020] NSWDC 399) the primary judge found at [90] (cited in Dungan at [24]):

“[90] The preponderance of the medical evidence suggests that the type of injury and the way in which it was suffered should have resolved itself well and truly by now. I refer here not only to the evidence of Drs Coroneos and Keller, but also the evidence of Associate Professor Fearnside who indicated that an injury of this kind would have naturally have stabilised, improved or resolved.”

102. Assessor Moloney’s determination was, in my opinion, not as definitive as this passage in Dungan suggests the evidence was in that matter. Under the heading ‘Determinations’ Assessor Moloney stated at pages 8-9 of his certificate (Ex A 74-75):

“Mr Al Tabaibeh suffered a soft tissue injury to his neck, chest and lower back at the time of the accident.

…

It is my opinion that the soft tissue injuries were not severe enough to require domestic assistance.

At the time of my examination, it was not possible to make an accurate impairment assessment for physical injuries. The dramatic reduction in range of movement of all body parts assessed is not consistent with soft tissue injuries to the cervical, lumbar spine and right shoulder. The treating GP wrote a report nearly 2 years after the accident recording that movements of the spine were, quote a ‘little restricted’. There are no anatomical or pathological reasons for such a gross loss of range of movement, as I have assessed today, compared to previous recordings within two years of the accident. I have read the certificate from Assessor Mason on the psychological injuries regarding treatment causation, and whether they are reasonable and necessary and consider that this psychological impairment is the only way to determine treatment.”

103. Here Assessor Moloney admits he was unable to properly assess the defendant’s physical injuries, and while he states that the defendant’s reduced range of motion is not consistent with soft tissue injuries and later goes on to say domestic assistance is neither reasonable nor necessary for the defendant’s physical injuries, he does not, and seemingly suggests he cannot due to the paucity of his physical assessment, opine that the defendant’s physical injuries have entirely resolved.

104. Assessor Gliksman, in my view, offers a far more definitive conclusion as to the resolution of the defendant’s physical injuries at page 9 of his 25 January 2020 certificate where he stated under the heading ‘Determinations’:

“It is medically credible that Mr Al-Tabaibeh suffered transient soft tissue injuries to the cervical spine and possible the lumbar spine, in the subject motor vehicle accident

…

The natural history of such soft tissue injuries as might have been sustained, is for full recovery within two to three months of their occurrence.

However extending the maximum benefit of medical doubt in Mr Al-Tabaibeh’s favour, it is clear that by the date of assessment by Dr Shane Maloney (16 November 2016), all clinical conditions that might have been attributed to the subject motor accident had resolved.”

[emphasis in original]

105. Also of note are the opinions of Assessor Marsh and Dr Home. In the certificate of Assessor Marsh issued on 1 September 2015 he states: “the claimant presented as someone with marked exaggerated pain behaviour and a number of non-organic features indicative of a chronic pain syndrome. Unfortunately, this make it very difficult, if not impossible, to assess the exact extent of any persisting physical injury.” (ExA 37) In the report of Dr Home issued on 13 July 2018 he finds a 0% WPI in relation to the defendant’s cervical spine noting there is no muscle spasm or muscle guarding and that there is symmetrical spinal motion, a 5% WPI in relation to the defendant’s lumbar spine, and in relation to the right shoulder concludes the defendant “was voluntarily self-limiting range of shoulder motion.” (Ex A 158-9)

106. Whether taken together this is ‘sufficiently precise and definite’ medical evidence that establishes the defendant’s physical injuries should have resolved is a difficult question. This is especially so given the conclusions of a number of assessors and psychiatrists, including Dr McClure and Assessor Samuels upon whom the Tribunal Member specifically relied, who accept that the defendant does in fact suffer pain and in the absence of any evidence for this pain’s genesis other than the accident.

107. A further complication arises upon consideration of whether conditions such as Post-Traumatic Stress Disorder (“PTSD”), which the defendant has intermittently been said to suffer from, might subsist despite the resolution of his pain and how that subsistence can or cannot be said to be attributable to the accident. Such a question was not addressed in Dungan as in that matter the psychiatric condition was conclusively found to be secondary to pain.

108. However despite these difficulties, and despite the differences between this matter and Dungan, I accept the insurer’s submission that the Tribunal Member’s findings contain an internal inconsistency. While I appreciate the defendant’s argument that the Tribunal Member found the defendant’s psychiatric injuries had many bases, the definitive conclusion of Dr McClure is that the defendant’s psychiatric injuries are secondary to his physical injuries. The Tribunal Member’s explicit acceptance of that opinion, his conclusion that the defendant was exaggerating or feigning his physical disabilities, and his contention that the defendant’s physical injuries had resolved by November 2016 cannot be reconciled with each other. The Tribunal Member has accordingly fallen into error by failing to expose his actual path of reasoning, and by virtue of his decision containing an internal inconsistency: Wingfoot at [55]; IAG Limited v Sleiman [2017] NSWSC 1346 at [29]. This ground of judicial review is made out.

(4) Calculation of economic Loss

The insurer’s submissions

109. Finally the insurer noted that the Tribunal Member made a reduction of 25% of the claim for economic loss, to account for retained earning capacity at [83] and this was supported by reasons to the effect that it was as "determined by Assessor Samuels". However, the report of Assessor Samuels said that the retained earning capacity of no more than 20 hours per fortnight was due to physical problems as well as psychiatric problems.

110. Therefore in the insurer’s submission the Tribunal Member failed to give any reasons to explain why he has not made any adjustment to the retained earning capacity figure suggested by Assessor Samuels, to account for his own findings that the defendant’s physical problems had resolved by November 2016.

111. The insurer opined that given that the Tribunal Member had determined that there were no physical injuries that were ongoing, it was a critical issue that needed to be dealt with, if the opinion of Assessor Samuels was going to be relied upon to support the award. It must be the case based on Assessor Samuels' opinion, that the 75% loss of earning capacity was at least in part not attributable to the psychiatric injury.

112. In the insurer’s submission the Tribunal Member failed to expose his actual path of reasoning and failed to explain how the opinion of Assessor Samuels actually supports the finding of 25% retained earning capacity for injuries that he has determined are causally related to the accident.

The defendant’s submissions

113. The defendant’s submission in relation to this argument began with reference to a number of cases.

114. In Medlin v State Government Insurance Commission (1994) 182 CLR 1, McHugh J identified the orthodoxy in respect of loss of earning capacity, as compared to loss of earnings, and the fact that earning capacity is an intangible asset, at [7]:

"[7] In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because "an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss". Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred."

115. In State of New South Wales v Moss (2000) 54 NSWLR 536 (“Moss”), Heydon J identified that the task of assessing a loss of earning capacity is not precise and involves the assessment of the diminution earning capacity, which is a task that includes estimation and evaluation, at [71] and [87]:

“[71] Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18], said:

"it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss ... The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant's wrongful act."

In Malec v J C Hutton Ptv Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said: "the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history." They approved Lord Diplock's statement in Mallett v McMonagle [1970] AC 166 at 176: "in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages ...". The majority (Deane, Gaudron and McHugh J J) in Malec vJC Hutton Ptv Ltd said at 643 that when the law takes 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 in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on "slender materials": Callaahan vWmC Lvnch Ptv Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. That language, unlike the reference to permitting "guess work or speculation" elsewhere in that judgment, was not criticised in ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves "guess work rather than estimation": Jones v Schiffman (1971) 124 CLR 303 at 308: see also Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792 per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as "matters of prophecy or judicial guesses" in Paul v Rendell (1981) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tvne and Wear County Council [1986] 1 All ER 567 at 570:

"when it comes to estimating loss of earning capacity there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiffs handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge's assessment will be few and far between, for there Is no established range or standard against which to measure the judge's award."

…

[87] In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.... The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury's task satisfactorily.”

116. The defendant submitted that the Tribunal Member set out the material medical opinions from Dr McClure and Medical Assessor Samuels at [81]-[82] and his path of reasons show that the 25% discount for residual earning capacity was made having regard to the finding by Medical Assessor Samuels about residual capacity, as extracted at [82]. The Tribunal Member then set out his findings as to past economic loss, which includes the finding and reasoning for the 25 per cent reduction for residual earning capacity at [83].

117. The Tribunal Member's path of reasons for his own conclusion is, in the defendant’s submission clearly identified in paragraph 83: "I therefore deduct 25% of that claim as being Mr Al-Tabaibeh's residual capacity as determined by Assessor Samuels".

118. The defendant correspondingly submitted that in the task of assessing impairment of earning capacity, the Tribunal Member's path of reasons comply with the reason obligation.

119. In relation to the argument that the Tribunal Member should have made an adjustment to the 25%, the defendant submitted that the adoption of 25% reflects the nature of task; it is not precise and it involves the assessment of the diminution earning capacity, which is a task that includes estimation and evaluation. The Tribunal Member's path of reasons clearly outlines the steps of his reasoning.

120. The defendant finally submitted that given the nature of the task of assessing impairment of earning capacity, further dissecting the 25% to explain how it accounted for the physical findings was not required. The very finding of 25 per cent demonstrates that the Tribunal Member understood that precision was not required, and that the task involved estimation and evaluation.

The insurer’s submissions in reply

121. The insurer submitted that it has set out the complaint comprehensively in its submissions at [53]-[58], and that the defendant does not respond to the contentions of the insurer in those paragraphs. The defendant's contention is that there was no need for the Tribunal Member to explain his findings. That is to say, the defendant contends that there is no requirement for further reasons because the Tribunal Member has so found his own conclusion.

122. The insurer submitted that the problem with the defendant’s argument that "the very findings of 25 per cent demonstrates that the Tribunal Member understood that precision was not required, and that the task involved estimation and evaluation" is that the figure of 25% was not something that was impressionistic and not possible to specifically explain. Rather, the figure was explicitly stated to be "as determined by Assessor Samuels". Assessor Samuels had said that the defendant's retained earning capacity was in the order of 20 hours per fortnight.

123. The Tribunal Member was not required to assess residual earning capacity with precision. Yet, he chose to do so here, relying on a specific finding by a medical assessor to base his award. Once he chose to go down that path, it was incumbent upon him to explain why he had adopted that amount of retained earning capacity in circumstances where his other findings conflicted with the medical assessor's underlying findings.

124. The defendant has not pointed to an explanation in the Tribunal Member's reasons to explain the coexistence of the 25% discount and the findings in relation to the resolution of physical symptoms which were said to be causing the psychiatric impairment.

Resolution

125. I accept the defendant’s submission that the task of assessing a loss of earning capacity is not precise and its lack of precision should not mean that the task is abandoned: Moss at [87].

126. However, at [83] of his decision the Tribunal Member states: “I therefore deduct 25% of that claim [$1,682.00 net after tax made by the defendant] as being Mr Al-Tabaibeh’s residual capacity as determined by Assessor Samuels…” The determination by Assessor Samuels is at page 16 of his decision where he writes “[the defendant] would not be able to work more than one or two days at a time and certainly would not be able to work more than 20 hours in a fortnight but this is because of both his physical problems as well as his depression and anxiety.” The 25% figure referred to by the Tribunal Member therefore reflects an adoption of Assessor Samuels’ conclusion that the defendant can work 10 hours a week (i.e. 1/4 of a normal 40 hour working week) and therefore any damages for loss of earning capacity must be assessed on the basis that the defendant has only lost 75% of that capacity.

127. Given Assessor Samuel’s explicit statement that the 25% figure is reflective of both physical and psychological injuries, I agree that the Tribunal Member, by force of his duty to provide reasons, was obliged to explicate why he has adopted this figure without any adjustment to reflect his finding that the defendant’s physical injuries had resolved. The Tribunal Member’s failure to do so was a failure to expose his actual path of reasoning.

Judicial Ground (2) – finding not based on evidence

128. The second ground of judicial review raised by the insurer is that the Tribunal Member’s finding that Assessor Samuels was of the view that the defendant “was exaggerating or feigning his injury” is based on no evidence. The following principles are relevant.

129. Findings of fact must be supported by logically probative evidence: Swain v Waverley Municipal Council [2005] HCA 4, (2005) 220 CLR 517 (“Swain”), Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 44 FLR 41; Minister for Immigration v Eshetu (1999) 197 CLR 611.

130. When considering the no evidence ground, Hall J stated in IAG Limited trading as NRMA Insurance v Tran (2015) 70 MVR 105 at [15]:

“[15]

…

43. The ‘no evidence’ ground was considered by the Court of Appeal in Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 at [87]-[90] and [1]-[3]. Ward JA stated in that case (at [88]-[90], with Macfarlan and Hoeben JJA agreeing):

88. The test is not as to whether there was any evidence at all.

89. McHugh J, in the majority in Naxakis, said:

“...So the question is, as Willes J said in a non-negligence context, [in Ryder v Wombwell] “not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.”

131. Similarly, in Swain it was accepted that the question was not whether there was literally no evidence to support the finding of fact, but whether there was more than a mere scintilla of evidence favouring such a finding. Kirby J (in dissent) emphasized (at [213]) that:

“[213] … The “no evidence” ground, as it is currently named, bears little relationship to the concept which it is intended to signify. More properly, it should be called the “no reasonable evidence” ground. That is how I mean the expression to be understood.”

132. More recently in Gordian Runoff Limited v Ozurumba [2020] NSWSC 774 (“Ozurumba”), Fagan J stated at [34]:

“[34] In the circumstances of this case it was the assessor’s legal duty to refer to the evidence from the insurer and to explain why it was not acted upon: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [121]; Qushair v Raffoul [2009] NSWCA 329 at [52](iii); Alchin v Daley [2009] NSWCA 418 at [35]-[47]. This ground of review is subsidiary, in relation to the assessment of past economic loss, because I have found that there was no evidence to sustain the factual conclusions upon which the assessor made his calculations. Accordingly, no sensible reasons could have been given for those conclusions.”

The insurer’s submissions

133. In relation to this ground, the insurer submitted that the finding of the Tribunal Member at [70] that he accepts “the view of Assessor Samuels that the Claimant is exaggerating or feigning his physical disabilities” was based on no evidence as Assessor Samuels does not express that view.

134. In the insurer’s submission, Assessor Samuels noted the submissions that were made by the insurer about the surveillance footage but went on to make no comment on his own view of the surveillance and no finding of feigning or exaggeration.

135. The insurer submitted that, given that substantial reliance that the Tribunal Member placed on Assessor Samuels' decision and his apparent lack of understanding of Assessor Samuels’ basis for his opinion, that the finding at [70] has the potential to affect the entirety of the Tribunal Member's decision.

The defendant’s submissions

136. The defendant submitted that the insurer’s formulation of a finding based on no evidence ground is an alternative way of advancing that the Tribunal Member's conclusions in respect of Assessor Samuels are erroneous.

137. The defendant submitted that for the same reasons set out in respect of ground three, there was no error made.

The insurer’s submissions in reply

138. In response to the defendant’s submissions, the insurer submitted that although this ground is based on the same factual scenario as the first, the legal error is plainly distinct.

139. The insurer noted that the defendant did not point to any basis upon which the no evidence ground is or can be defended, as the defendant does not point to any logical or probative evidence that illustrates that Assessor Samuels had in fact expressed his own view that the defendant was exaggerating and/or feigning his physical symptoms.

140. The insurer submitted that it is not a "merits conclusion" to make a finding based on no evidence, but rather is a legal error, and the absence of evidence for this finding is patently critical and afflicts the Tribunal Member 's reliance on Assessor Samuels' in its totality.

Resolution

141. The Tribunal Member stated at [70] that he accepted the view of Assessor Samuels that the defendant is exaggerating or feigning his physical disabilities. The insurer contends that is a view which Assessor Samuel never expressed and therefore the Tribunal Member has made a finding based on no evidence.

142. The insurer’s contention that the defendant may be ‘exaggerating or feigning’ is evidenced by the surveillance footage collected by M & A Investigations.

143. Assessor Samuels first mentions the footage at [6A1] on page 9 of his reasons (Ex A 330) under the heading “Summary of Relevant Additional Documentation Provided for the Further Assessment (2019/04/3093)”. Here Assessor Samuels summarises what the footage shows before stating

“The insurers concluded that there were inconsistencies in the observed behaviour; that the [defendant] had exaggerated his disability; that comparing surveillance footage and the way the [defendant] presented to the doctors suggests gross inconsistency.”

144. Assessor Samuels makes further reference to the surveillance footage at [6A9]-[6A10] saying:

“[6A9] I note the M & A investigation with supporting DCD dated 13 September 2019. There is video material on 22 August 2019 and 13 September 2018, as well as photographs showing variable mobility and positioning of the [defendant’s] hands and his lower back.

[6A10] I note the M & A investigation with supporting DVD dated 25 October 2018 in which Mr Al-Tabaibeh is noted to drive a vehicle.”

145. At no point does Assessor Samuels express that it is his opinion that the defendant is exaggerated or feigning, rather he sets out the evidence he has been provided and then makes no reference to it again. Consequently what is meant by the Tribunal Member stating that he accepts “the view of Assessor Samuels that the Claimant is exaggerating or feigning his physical disabilities” at [70] of his reasons is indeterminable. The Tribunal Member cannot accept a view of Assessor Samuels that Assessor Samuels never expressed himself. This ground of judicial review is made out.

Judicial Ground (3) – failure to respond to substantial and clearly articulated argument

146. The final ground of judicial review raised by the insurer is that the Tribunal Member failed to respond to the insurer’s substantial and clearly articulated argument that Assessor Samuels had not engaged with the content of the surveillance footage. The following principles are relevant.

147. It is a denial of procedural fairness, and a constructive failure to exercise jurisdiction, to fail to respond to a substantial and clearly articulated argument advanced by a party. In Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Basten JA addressed the legal obligation of administrative decision-makers to take particular evidence into account relevantly stating at [19]-[22]:

[19] … In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321, 197 ALR 389, 77 ALJR 1088, [2003] HCA 26 at [24] (Dranichnikov) Gummow and Callman JJ stated:

[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.

[20] A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57 179 ALR 238 [2001] HCA 22 at [81] (Miah) where after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not her Honour continued

“[81] However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of "refugee".

[21] Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the Compensation Act requires that a claims assessor “is, in respect of a claim referred to the assessor for assessment, to make an assessment of … the amount of damages”: s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function.

[22] The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 ; 273 ALR 122 ; 119 ALD 446 ; [2010] HCA 48 at [35] (SZJSS).”

148. In De Gelder, Gleeson JA (with MacFarlan JA agreeing) held that the review panel in that case had failed to respond to a substantial argument raised by the defendant because it misunderstood a body of evidence and this was a jurisdictional error, stating at [109]:

"[109] Here the Panel failed to respond to a substantial argument based on evidence relied upon by Mr De Gelder as to the causation of his thoracic spine injury by the motor accident. It may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under s 58(1)(d), because it misunderstood a significant body of evidence relevant to its non-medical determination. What the Panel did amounted to a jurisdictional error. The Panel's decision recorded in its certificate is to be regarded as a purported and not real exercise of its statutory function in s 58(1)(d), leaving that statutory function unexercised, and the Authority and the Panel liable to the relief granted by the primary judge by way of judicial review Ex parte Hebburn Ltd, Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 (Jordan CJ)

The insurer’s submissions

149. The insurer submitted that the Tribunal Member failed to respond to a substantial and clearly articulated argument, the substance of which was that Assessor's Samuels had not engaged with the content of the surveillance footage in forming his opinion. The following argument was submitted to the Tribunal Member at [29] of the insurer's written submissions:

“In response to the insurer's firm position about the claimant's credit, the claimant will no doubt submit that an assessor would be comfortable accepting the claimant's evidence because Assessor Samuels accepted that he suffers PTSD and major depression. With respect to Assessor Samuels, whilst he has referred to the surveillance material and to the insurer's submissions made in relation to it, he did not engage with the contents of the surveillance in forming his opinion. He concludes that is difficult to be clear whether or not the claimant suffers PTSD on the basis of his presentation, but he goes on to accept that the claimant must have given a clearer picture of PTSD to Dr Jungfer, Glozier, Mason and McClure.”

150. The insurer submitted that the Tribunal Member had a statutory duty to take these submissions into account.

151. The insurer submitted that while the Tribunal Member referred to the insurer's argument (at [63]) he then effectively dismissed it, saying that Assessor Samuels did engage with the surveillance (at [67]). The insurer submitted that this evidences that the Tribunal Member did not actually respond to the substance of the insurer's argument, but rather he just dismissed it on what the insurer submits was an erroneous basis. In doing so, in the insurer’s submission he denied the insurer procedural fairness, and constructively failed to exercise his jurisdiction.

The defendant’s submissions

152. The defendant submitted that the insurer’s contention that the Tribunal Member failed to engage with the insurer’s articulated case is answered by the fact that the Tribunal Member did in fact engage with the insurer’s articulated case, and found against it at the endpoint merits stage.

153. The defendant then set out what he deemed to be relevant background to the findings of Assessor Samuels contention. The defendant noted that before his claim was assessed by the Tribunal Member, he had been examined on many occasions over many years by Medical Assessors. The defendant noted that the insurer had arranged a consultation with their own independent medico-legal expert, Dr McClure and while the defendant was travelling to and then leaving that consultation video surveillance was obtained which was placed before Assessor Samuels along with the insurer’s submissions. Following his review of the materials, Assessor Samuels assessed the defendant’s WPI at 15%.

154. The defendant also noted that the insurer also provided Dr McClure with that video surveillance and the determination of Assessor Samuels, but Dr McClure was not critical of Assessor Samuels' determination, and himself considered that the defendant’s WPI continued to exceed the greater than 10% WPI threshold.

155. In the defendant’s submission, the Tribunal Member was patently alive to the insurer’s submission on this point and this is evidenced by his setting out the insurer’s position in a fully formed manner at [61]-[63].

156. The defendant further submitted that the Tribunal Member, in accordance with his reasons obligation, and obligation to set out the path of reasons for his actual decision, dealt with the insurer’s argument and identified why he rejected it at [64]-[67].

157. The defendant noted that as the endpoint conclusion of Assessor Samuels was to a similar effect as the endpoint conclusion of Dr McClure, the Tribunal Member also analysed the implications in respect of Dr McClure at [68]-[69] and set out further conclusions at [70]-[71].

158. Therefore in the defendant’s submission, in this case, it can be seen that (a) the Tribunal Member properly understood insurer’s contention in respect of Assessor Samuels and the video surveillance, (b) the Tribunal Member properly engaged with that contention, (c) the Tribunal Member set out the path of his reasons for his own conclusions as to what Assessor Samuels had done in respect of video surveillance, and (d) the Tribunal Member then made a finding adverse to the insurer at the endpoint merits stage.

159. The defendant finally submitted that as forensically disappointed as the insurer may be with the merits outcome, there is no error, reasons obligation related or otherwise, in the legality of the Tribunal Member's decision-making on this topic.

The insurer’s submissions in reply

160. In reply the insurer submitted that this ground of judicial review is a distinct legal ground to the first ground.

161. The insurer submitted that the critical question is whether the Tribunal Member had, in substance, engaged with the substantial and clearly articulated argument. In this respect, in the insurer’s submission, the third ground goes unanswered by the defendant.

Resolution

162. The Tribunal Member had regard to the insurer’s submission that Assessor Samuels had not engaged with the surveillance footage in forming his opinion at [63]-[67].

163. While I accept that the Tribunal Member’s consideration of this argument is brief, he specifically addresses the insurer’s argument at [63] saying “The Insurer submits that while Assessor Samuels has referred to the surveillance material and to the Insurer’s submissions made in relation to it, he has not engaged with the content of the surveillance in forming his opinion”, and specifically rejects that argument at [67] saying “My conclusion is that Assessor Samuels did engage with the surveillance videos and paid them the proper respect in coming to his Determination.” Regardless of whether Assessor Samuels did in fact engage deeply with the content of the surveillance footage, the Tribunal Member appears to have understood the insurer’s argument and specifically rejected it on the merits.

164. It must be noted, as it was by the insurer earlier in this judgment, that administrative decisions are not to be over scrutinized (Wu Shan Lian at 271-272) and that under the MAC Act specifically there is a statutory requirement of brevity of reasons pursuant to s 94(5) of the MAC Act and cl 18.4.3 of the Guidelines.

165. It is my opinion that the Tribunal Member did in fact respond to the insurer’s substantial and clearly articulated argument, and it would be to read the Tribunal Member’s decision with an eye keenly attuned to error to regard otherwise. This ground of judicial review fails.

Summary of conclusions

166. In my view the Tribunal Member has firstly failed to provide lawful reasons by virtue of his decision containing an internal inconsistency, and by failing to expose his actual path of reasoning, and secondly the Tribunal Member has made a finding not based on evidence by ‘accepting’ a view of Assessor Samuels that Assessor Samuels himself did not express. These are errors of law on the face of the record. The decision should be set aside.

Discretion to remit

167. Neither party made any submission on this topic. While I am reluctant to remit this matter for yet another assessment in the Commission, in order to be successful in an application for judicial review the alleged error must be material to the decision. The test for materiality is whether the applicant can show that “compliance could realistically have resulted in a different decision”: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”) at [45]-[46] per Bell, Gageler and Keane JJ. The question of the materiality is a question of fact in respect of which the applicant, here the defendant, bears the onus of proof: SZMTA at [46]

168. I cannot conclude that these errors could not have made any difference to the result. In these circumstances regrettably I am obliged to refer the matter back to the Commission for redetermination. The insurer seeks that the matter be referred to a different assessor, however as there is no allegation of bias it is a matter for the Commissioner to determine the appropriate tribunal member, not this Court.

Result

169. The decision of Tribunal Member Alan Cowley dated 4 March 2021, is set aside and the matter is referred back to the Commission.

Costs

170. Costs are discretionary. Costs follow the event. The plaintiff is to pay the defendant’s costs on an ordinary basis.

The Court orders:    

1. The decision of the third defendant, Tribunal Member Allan Cowley, dated 4 March 2021 is set aside.

2. The matter is remitted to the second defendant, the Personal Injury Commissioner, for determination according to law.

3. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

Amendments

23 March 2022 - Representation amended.

Decision last updated: 23 March 2022