Insurance Australia Limited t/as NRMA Insurance v Le

[2025] NSWCA 121

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Insurance Australia Limited t/as NRMA Insurance v Le [2025] NSWCA 121

Hearing dates:

23 May 2025

Date of orders:

06 June 2025

Decision date:

06 June 2025

Before:

Mitchelmore JA at [1];
Stern JA at [2];
Ball JA at [72]

Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the costs of the appeal.

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel determined the question of causation according to law — where primary judge did not so err

ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel exposed its actual path of reasoning — where primary judge did not so err

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5E, 5D

Motor Accident Injuries Act 2017 (NSW), ss 1.6, 1.9, 3.11, 3.28, 4.4, 7.17, 7.20, 7.23(1), 7.26, 10.2, cl 2(e) of Sch 2

Supreme Court Act 1970 (NSW), s 101(2)(r)

Cases Cited:

Allianz Australia Insurance Limited v Mackenzie [2014] NSWSC 67

Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104

Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372

EMI (Australia) Ltd v Bes [1970] 2 NSWR 238

Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190

Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287

Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71

Metro North Hospital and Health Service v Pierce [2018] NSWCA 11

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29

Siddik v WorkCover Authority of NSW [2008] NSWCA 116

Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720

Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19

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

Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Category:

Principal judgment

Parties:

Insurance Australia Ltd t/as NRMA Insurance (Appellant)
Duc Thuong Le (First Respondent)
Review Panel constituted under section 7.26 of the Motor Accident Injuries Act 2017 (Second Respondent)
President of the Personal Injury Commission of New South Wales (Third Respondent)

Representation:

Counsel:
J Gumbert with M J Jones (Appellant)
E G Romaniuk SC with B Necovski (First Respondent)

Solicitors:
Meridian Lawyers (Appellant)
State Law Group (First Respondent)
NSW Crown Solicitor (Second and Third Respondents) (Submitting appearance)

File Number(s):

2024/00351444

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 1022

Date of Decision:

19 August 2024

Before:

Price AJA

File Number(s):

2023/00425874

HEADNOTE

[This headnote is not to be read as part of the judgment]

Duc Thuong Le was injured in a motor vehicle accident at around 3.20 am on 7 October 2018 when the car in which he was a passenger collided at speed first with another car and then with a street sign and a tree in York Street, Sydney. He sustained a number of injuries and submitted a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act). A dispute arose between Mr Le and NRMA (the CTP insurer of the vehicle at fault in the accident) as to whether Mr Le suffered only minor injuries (the pre-2023 name for what are now called “threshold injuries” in s 1.6 of the Act) in the accident. If so, his entitlement to benefits would be significantly limited under ss 3.11 and 3.28 of the Act and he would have no entitlement to common law damages under s 4.4 of the Act.

The dispute included whether the closed head injury with traumatic brain injury and amnesia, which Mr Le had been diagnosed as suffering, was caused by the accident as opposed to being caused by Mr Le’s conduct in the immediate aftermath of the accident. NRMA has never disputed that, if caused by the accident, a traumatic brain injury is not a threshold injury as defined in s 1.6 of the Act.

That dispute was referred for medical assessment and subsequently came before a review panel of the Personal Injury Commission. Both the medical assessor and the review panel found that Mr Le’s traumatic brain injury was caused by the accident. NRMA sought judicial review of the review panel’s decision. The primary judge rejected NRMA’s contentions that the review panel’s decision was infected by jurisdictional error or error of law on the face of the record, including on the basis of inadequate reasons.

The principal issues before this Court on appeal were whether the primary judge erred in finding:

1. that the review panel determined the question of causation according to law (alleged to be either jurisdictional error or error of law on the face of the record); and

2. that the review panel exposed its actual path of reasoning by which it arrived at the opinion it formed on the medical question referred to it (alleged to be either jurisdictional error or error of law on the face of the record).

The Court (Stern JA, Mitchelmore and Ball JJA agreeing) held, dismissing the appeal:

As to issue (i)

1. The review panel did not shift the burden of proof on causation. It was clearly cognisant that the burden was on Mr Le as was apparent from its conclusion that it was satisfied as to causation on the balance of probabilities: [47]-[49].

   Allianz Australia Insurance Limited v Mackenzie [2014] NSWSC 67, distinguished.

2. The review panel found that the accident caused Mr Le’s brain injury and separately and irrespective of this, that the impact of the accident caused Mr Le’s agitation and conduct in striking his head on the ground which itself made a material contribution to his traumatic brain injury: [50].

3. A finding of causal connection as between an accident or event and a medical condition or injury does not depend upon the expert opinion of a medical professional that such connection is established. Where the expert evidence is only that a causal connection is possible, the question arises whether the expert opinion can be eked out by common knowledge so that the inference as to causation may be drawn. Given its constitution, the review panel is clearly required to be, and is, an expert body. That experience and training is likely to have some bearing even where, as in this case, it was not suggested that medical science alone could provide any clear answer to the question of causation raised on assessment: [36], [52]-[60].

   EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190; Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19, applied.

   Metro North Hospital and Health Service v Pierce [2018] NSWCA 11; Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465; Siddik v WorkCover Authority of NSW [2008] NSWCA, referred to.

4. Given that Mr Le’s self-inflicted head striking provided a second plausible cause of his traumatic brain injury, it was necessary for the review panel to evaluate the possibility that it was only the self-inflicted head striking that caused the injury. Given the absence of any such evaluation in the review panel’s reasons, the review panel’s conclusion that Mr Le’s traumatic brain injury was directly caused by the accident was legally erroneous as it was not properly supported by rational inferences based upon the circumstances of the case. However, that error was not material, as the review panel’s additional finding as to causation (being that the impact of the accident caused Mr Le’s agitation and conduct in striking his head on the ground which itself made a material contribution to his injury) amply supported its conclusion that the accident caused Mr Le’s traumatic brain injury: [61]-[65].

   Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287, referred to.

As to issue (ii)

(5) The error in the review panel’s finding as to Mr Le’s traumatic brain injury having been caused in the accident was one of reasoning (as set out at (4)) rather than one of an inadequacy of reasons: [66].

1. There was no gap in reasoning to be filled in the review panel’s reasons as to its finding that the impact of the accident caused Mr Le’s agitation and conduct in striking his head on the ground which itself made a material contribution to his traumatic brain injury. This finding was both rational and clear on its face. It did not leave anything of substance to inference. The primary judge did not err in finding that the review panel’s reasons met the requisite standard: [67]-[69].

   Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, referred to.

JUDGMENT

1. MITCHELMORE JA: I agree with Stern JA.

2. STERN JA: Duc Thuong Le was injured in a motor vehicle accident at around 3.20 am on 7 October 2018 when the car in which he was a passenger collided at speed first with another car and then with a street sign and a tree in York Street, Sydney. He sustained a number of injuries and submitted a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (the Act). A dispute arose between Mr Le and NRMA (the CTP insurer of the vehicle at fault in the accident) as to whether Mr Le suffered only minor injuries (the pre-2023 name for what are now called “threshold injuries” in s 1.6 of the Act) in the accident. If so, his entitlement to benefits would be significantly limited under ss 3.11 and 3.28 of the Act and he would have no entitlement to common law damages under s 4.4 of the Act.

3. The dispute included whether the closed head injury with traumatic brain injury and amnesia, which Mr Le had been diagnosed as suffering, was caused by the accident as opposed to being caused by Mr Le’s conduct in the immediate aftermath of the accident. NRMA has never disputed that, if caused by the accident, a traumatic brain injury is not a threshold injury as defined in s 1.6 of the Act.

4. That dispute was referred for medical assessment and subsequently came before a review panel of the Personal Injury Commission (the Commission). Both the medical assessor and the review panel found that Mr Le’s traumatic brain injury was caused by the accident. NRMA sought judicial review of the review panel’s decision. The primary judge rejected NRMA’s contentions that the review panel’s decision was infected by jurisdictional error or error of law on the face of the record, including on the basis of inadequate reasons: Insurance Australia Limited t/as NRMA Insurance v Duc Thuong Le [2024] NSWSC 1022 (J). NRMA appeals against that decision, relying upon two grounds of appeal:

1. The primary judge erred in finding that the [review panel] determined the question of causation according to law.

2. The primary judge erred in finding that the [review panel] exposed its actual path of reasoning by which [it] arrived at the opinion it formed on the medical question referred to it.

5. Both grounds were alleged to be either jurisdictional error or error of law on the face of the record. As to ground two, this Court recently held in Allianz Australia Insurance Limited v Yangzom [2025] NSWCA 104 at [11] (Stern JA, Leeming and Kirk JJA agreeing) that an inadequacy of reasons:

“[I]s generally considered not to be jurisdictional. In the case of bodies other than courts, the issue will be whether there is a statutory obligation to give reasons and, if so (in this case, s 7.23(7) of the Act) whether it has been complied with: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] and Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 (“Vegan”) at [130] (Basten JA, Handley and McColl JJA agreeing).”

6. As this is a court of error, NRMA must persuade this Court that the primary judge was in error. For this purpose, it is necessary for this Court to consider whether the primary judge erred in holding that there was no vitiating error in the review panel’s decision. This is a question on which there can be only one, right, answer. The standard of appellate review is thus the correctness standard: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30.

7. Given the value of Mr Le’s potential claims, it is clear that leave to appeal is not required: Supreme Court Act 1970 (NSW), s 101(2)(r).

8. For the reasons set out below, the appeal should be dismissed.

Factual background

9. There is no controversy about the background facts.

10. The car in which Mr Le was a passenger was travelling at around 100 kilometres per hour. After colliding with the rear of a car that was travelling relatively slowly in the same direction, it lost control, spinning 360 degrees, colliding with the “entire driver’s side” of the other car and then mounting the footpath before knocking over a street sign and colliding with a tree. Constable Giblin, a police officer who attended the scene at approximately 3.30 am and viewed CCTV footage of it, described it as a “quite forceful” collision causing “quite a bit of damage”. The front windshield of the car that Mr Le was travelling in was cracked, the front of the car was completely caved in and there was also some damage to the passenger side of the car. However, the primary damage was said to be to the front of the car. Mr Le was in the rear seat on the driver’s side of the car at the time of the accident.

11. Mr Le has post-traumatic amnesia so does not have any recollection of the circumstances of the accident or its immediate aftermath. The first clear recollection he has is waking up in intensive care on around 9 October 2018. He is thus unable to give any evidence as to how his traumatic brain injury was sustained and there was no expert or other evidence before the review panel detailing the forces that would have been experienced by Mr Le and the mechanism by which these may have caused his traumatic brain injury, or as to what if anything within the vehicle Mr Le’s head may have collided with in the accident. The evidence was completely silent as to such matters. Instead, the evidence as to the circumstances of the accident came from short statements given to police by onlookers (Michael Hughes and Caitlin Hennessy), a somewhat sparse police report, a record of interview between Penelope Berman (an insurance claims investigator) and Constable Giblin from 29 November 2018 (around seven weeks after the accident), the ambulance electronic record, and St Vincent’s Hospital records.

12. Mr Hughes, who heard the accident and then looked over, said in his short statement that he saw Mr Le banging on the window and trying to get out of the car. Mr Hughes said that he could not get the driver’s side passenger door open and heard a hiss from the bonnet area, so he smashed the window to enable Mr Le to crawl out of the car. Mr Hughes, who said he had himself had about ten alcoholic drinks that night, thought that Mr Le may have been intoxicated as he appeared to have erratic behaviour and was mumbling random sentences. Mr Hughes said that Mr Le ran to the middle of the road and was walking in circles, then became aggressive and was yelling.

13. Ms Hennessy, who said that she had had three vodka raspberries over six hours that night, said in her short statement that Mr Le “seemed under the influence”, and was erratic, pacing, yelling and agitated. She said after the police arrived Mr Le “continued to yell and – and tried to bang his head on the ground.”

14. Constable Giblin told Ms Berman that it was quite a chaotic scene when he got there. He also said that Mr Le was standing in the middle of the road and was “behaving erratically”. He tried to lead Mr Le off the road, which Mr Le resisted, so he then pulled Mr Le onto the road and restrained him on the ground. At that point Mr Le “started beating his head onto the ground saying, ‘[l]et me help you. Let me help you.’” A bystander then held Mr Le’s head to the ground to stop him from beating his head on the ground but “he continued to do so.” When asked what injuries Mr Le sustained as a result of the accident versus what he did to himself, Constable Giblin said:

“It’s hard to say. He – we noticed he had a seatbelt cut – sorry a seatbelt bruise once the ambos cut his shirt off. He had a bruise indicating that it was a drivers – a driver’s side seatbelt or what we believed the result of a seatbelt injury. After that it’s – it’s hard to say. His visible – and like, he didn’t have – I think it’s – it all happened so quickly when we arrived but I don’t believe he had any head injuries that I could see prior to him beating his head on the ground. He had to be heavily sedated by paramedics, so I believed that he was drug affected at the time as well. His eyes were rolling into the back of his head. He was frothing at the mouth. I was very worried for him, so were the ambos.”

15. The following exchange occurred during the interview of Constable Giblin by Ms Berman:

“Q136   Head injury from his own banging his head?

A136   I believe so. I don’t recall seeing a head injury when I first spoke with him, but it was a – it all happened quite quickly. But, given the force that he was hitting his head on the ground I would say that the injury that I saw was sustained during that because he – it was done repeatedly at least a dozen times.

…

Q140    Okay. So, do you think drugs and alcohol are a factor in this?

A140   I believe – I believe that he appeared drug and alcohol affected. As to whether or not he was actually drug and alcohol affected I can’t answer. But, from my experience of dealing with people who are drug and alcohol affected he showed signs of, yeah, erratic behaviour, aggression, physically his eyes rolling back into his head, his frothing at the mouth, showed signs of a possible overdose. Yeah. So, I believe that he was intoxicated at the time.”

16. Constable Giblin also said that on the morning of the accident the front passenger had crawled out through the window, suggesting that that door was not functioning after the accident. He was not sure how the driver got out of the vehicle. Both the driver and front passenger ran from the scene and have not been identified.

17. The ambulance electronic record indicated that the paramedics got to Mr Le at 3.35 am at which time he was being held prone to the ground by three police officers. They noted right forehead bruising, altered conscious state and that Mr Le’s behaviour was agitated. They said he was foaming at the mouth and queried if he was drug or alcohol affected. At first his Glasgow Coma Scale (GCS) was 12 (out of a maximum of 15). After Droperidol was administered at 3.40 am, Mr Le became very drowsy and his GCS dropped to 3 (being the lowest possible score). Seizure-like activity was then observed on the way to St Vincent’s Hospital.

18. The hospital discharge summary recorded that fluctuating level of consciousness with agitation had been observed and that seizure activity had also been observed at the scene of the accident. A urine drug screen tested positive for benzodiazepines, cocaine and amphetamines. The injuries on scene were described as haematomas to the face and behind the left ear and a seatbelt abrasion. A neurology consult had been arranged to review the cause of the seizure activity. The recorded impression was of seizure in the context of drug use and head trauma.

19. An unsigned certificate of capacity dated 18 October 2018 said that Mr Le had a “[c]losed head injury with post traumatic amnesia for the event”.

20. That diagnosis is consistent with a letter dated 16 November 2018 from Dr Tisch, Consultant Neurologist, who reviewed Mr Le but did not have the accounts from Constable Giblin or the onlookers before him. He said that:

“Duc Thuong suffered probable seizures in the setting of a motor vehicle accident where he likely sustained some degree of closed head injury with traumatic brain injury and amnesia but also was under the effects of stimulant drugs including cocaine and amphetamines detected in his urine. As such, the seizures were provoked by several factors and there is no clear evidence of him having unprovoked seizures or an underlying epilepsy syndrome.”

21. NRMA, both in its initial decision and on internal review, decided that Mr Le was entitled to limited benefits because he only suffered minor injuries in the accident. As regards his head injury, NRMA found on internal review that:

“[T]he head injury and the related clinical symptoms reported are not [causally related] to the motor vehicle accident, but from the subsequent self-inflicted incident.”

Mr Le’s claim and the consequent dispute and medical assessment

22. Mr Le’s claim for statutory benefits was therefore refused and, under s 7.20(1) of the Act, he sought that a medical dispute about his claim be referred by the Commission for assessment. The medical dispute he identified was whether the injuries he sustained in the accident, including the injury to his head that he described as a “[c]losed head injury with post traumatic amnesia”, were minor (now threshold) injuries for the purposes of the Act. That constituted a dispute about a medical assessment matter within the meaning of cl 2(e) of Sch 2 to the Act. It was thus a medical dispute within the meaning of s 7.17 of the Act.

23. The relevant medical assessment matter was that set out in cl 2(e) of Sch 2 to the Act (as it was at the time of the application for referral), namely, “whether the injury caused by the motor accident is a minor injury for the purposes of the Act.” That necessarily includes the question whether the injury was caused by the accident, because s 1.9(1) of the Act provides that the Act only applies in respect of death or injury that is a result of and is caused during, relevantly, a collision. Thus, the words “for the purposes of the Act” in cl 2(e) of Sch 2 not only pick up the definition of “minor injury” in s 1.6 of the Act, they also pick up the limitation on the scope of the Act in s 1.9. It follows that the medical assessment matter includes the question whether the relevant injury was caused by (insofar as is relevant here) the accident.

24. In its reply to Mr Le’s application for a referral for assessment, NRMA submitted that:

“[T]he head injury and related clinical symptoms reported by Mr Le are not causally related to the subject accident, but rather, self-inflicted by Mr Le.”

25. The medical dispute was referred by the Commission for assessment under s 7.20 of the Act. The referral itself was not before this Court but its terms were recorded in the medical assessment certificate, which stated that there was a minor injury dispute to be assessed and that a number of injuries were referred by the Commission for assessment, including:

“Head – Closed head injury with post traumatic amnesia”.

26. As this Court held in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [73]-[78] (Stern JA, Leeming and Kirk JJA agreeing), the dispute referred for assessment under the Act is the dispute which has in fact arisen between the parties. Thus, the dispute referred was not whether Mr Le had sustained a head injury with related clinical symptoms, but whether the head injury that he sustained was caused by the accident as opposed to being self-inflicted. That is so irrespective of whether or not there was any express concession made by NRMA that Mr Le had sustained a traumatic brain injury.

The medical assessment

27. In a certificate issued on 28 August 2022 under s 7.23(1) of the Act, the medical assessor made no reference to the accounts of Constable Giblin, Mr Hughes or Ms Hennessy (which were included in the material before him). He found that the only non-minor injury caused to Mr Le by the accident was:

“Head – mild traumatic brain injury”.

28. Whilst this description of Mr Le’s head injury differed a little from that in the referral for assessment, NRMA did not contend that this was anything other than permissible clarification by the medical assessor.

The review panel’s decision

29. On 16 September 2022 NRMA applied under s 7.26(1) of the Act for review of the medical assessment. NRMA submitted that:

“It may be the case that [Mr Le] solely suffered a brain injury in the vehicle crash, it may be also the case [Mr Le] solely suffered a brain injury due to the self-inflicted head strikes, or it might be there was a brain injury in the vehicle crash as well as self-inflicted head strikes. Regardless, the Insurer submits the Assessor failed to undertake this task. In fact, the Assessor’s Certificate read exactly as if the Assessor was unaware of the self-inflicted head strikes.”

30. The review panel was constituted, as is required by s 7.26(5A) of the Act, by two medical assessors and one member assigned to the Motor Accidents Division of the Commission. As provided for under s 7.26(6A) of the Act, one of the medical assessors on the panel assessed Mr Le on 17 July 2023. It is not suggested in the review panel’s reasons for decision that the findings on examination in any way informed its conclusion as to causation.

31. On 24 August 2023 the review panel issued a replacement certificate under s 7.23(1) of the Act affirming the certificate issued by the medical assessor. In its reasons for decision, the review panel referred to, and I would infer took into account, NRMA’s contentions as to causation of Mr Le’s head injury, the accounts of Mr Hughes (at [12] above) and Constable Giblin (at [14]-[16] above), the ambulance record (at [17] above), some of the St Vincent’s Hospital records (including those summarised at [18] above) and Dr Tisch’s letter (at [20] above).

32. Before turning to the question of causation, the review panel addressed the issue of diagnosis, in particular, whether Mr Le suffered a mild, moderate or severe head injury. It did so notwithstanding that there was no contention before the review panel that Mr Le had not sustained a traumatic brain injury and, as set out above, Dr Tisch’s opinion was that Mr Le sustained such an injury. The review panel observed that there was no evidence of a moderate or severe head injury. It then considered the available evidence, including the fact of some post-traumatic amnesia (which, absent medication and intubation, was likely to have been much shorter than its actual duration of three days), the reported unspecified duration of loss of consciousness, and the fact that Mr Le’s confusion and agitation may have been drug related. It concluded, on the balance of probabilities:

“[T]hat Mr Le sustained a mild traumatic brain injury (TBI) noting the GCS and the seizure activity observed but also considering the normal CT scan, MRI scan and short [post-traumatic amnesia] duration.”

33. NRMA does not challenge this conclusion. It is thus unnecessary to consider NRMA’s contention that there is some inconsistency between the review panel’s reliance here upon “the seizure activity observed”, and its later conclusion in NRMA’s favour, considered at [43] below, that “any seizure, if it occurred” was probably due to the administration of Droperidol or drug withdrawal. Even if there had been inconsistency, contrary to NRMA’s submission it did not in any way infect the review panel’s reasoning as to causation. I would in any event have found that, far from placing any material significance upon the observed seizure activity as a key element in its conclusion as to diagnosis, the review panel was simply explaining that it was satisfied that the traumatic brain injury was only mild notwithstanding the recorded GCS and that seizure activity had been observed.

34. As to causation, having regard to the decision of Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 (Wright J) (“Briggs”), the review panel considered it appropriate to apply the test as to causation set out in Part 6 of the Motor Accident Guidelines issued by the State Insurance Regulatory Authority under s 10.2 of the Act (version 9.1, commencing on 1 April 2023). The review panel then directed itself, having regard to Briggs at [70]-[72], that “the relevant legal test in relation to causation does not require scientific certainty”: at [170]. The passage from Briggs at [70]-[72] was extracted in full in the review panel’s reasons. This included, relevantly, the observation of Spigelman CJ (Davies AJA agreeing) in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 (“Seltsam”) at [143], which was cited with approval by White JA (Macfarlan and Payne JJA agreeing) in Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 (“Pierce”) at [138], that:

“An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.”

35. The passage from Briggs extracted by the review panel also included the observations of Herron CJ (Asprey and Holmes JJA agreeing) in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 (“EMI v Bes”) at 242 that:

“[I]t is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.”

36. I would infer from the review panel’s inclusion of these lengthy extracts from case law in its statement of reasons that the review panel was unable to determine the question of causation solely on the basis of its own medical expertise and also had to rely upon intuitive or inferential reasoning to assess whether Mr Le’s traumatic brain injury was caused by the accident.

37. The review panel also directed itself that the question it had to address was whether Mr Le’s injury “was caused or materially contributed to by the accident” and that “the accident does not have to be the sole cause [of Mr Le’s mild traumatic brain injury] as long as it is a contributing cause which is more than negligible”: at [172].

38. NRMA does not contend that the review panel erred in the manner in which it directed itself as to causation.

39. The review panel found, on the balance of probabilities, that “the accident was a contributing factor which was more than negligible” to Mr Le’s mild traumatic brain injury. The review panel’s key reasoning in this regard was set out in its reasons for decision at [173]:

“Considering the accident occurred at high speed, estimated to be 100 kmph and Mr Le had to extricate himself from the vehicle through a window with the help of a bystander the Panel is satisfied that the accident was a more than negligible cause of the head injury. Further, where there is no evidence to establish, notwithstanding the presence of drugs in his body, that he was agitated prior to the accident, the Panel finds the claimant's agitation and conduct in striking his head on the ground was due to the impact of the accident in addition to the presence of stimulant drugs in his body. The Panel finds on the balance of probabilities that the accident contributed to the claimant's agitation following the accident. The Panel is satisfied, on the balance of probabilities, the accident materially contributed to the [traumatic brain injury], in that it was a contributing cause which was more than negligible.”

40. As is clear, in the first sentence, the review panel concluded that the accident was a legally relevant and at least partial cause of the head injury. By way of background to this finding, there was, before the review panel, the evidence of Dr Tisch which supported a conclusion that the accident could have caused Mr Le’s brain injury. In that factual context, consistent with the case law referred to at [34]-[36] above, the review panel has drawn an inference of causation on the balance of probabilities from the circumstances to which it referred. Necessarily implicit in this finding is a rejection of NRMA’s contention that no such inference could be drawn in circumstances where Mr Le’s self-inflicted striking of his head on the ground provided an alternative, and sufficient, means of causing Mr Le’s brain injury, and was the more likely cause in circumstances where Constable Giblin could not recall seeing any signs of head injury on Mr Le prior to the head striking.

41. In the remainder of [173] of its statement of reasons, the review panel identified an additional basis upon which it was satisfied on the balance of probabilities that the accident was the cause of Mr Le’s traumatic brain injury. The review panel’s use of the word “[f]urther” to introduce this analysis, together with the fact that the causal mechanism considered here is that of “the impact of the accident” and is not predicated upon any brain injury being sustained in the accident itself, makes it clear that this analysis does not depend upon the review panel’s earlier finding (in the first sentence of [173]) that the physical effect of the accident was at least a partial cause of Mr Le’s traumatic brain injury.

42. The review panel’s conclusion that the head striking was itself caused by the accident, and that this materially contributed to the traumatic brain injury, meant that it was satisfied that Mr Le’s traumatic brain injury was caused by the accident irrespective of whether the mechanism of causation was the accident itself (as found in the first sentence of [173]) or the self-inflicted head striking (as found in the remainder of [173]). Either of these two causal mechanisms suffices to sustain the review panel’s conclusion as to causation. Thus, to succeed on appeal, NRMA must establish that both conclusions as to the causation of Mr Le’s traumatic brain injury are affected by jurisdictional error or error of law on the face of the record.

43. The review panel then separately considered whether any seizure was caused by the accident, finding at [176] that:

“Even if [Mr Le] had sustained a seizure the Panel is not satisfied on the balance of probabilities the accident was a contributing factor. The Panel believes any seizure, if it occurred, was most likely drug related, probably due to the adverse effects of Droperidol as it is well known to cause dystonic reaction, uncontrolled repetitive body movements, stiffness, spasm, shaking, loss of balance and even seizure, or due to drug withdrawal, given it is clear from the hospital records [Mr Le] was under the influence of drugs.”

44. If Mr Le had had a seizure consequent upon the accident that may have been relevant to the quantum of his entitlement to benefits under the Act. That may be why after reaching conclusions as to causation of Mr Le’s traumatic head injury the review panel addressed this discrete, and separate, issue of causation.

The primary judgment

45. As to the grounds relevant on appeal, the primary judge rejected NRMA’s contention that the review panel had reversed the onus of proof on causation in its reasons for decision at [173] (extracted above at [39]). The primary judge found that the review panel’s initial finding was that the fact that the accident occurred at high speed and that Mr Le had to extricate himself through a window supported a causal connection between the accident and Mr Le’s traumatic brain injury. It was only after that that the review panel referred to the absence of evidence of Mr Le being agitated prior to the accident: J[49]. In any event, the primary judge stated that the review panel’s reference to the absence of evidence was simply a statement of the available evidence before it: J[50].

46. The primary judge also found that the review panel’s reasons explained the path of its reasoning in sufficient detail to enable a court to see whether the opinion did or did not involve an error of law. The reasons thus met the standard required, consistent with the analysis in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”) at [55]: J[60].

Ground one: error of law as to causation

47. In support of ground one of its notice of appeal, as it did before the primary judge, NRMA contends, first, that the review panel reversed the onus of proof in its reasons at [173] (set out at [39] above) by relying upon the fact that there was no evidence of Mr Le being agitated prior to the accident in support of what I have found to be the review panel’s second, independent, finding in support of its conclusion as to causation. NRMA submits that the review panel thereby impermissibly shifted the onus of proof onto the insurer to disprove causation, when the true position was that Mr Le bore the onus of proving that the accident caused or contributed to his traumatic brain injury. NRMA also submits that the primary judge’s reasoning as to this was erroneous as at [173] the review panel did not adopt a two-step process.

48. These contentions should be rejected. As the primary judge explained, when identifying that there was no evidence to establish agitation before the accident, the review panel was simply identifying the ambit of the evidence before it. In this evidentiary context, the review panel inferred that it was the impact of the accident, together with the presence of stimulant drugs, that caused Mr Le’s agitation and conduct in striking his head on the ground. In so finding, the review panel did not err.

49. Contrary to NRMA’s submission, the reasoning of the review panel was not analogous to that found to be flawed by Hoeben CJ at CL in Allianz Australia Insurance Limited v Mackenzie [2014] NSWSC 67 (“Mackenzie”). The review panel in Mackenzie had made a finding as to causation based, in part, on a finding that “there was insufficient evidence to categorically refute any causal relationship between the subject motor accident and injury”: at [31]. The panel then concluded that it accepted that causation was established “in the face of insufficient evidence to the contrary”: at [31]. That form of reasoning entails a manifest reversal of the burden of proof on causation as it is effectively a finding that causation is proved because it has not been disproved. That is a far cry from the reasoning of the review panel in this case. The review panel was clearly cognisant that the burden of proof on causation was on Mr Le as was apparent from its conclusion at [173] that it was satisfied as to causation on the balance of probabilities. There was no inconsistency with the terms of s 5E of the Civil Liability Act 2002 (NSW) (CLA), which it was common ground applied to the review panel’s decision.

50. Secondly, NRMA contends that the review panel’s reasons do not elucidate whether it found that Mr Le sustained a traumatic brain injury in the accident, or whether it found that his traumatic brain injury was caused by his agitation which was itself caused by the accident. As I have already explained, however, the review panel found that the accident caused Mr Le’s brain injury and separately and irrespective of this, that the impact of the accident caused Mr Le’s agitation and conduct in striking his head on the ground which itself made a material contribution to his traumatic brain injury. I am satisfied that the review panel elucidated the basis of its findings as to causation and there is no relevant lack of clarity.

51. Thirdly, NRMA contends that the review panel erred in only finding that the accident could have caused the traumatic brain injury without finding whether it did so. As is clear from my analysis above, this contention should be rejected. The review panel’s findings are clearly expressed to be, and are, findings on the balance of probabilities that the accident caused or contributed to Mr Le’s traumatic brain injury.

47. Fourthly, NRMA contends that it was not legally open to the review panel to find that Mr Le’s traumatic brain injury was caused by the accident simply because (as it said in the first sentence of [173]) the accident occurred at high speed and Mr Le had to be extricated from the car through a window and with the help of a bystander.

48. As the review panel identified, there is clear authority that a finding of causal connection as between an accident or event and a medical condition or injury does not depend upon the expert opinion of a doctor or other health professional that a causal connection is established: EMI v Bes at 242 (Herron CJ, Holmes J agreeing; see also Asprey JA at 245); Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 (“Fernandez v Tubemakers”) at 197 (Glass JA; see also Mahoney JA at 199-201); see also Mason J (with whom Barwick CJ, Gibbs and Murphy JJ agreed) dismissing an appeal against the decision of this Court: Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724. Where the expert evidence is only that a causal connection is possible, as explained by Reynolds JA (in dissent) in Fernandez v Tubemakers at 196, the question arises “whether the expert opinion can be eked out by common knowledge so that the inference [as to causation] may be drawn”. To similar effect, in Fernandez v Tubemakers Glass JA said at 197 (Mahoney JA agreeing) that expert evidence supporting a possible causal connection will be sufficient to found that connection:

“[I]f, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence”.

54. His Honour explained at 198, however, that it is necessary to act upon inference rather than speculation.

55. Such inferences not uncommonly form the basis of expert medical opinion as to causation when the expert relies not just upon their training and experience but upon the drawing of inferences from all of the circumstances. Consistent with this, by way of example, in Pierce, White JA held that there was no error in the primary judge having found medical causation on the basis of a medical expert’s intuitive inference that causation was established, having regard both to scientific possibility and to the fact of deterioration in Ms Pierce’s seizure activity arising suddenly after the hospital’s negligence. That finding as to medical causation was available notwithstanding that it was in part based upon “elements [of the expert opinion] that a lay person would use as a matter of common sense or intuition”: at [150]-[152], [155].

56. Inferences from available evidence may also be relied upon to support a finding as to causation in the absence of any probative expert evidence. Thus, again by way of example, in Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465, the High Court upheld a finding that a railway worker died from hitting his head in a fall, probably from slipping on grease, where there was no probative evidence that he died of a coronary occlusion (which was the only other postulated cause of his death) and there was evidence of a skid mark in a nearby patch of grease and grease on the soles of his shoes. At 466, Barwick CJ held (Windeyer, Owen and Gibbs JJ agreeing) that “using the common knowledge and experience of mankind, a tribunal of fact could properly conclude that the blow on the head at the least contributed to the death of the workman.”

57. This analysis would apply to the determination of factual causation under s 5D of the CLA which, as was explained in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [16], “involves nothing more or less than the application of a ‘but for’ test of causation”.

58. Moreover, given its constitution, the review panel is clearly required to be, and is, an expert body. Parliament should be taken to have expected that the medical assessors on the review panel would bring their medical experience and training to bear on resolving questions of assessment such as whether one, or both, of two possible causes contributed to a particular injury. As McColl JA said in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [98]-[99] (Mason P agreeing) in an analogous context:

“The purpose of setting up a panel with experts is to enable it to resolve questions within its expertise … The inclusion of two specialists on the Appeal Panel must have been intended, in part, to permit them to bring their expertise to bear on the contents of the [medical assessment certificate].”

59. That experience and training is likely to have some bearing even where, as in this case, it is not suggested that medical science alone could provide any clear answer to the question of causation raised on assessment.

60. In these circumstances, I would accept that it is well open to a review panel to engage in a process of inferential reasoning as to causation such as that described at [53]-[56] above even in the absence of expert evidence. Against a backdrop in which there was evidence that the accident could have caused Mr Le’s traumatic brain injury, it was thus open to the review panel to infer, from an analysis of relevant circumstances, that that injury was sustained at least to a more than negligible extent in the accident. The question is, however, whether it was open to the review panel to reach that inference in the way that it did in the first sentence of its reasons for decision at [173]. That is, based solely upon the accident having occurred at high speed and the fact that Mr Le had to be extricated from the car through a broken window.

61. Had there been no other competing cause of Mr Le’s traumatic brain injury suggested by the evidence, I would have been satisfied that an inference of causal connection between the accident and Mr Le’s traumatic brain injury could properly have been drawn by the review panel from these matters. Contrary to NRMA’s submission, that would have been so irrespective of whether the review panel had identified the precise causal mechanism by which the accident caused the injury. Such precision is not required where, as here, there is no available evidence from which a precise causal mechanism could be deduced and rational inference could support a finding as to causation.

62. However, given that Mr Le’s self-inflicted head striking provided another plausible cause of his traumatic brain injury, it was necessary for the review panel to evaluate the possibility that it was only the self-inflicted head striking that caused his traumatic brain injury. The matters relied upon by the review panel in the first sentence of [173] did not, of themselves, provide a rational basis to exclude this possibility. That required, for example, some evaluation of the likelihood that the self-inflicted head striking caused the traumatic brain injury or of the cogency of the evidence as to the head striking, or perhaps as to whether Mr Le’s agitation as observed by onlookers before the self-inflicted head striking was itself suggestive that a traumatic brain injury had been suffered in the accident. As counsel for NRMA submitted, in a complicated factual matrix such as that presented in this case, “necessary inference can only take you so far”.

63. Given the absence of any such evaluation, consistent with the authorities set out above, I would accept NRMA’s contention that the review panel’s conclusion that Mr Le’s traumatic brain injury was directly caused in the accident (as set out in the first sentence of [173] of its reasons for decision) is legally erroneous. It was not a finding that was properly supported by rational inferences based upon the circumstances of the case. Notwithstanding that the role of the review panel is to determine quintessentially factual issues (see eg Leeming JA (Basten JA and Simpson AJA agreeing) in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [39]-[40]), it has to do so based upon rational inference and not speculation.

64. However, as I have already explained, that error is not material. The review panel’s additional finding as to causation, as expressed in the remainder of [173] of its reasons for decision, amply supports its conclusion that the accident caused Mr Le’s traumatic brain injury. Like the primary judge, I am satisfied that “it was reasonably open to the review panel to reach the conclusion that the accident was a contributing cause of the head injury which was more than negligible”: J[74].

65. In these circumstances, ground one of NRMA’s notice of appeal must be rejected.

Ground two: inadequacy of reasons

66. NRMA’s contentions in support of ground two of its notice of appeal went largely to the review panel’s conclusion in the first sentence of [173] of its reasons for decision. Given my conclusion as set out above, it is unnecessary to consider these contentions. I would, in any event, characterise the error here as one of reasoning (as already discussed) rather than as an inadequacy of reasons. The review panel set out the basis for the inference as to causation that it drew. The question arising is whether that process of reasoning was legally available in the circumstances.

67. NRMA also contended that the review panel’s reasons in the remainder of [173] were inadequate. It contended that it was not possible to glean from those reasons why it was that the review panel found that the accident, together with the presence of stimulant drugs in his body, caused Mr Le’s agitation and conduct in striking his head on the ground. This contention must be rejected. There is no gap in reasoning to be filled: cf Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6] (Leeming JA, Meagher JA agreeing). The review panel’s finding as to what caused Mr Le’s agitation and conduct was both rational and clear on its face. It did not leave anything of substance to inference.

68. The primary judge did not err in finding that the review panel’s reasons met the standard required by analogy with Wingfoot at [55].

69. It follows that ground two of NRMA’s notice of appeal should be rejected.

Conclusion

70. Costs should follow the event. No submission was made to the contrary.

71. The orders I would propose are:

1. Appeal dismissed.

2. Appellant to pay the costs of the appeal.

72. BALL JA: I agree with Stern JA.

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Decision last updated: 06 June 2025