Insurance Australia Ltd t/a NRMA Insurance v Milton

[2016] NSWCA 156

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

Hearing dates:

3 June 2016

Decision date:

05 July 2016

Before:

Basten JA at [1];
Leeming JA and Simpson JA at [60]

Decision:

(1)   Dismiss the appeal.

 

(2)   Order that the appellant pay the costs of the first respondent (Trent Nathan Milton).

 

(3)   Order that the appellant pay the costs of the second respondent (the Authority) and the third respondents (the members of the Review Panel) on a submitting basis.

 

(4)   Direct that the appellant’s solicitor file by 19 July 2016 any written submissions with respect to the matters raised in [70] of the judgment of Leeming and Simpson JJA, failing which proposed order (5) will be made.

 

(5)   Unless the appellant’s solicitor files written submissions as provided in order (4), order that the appellant’s solicitor –

 

(a)   not charge his client with any of the costs and disbursements associated with preparing the Blue appeal books;
(b)   to the extent that such costs or disbursements have already been paid or might be paid in the future, reimburse the client for that amount; and
(c)   give the client written notification of the terms of this order.

 (6)   Direct that order (5) not be entered until directed by the presiding judge.

Catchwords:

ADMINISTRATIVE LAW – judicial review – motor vehicle accident – brain injury – Lifetime Care and Support Scheme – claimant found ineligible for inclusion in Scheme – Review Panel decision refusing insurer’s application for claimant to join Scheme – scope of Review Panel’s obligation to give reasons – whether credibility of claimant’s account of own functioning addressed in reasons

 

ADMINISTRATIVE LAW – judicial review – mandatory considerations – identification by reference to statutory functions of Review Panel – extent to which applicant’s submissions affect scope of functions – whether constructive failure to exercise functions

 

MOTOR ACCIDENT – Lifetime Care and Support Scheme – assessment of eligibility for participation – review of decision of Assessment Panel – whether review limited to grounds specified in the application which satisfy LTCS Guidelines

  PRACTICE AND PROCEDURE – appeal books – no reference to large volume of material submitted on appeal – whether party should be exempt from costs of appeal books – whether solicitor should bear costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 99
Migration Act 1958 (Cth), s 430
Motor Accidents Compensation Act 1999 (NSW), s 63
Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 3, 7, 8, 9, 13, 14, 15, 19, 58; Pt 3, Div 1
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), rr 51.29. 51.32

Cases Cited:

Ali v AAI Ltd [2016] NSWCA 110
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 44
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19
Roger v De Gelder [2015] NSWCA 211; 71 MVR 514
SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249; 222 FLR 84
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th ed, LawBook Co, 2013) at [17.110].

Category:

Principal judgment

Parties:

Insurance Australia Ltd t/as NRMA Insurance (Appellant)
Trent Nathan Milton (First Respondent)
Lifetime Care and Support Authority of New South Wales (Second Respondent)
Dr Sophia Lahz, Dr Adeline Hodgkinson, Dr Michael Rochford, in their capacity as a review panel and in their capacity as FIM assessment panel of the LCSA (Third Respondent)

Representation:

Counsel:
Mr M A Robinson SC/Ms J Gumbert (Appellant)
Mr K P Rewell SC/Mr P J Frame (First Respondent)
Submitting appearance (Second and Third Respondents)

  Solicitors:
Moray & Agnew (Appellant)
Matthews Folbigg Pty Ltd (First Respondent)
Crown Solicitors Office (Second and Third Respondents)

File Number(s):

2015/292391

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 1392

Date of Decision:

25 September 2015

Before:

Beech-Jones J

File Number(s):

2015/120236

Judgment

1. BASTEN JA: On 5 March 2011 the respondent, Trent Nathan Milton, was severely injured in a motor vehicle accident. For two years he received care and treatment as an “interim participant” in the scheme created by the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (“the Care and Support Act”). The appellant is the insurer, which would be liable for care and treatment as the compulsory third party insurer, were Mr Milton not a participant in the scheme.

2. After the two year period as an “interim participant” expired, Mr Milton resisted the contention of the insurer that he satisfied the criteria for eligibility. (It is convenient to refer to him hereafter as “the claimant”, being the term adopted by the Review Panel.) On 21 March 2013, the Lifetime Care and Support Authority of New South Wales (“the Authority”) held that he was not eligible, a decision disputed by the insurer. The decision was confirmed by an Assessment Panel and finally by a Review Panel. The insurer sought judicial review of the Review Panel’s decision in the Common Law Division, but on 25 September 2015 Beech-Jones J rejected the application. [1] The present appeal is brought by the unsuccessful insurer.

   1. Insurance Australia Ltd v Milton [2015] NSWSC 1392.

Background

3. The responsible Minister introducing the legislation described it as establishing “a scheme to provide lifetime care and support for persons who suffer catastrophic injuries in motor vehicle accidents”. [2] The Care and Support Act does not itself use the term “catastrophic injuries”, but the Minister’s statement may be accepted as a valid description of the scope of the scheme. For persons unable to bring proceedings in negligence against another party, the scheme has obvious benefits. For a person with a claim against another party, the benefits of the scheme may be contestable. However, an eligible person cannot opt out of the scheme.

   2.    Second Reading Speech, NSW Parliamentary Debates, Third Series Vol 320, Legislative Assembly, 9 March 2006, p 21401.

4. The grounds of appeal pursued in this Court challenged the findings of the primary judge with respect to the reasoning of the Review Panel in two ways. First, it was said that the Review Panel had failed “to deal with and determine a significant part of the case put before it by the [insurer]”. Secondly, it was alleged that the Review Panel had failed to set out “the actual path of reasoning to its decision” and thus failed to perform part of its statutory function.

5. For reasons explained below, the first limb of the appeal was based upon a misconception as to the function of the Review Panel. The second limb must fail because the substantial reasons given by the Review Panel identified and addressed, with some care, each of the matters which were understood to arise in the exercise of its statutory functions. The primary judge was correct to reject the insurer’s submissions and dismiss its application with costs. The appeal must also be dismissed with costs.

Nature of judicial review

6. Both of the issues raised on appeal require consideration of the statutory functions of the Review Panel. Before turning to that question it is convenient to address the available scope of judicial review of decisions of review panels. The issues raised are not dissimilar from those which are coming before this Court with increasing frequency with respect to decisions of medical assessors under the Motor Accidents Compensation Act 1999 (NSW).

7. In carrying out judicial review of decisions of statutory authorities, the Supreme Court is called upon to exercise its supervisory jurisdiction, which is identified in s 69 of the Supreme Court Act 1970 (NSW). The sole purpose of that jurisdiction is to ensure that a particular statutory authority neither exceeds the legal limits imposed on it by its constituting statute and the general law, nor fails to carry out its statutory function where that function is properly engaged. [3]

   3. Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 (Brennan J).

8. In the present case the insurer complained, not that the Review Panel had exceeded its authority, but that it had failed to fulfil its statutory function because it had failed to deal with and determine a significant part of the insurer’s “case”. The insurer identified the issues not dealt with by the Review Panel as “the many inconsistencies between what [Mr Milton] now told the Panel and what he (sometimes consistently) told the previous medical experts and assessors.” [4] The obligation of the Review Panel to take that course was said to follow from the reasoning of this Court in Roger v De Gelder [5] where, Gleeson JA (with the agreement of Macfarlan and Leeming JJA) stated that “[w]here a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice”. That proposition was supported by reference to the judgment in Dranichnikov v Minister for Immigration and Multicultural Affairs [6] of Gummow and Callinan JJ, who noted that, “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.”[7]

   4.    Supreme Court Summons, ground 9(c).

   5. [2015] NSWCA 211; 71 MVR 514 at [93].

   6. [2003] HCA 26; 77 ALJR 1088 at [24].

   7. See Roger at [89] quoting Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [19]-[22].

9. In this context, a “substantial” argument means one which is clearly material or of undoubted relevance. However, care must be taken to distinguish the scope of any duty imposed on the decision-maker to give reasons from the identification of material matters which must be taken into account. In Minister for Immigration and Multicultural Affairs v Yusuf,[8] the joint reasons of McHugh, Gummow and Hayne JJ rejected the proposition that the obligation imposed on the Refugee Review Tribunal to set out its findings “on any material questions of fact” [9] implied an obligation to make findings on all matters which were “objectively material”. [10] The plurality then noted that some matters might be matters which the Tribunal was bound to take into account. [11] The joint reasons continued:

“[73]   It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. …

[74]   This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

8. (2001) 206 CLR 323; [2001] HCA 30.

9. Migration Act 1958 (Cth), s 430(1)(c).

10. Yusuf at [68].

11. Yusuf at [72].

10. A failure to take into account a relevant (or mandatory) consideration may be described as a failure to carry out, to the full extent required by law, the statutory function of the Tribunal; it is an error sometimes described as a constructive failure to exercise jurisdiction. Those factors will be identified by reference to the constituting statute (or any other source of jurisdiction) and not, primarily, by reference to the submissions of a party. Accordingly, it is necessary to commence by considering the scope of the statutory functions of the Review Panel.

Statutory functions of Review Panel

(a)   nature of review

11. It is convenient to start with the identification in the Care and Support Act of eligibility for participation in the scheme.

7   Eligibility for participation in the Scheme

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

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

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

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

12. It may be noted that s 7 does not identify the relevant criteria, but provides that the criteria may be specified by the LTCS Guidelines (defined to mean guidelines issued by the Authority under s 58 of the Care and Support Act). [12] Section 8(1) provides that an application to become a participant in the scheme “can only be made by or on behalf of the person or by the insurer of a claim made by the person in respect of the injury.” Participation in the scheme is defined in the following terms:

9   Acceptance as a participant

(1)   A person becomes a participant in the Scheme if the Authority is satisfied that the person is eligible to be a participant and accepts the person in writing as a participant in the Scheme, either as a lifetime participant or an interim participant (according to the person’s eligibility).

(2)   If the Authority is satisfied that a person is eligible to be a participant and that application for the person’s acceptance as a participant has been duly made, the Authority must accept the person as a lifetime participant or an interim participant (according to the person’s eligibility).

12. Care and Support Act, s 3(1) LTCS Guidelines.

13. Disputes about eligibility are dealt with in Pt 3 of the Care and Support Act. The Authority is to appoint “medical practitioners and other suitably qualified persons to be assessors”. [13] The first stage in the dispute resolution process is then to refer the dispute to an assessment panel.

14   Referral of disputes to Assessment Panel

(1)   If there is a dispute as to whether a motor accident injury suffered by a person satisfies criteria specified in the LTCS Guidelines for eligibility for participation in the Scheme, the dispute can be referred to an Assessment Panel for determination.

(2)   The dispute can be referred by the Authority or by notice to the Authority given by or on behalf of the injured person or by the insurer of the injured person’s claim.

(3)   The Authority is to convene a panel of 3 assessors to constitute the Assessment Panel to determine a dispute referred under this section.

(4)   The Assessment Panel to which a dispute is referred for determination is to determine the dispute and is to give a certificate as to its determination setting out the reasons for its determination.

13. Care and Support Act, s 13.

14. Critical to the present case is the review process. Provision for a review is made in ss 15 and 19, which state:

15   Review of Assessment Panel’s determination

(1)   The determination of an Assessment Panel can be referred for review by a Review Panel, but only on one or more of the following grounds:

(a)   a change in the condition of the injured person, being a change that occurred or that first became apparent after the dispute was referred for determination by the Assessment Panel and that is capable of having a material effect on the determination,

(b)   the availability of additional relevant information about the injury, being information that was not available, or could not reasonably have been obtained, before the dispute was referred for determination by the Assessment Panel and that is capable of having a material effect on the determination,

(c)   the determination was not made in accordance with the LTCS Guidelines,

(d)   the determination is demonstrably incorrect in a material respect.

(2)   A determination can be referred for review:

(a)   by or on behalf of the injured person, or

(b)   by the insurer of the injured person’s claim, or

(c)   by the Authority.

(3)   The Authority is to convene a panel of 3 assessors to constitute the Review Panel to review the determination of the Assessment Panel.

(4)   The Review Panel can confirm the determination of the Assessment Panel or it can revoke that determination, substituting its own determination and giving a certificate as to its determination.

19   Authority monitoring and oversight

(1)   Determinations and reviews under this Division are subject to relevant provisions of the LTCS Guidelines relating to the procedures for the referral of disputes for determination or review of determinations and the procedure for determination.

(2)   The Authority may arrange for the provision of training and information to assessors to promote accurate and consistent determinations and reviews under this Division.

15. Beyond the review process there is no further right of appeal or review. The determination of the assessment panel, or the review panel on a review of the assessment panel’s determination, is described as “final and binding for the purposes of this Act and any proceedings under this Act.”[14] This is not a form of privative clause and will not affect the scope of judicial review. [15]

    14. Care and Support Act, s 16.

    15.    Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (5th ed, LawBook Co, 2013) at [17.110].

16. Finally, there is provision for the issue of guidelines:

58   LTCS Guidelines

(1)   The Authority may issue guidelines (LTCS Guidelines) for or with respect to any matter that by this Act is required or permitted to be the subject of those guidelines.

(2)   The Authority may amend, revoke or replace LTCS Guidelines.

(3)   LTCS Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(4)   LTCS Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the guidelines for that purpose, on the day so specified.

(5) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.

17. A review of a decision about eligibility under Pt 3 Div 1 is to be initiated by an application to the Authority. [16] The guidelines provide that a review can only occur where there is an application by a person or body referred to in s 15(2) and an officer of the Authority considers that “there is reasonable cause to suspect that the application meets the criteria in section 15 of the Act”. [17] That wording is inapt if, contrary to s 15(1), it requires more than one criterion to be satisfied. The proper officer in fact expressed her satisfaction that “the application meets the criterion set by [s 15(1)(b)]”. [18]

    16.    Guidelines, Pt 2, par 2.

    17.    Guidelines, Pt 2, par 12.

    18.    Statement of Reasons for Decision, 29 July 2014, p 4.

18. More importantly, both the Review Panel and the parties assumed that once a matter had been referred for review, a new assessment covering all aspects of the Assessment Panel’s decision should be undertaken by the Review Panel. That appears to have been a habit of thought resulting from the express provision to that effect in s 63(3A) of the Motor Accidents Compensation Act, in relation to a medical dispute. Thus, s 63(3A) states that the review “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.” By contrast, s 15(1) of the Care and Support Act provides that the determination of the Assessment Panel may be referred for review, but only “on” one or more of the identified grounds. Section 15(1) makes no reference to an application; it is either the referral or the review which is limited to (“on”) the specified grounds. If the ground alleged is a change in the condition of the injured person, and the Review Panel is satisfied no such change has occurred, it is by no means clear that the Review Panel is required, or even entitled, to proceed to a fresh assessment of the determination of the Assessment Panel.

19. Part 2, par 16 of the guidelines required that the Review Panel “will consider all aspects of the dispute afresh”. If that is to be read without reference to the basis on which the review was available, there may be doubt as to its validity. As a practical matter, in some cases that course will be appropriate; but not in all. Thus, to the extent that the Review Panel did carry out a fresh assessment (to which neither party took objection before the Review Panel, before the primary judge or in this Court), that approach was arguably wrong, but not in a way which assists the appellant.

20. While in the present case nothing turns on this issue, as a matter of practice, much may turn on it. The Review Panel noted that it had before it eight reports which had not been before the Assessment Panel. However, it was clear that these were not the only documents identified as relevant to the review. The Review Panel said that it had received four letters relating to the review including one from Moray & Agnew, the insurer’s solicitors, annexing 33 reports. Fifteen documents were listed under the heading “Eligibility dispute documents following referral to Assessment Panel”. Finally, the list of documents referred to the Review Panel covered 6.5 pages of its report, purely listing the documents, without description. The possibility that any lay person, let alone someone suffering from catastrophic injuries, could reasonably be required to submit himself or herself to such a process, let alone comprehend it, tests the imagination. If the statute does not require a comprehensive fresh assessment whenever a review is sought, there is much to be said for the view that no such assessment should take place.

(b)   obligation to provide reasons

21. Although the Care and Support Act provides that an assessment panel must give a certificate as to its determination “setting out the reasons for its determination”,[19] there is no equivalent provision for a Review Panel. [20] However, the LTCS Guidelines require that the certificate “will include written reasons for the decision”. [21] That requirement falls within the scope of a “procedure for determination” under s 19(1) of the Care and Support Act and is therefore valid as a matter required or permitted to be the subject of guidelines, under s 58(1).

    19. Care and Support Act, s 14(4).

    20. Compare s 15(4).

    21.    Guidelines, Pt 2, par 17.

22. The guidelines say nothing about the nature of the reasons which are required, but require that they be included in the certificate, which must be issued to the Authority within 20 days of the clinical examination or final teleconference. The imposition of a tight temporal constraint militates against any inference that the reasons must, in all circumstances, be comprehensive. Much will depend upon the individual case, but in all cases their adequacy will be judged by their purpose, which is to set out the basis of the evaluative judgments (in most cases of a medical nature) made by the assessors. As explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak:[22]

“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.”

22. (2013) 252 CLR 480; [2013] HCA 43 at [55].

23. In applying the standard required by the Victorian legislation, which involved language not to be found in the present legislation, the Court further noted that a Medical Panel “is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.”[23]

    23. Wingfoot at [56].

Decision of Review Panel

24. By way of background to the reasoning of the Review Panel it is helpful to note the circumstances of the claimant outlined in his written submissions, as to which no issue was taken on the appeal. Thus, his injuries were said to include a traumatic brain injury, a severe injury to the right lower leg resulting in a right-sided trans-tibial amputation, fractures of the right radius and ulna and a right radial nerve injury.

25. Prior to the accident, the claimant was a proficient athlete, competing professionally as a snowboarder and in other athletic activities. Since the accident the claimant became “an elite para-snowboarder, being a member of the Australian Paralympic team at the Winter Olympic Games in Sochi in 2014 (three years after the accident)”. Before those games he was “ranked in the top 20 in the world in para-snowboarding.”

26. To qualify as a participant in the scheme, the claimant needed to satisfy eligibility criteria specified in Part 1 of the Guidelines. The first criterion is that the person must have been injured in a motor accident; there was no dispute that this criterion was satisfied. The person must then satisfy criteria within particular categories, namely, spinal cord injury (cl 2.1), brain injury (cl 2.2), amputations (cl 2.3), burns (cl 2.4) and permanent blindness (cl 2.5). The relevant category in respect of the claimant was brain injury caused by the motor accident. The second relevant criterion was that the brain injury be of a sufficient severity, measured (relevantly) by an assessment of post-traumatic amnesia as lasting more than one week. The Review Panel held that that criterion was satisfied and there is no dispute as to that criterion.

27. The third criterion was that, at the time of assessment, the person achieved a score of five or less on any one of the items contained in a standard functional independence measure (FIM). [24] The Assessment Panel undertook an FIM assessment, concluding that he did not score five or less in any of the several areas for assessment.

    24.    Guidelines, Pt 2, pars 2.2 and 3.

28. The “FIM score sheet” for brain injury required assessment in the areas of “Self-care”, “Communication” and “Social Cognition”, as well as “Transfers” and “Locomotion”. It was the first three categories upon which the present challenge focused. Each of the five major areas had sub-categories, which were numbered consecutively from (1) to (18). The appellant challenged findings made for items (7) and (8) under self-care, namely “Bladder management” and “Bowel management”.

29. Each sub-category must be given a score from 1 to 7. A score of 1 or 2 indicates “complete dependence” (requiring a helper); a score of 3-5 indicates “modified dependence” (also requiring a helper); a score of 6 indicates “modified independence” (requiring a device), and 7 indicates “complete independence”, involving the person’s ability to act on his or her own in a timely and safe manner. For any score of less than 7, the assessor is required to complete a further column indicating whether or not the score was due to the brain injury. The assessment by members of the Review Panel gave a score of 7 for bowel management, and 6 for bladder management, but indicated in the latter case that it was not due to the brain injury.

30. In order to identify relevant aspects of the Review Panel’s reasons it is necessary to identify the principal bases upon which the insurer challenged the Assessment Panel certificate. The first depended on two earlier FIM assessments carried out, at the request of the insurer, by Dr David Bowers (a rehabilitation physician). In the first, dated 12 September 2013, Dr Bowers scored both bladder management and bowel management at 3. (That report pre-dated the decision of the Assessment Panel.) Dr Bowers saw the claimant again on 22 May 2014. He noted different histories as to bowel and bladder management and expressed uncertainty as to the appropriate scores, concluding that both should be scored “at either 3 or 7.” [25] Somewhat ironically, this expression of uncertainty, which was favourable to the claimant, was a principal basis upon which he was required to undergo a further FIM assessment.

    25.    Review Panel reasons, p 24.5.

31. Secondly, the insurer challenged the Review Panel’s reliance on the evidence given by the claimant, contending that the assessment of his bladder and bowel management depended entirely on the history he provided and hence his reliability and credibility.

32. The reasons of the Review Panel set out its “clinical examination findings” over some 12.5 pages. The significant material available to the Panel, in what it accurately described as “voluminous documentation”, was identified and considered. The reasons recorded that this material was then discussed at an initial teleconference. With respect to the major issues of bowel and bladder management, the following findings were recorded at that stage of the assessment: [26]

“Apropos the bladder, the Panel decided that there was no evidence to indicate a neuropathic bladder, given the normality of the urodynamic studies, cystoscopy and ultrasound. The incontinence was an intermittent symptom occurring during times of physical stress e.g. transfers. The urological member of the panel informed the other members that the symptoms were most compatible with irritation at the bladder base associated with inflammation of the prostate gland. It was clear from the documents that whilst the claimant may suffer from occasional urinary incontinence, the cause of this incontinence is categorically unrelated to traumatic brain injury.

The Panel was also of the view that the occasional faecal incontinence referred to within the documentation was unrelated to the traumatic brain injury from the subject accident. The brain injury was not of sufficient severity to cause faecal incontinence.”

26.    Review Panel reasons, p 25.

33. This rejection of a causal relationship between any such disability and the brain injury, a finding not challenged on judicial review, required that the application be dismissed. However, the Panel, after referring to other grounds not presently relevant, continued:

“The Panel was unable to explain on a medical basis the reasons for the improvement in FIM scores by Dr David Bowers between September 2013 and March 2014. This was not the expected pattern of recovery from brain injury so many years after the subject accident.

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

34. The Panel then considered the results of the further FIM assessment and the interview conducted with the claimant’s friend. The conclusions reached by the Panel in this regard were carefully and comprehensively expressed in its reasons. However, because they constituted the focal point of the challenge on the appeal it is desirable to set out some key passages. [27]

    27.    Review Panel reasons, pp 27-28.

“There is a discrepancy in the information provided by Mr Milton in relation to bladder and bowel continence when this is compared with the content of various treatment reports. Notwithstanding, the Panel is satisfied that if present any ongoing faecal or urinary incontinence is not due to the subject traumatic brain injury, which was not severe enough to have caused these symptoms. The Panel also reiterates the normality of the cystoscopy and urodynamic studies making neuropathic bladder highly improbable.

The Panel is also of the opinion that the claimant has been comprehensively investigated for the earlier complaint of urinary incontinence, with no evidence of neurogenic bladder. The Panel is also of the opinion that severity of the traumatic brain injury in the subject accident is not of sufficient magnitude to result in faecal incontinence.

The Panel concluded that the severity of the traumatic brain injury is not of the magnitude to cause urinary or faecal incontinence in the past, present or future.

With permission from the claimant, the Assessors also spoke with Stephen Potts, a friend of Mr Milton by telephone on December 22, 2014. The purpose of the discussion with Mr Potts was to corroborate the information provided by the claimant during the re-examination (for FIM assessment) and to seek further information about Mr Milton’s day-to-day function to finalize the Panel’s FIM assessment of the claimant.

Mr Potts told the examining Panel members that he had known the claimant for several years including a period before the subject motor accident. They had similar ‘outdoor’ interests. Typically, they saw each other sometimes a few times per week for a period and then not for several weeks during other periods.

Mr Potts told the examining Panel members that Mr Milton’s main problem was fatigue. He confirmed that Mr Milton was essentially managing his own life independently without requirements for prompting or cueing by others. Whilst he suffered from fatigue, Mr Milton had learned to recognize the problem and deal with it proactively by taking breaks and delaying activities until he was more rested.

In summary, whilst there are extensive and detailed reports of significant cognitive and urological impairments in 2013 these have largely resolved in 2014. The participant’s then girlfriend provided significant support and yet since the breakdown of that relationship the need for support appears to have reduced substantially. While it is accepted that most recovery following a traumatic brain injury occurs in the first 2 years, further recovery as well as emotional adjustment can result in continuing improvements in functional ability.

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

35. The reasons were accompanied by the FIM score sheet which itself ran for six pages, with further reasoning in closely typed paragraphs on the right hand half of the page. The primary judge accepted that this assessment formed part of the reasons of the Review Panel and there was no challenge to that conclusion on the appeal.

36. Against the headings “Bladder management” and “Bowel management” the Panel set out the claimant’s denials of incontinence, his denial of taking any medication to regulate bladder function and the evidence of Mr Potts that he had not noticed any significant incontinence. As noted above, with respect to bowel management, the Panel accorded a score of 7, indicating complete independence; with respect to bladder management, it accorded a score of 6, but said that the score was not due to the brain injury. Under the heading “Comprehension” (a sub-heading of “Communication”) the Panel set out the following introductory remarks:

“Mr Milton understood the purpose of this FIM (Functional Independence Measure) Assessment. He told us that he has a strong wish to exit the Lifetime Care and Support Scheme so he can live an independent life. He understood that the results of our FIM assessment would determine whether or not he could exit the Scheme. He explained his belief that he would have greater freedom; making it easier to procure (for example) prosthetics whilst he was living abroad, if he were not in the Scheme. He stated that this assessment is his seventh FIM assessment. He told us that he had researched the FIM, and he had also researched who we were. … Mr Milton appeared to have an adequate understanding of the FIM tool, and of the critical significance of the score of 5. He told us on multiple occasions that he was very independent, and did not need any prompting or cueing. He strongly maintained to us that he was living an independent life. It was clear that he understood the information we needed to hear, to enable him [to] exit the scheme.”

37. Under the heading “Expression”, the Panel recorded:

“At the commencement of the interview, Mr Milton spoke in a pressured way, emphasising his independence, and lack of need for assistance due to brain injury. … He conceded that he was a little nervous and had been for a swim before the appointment, to calm himself, given that our decision was of great importance to him. The Assessors found it a little difficult to take control of the interview due to his overinclusive and verbose utterances. In addition to verbosity, he was at times tangential, sometimes needing to be returned to the question asked. … He paid no attention to time, although he was made aware at the outset of our time limitations. This did not however prevent his providing excessive detail to questions asked.”

38. Under the heading “Social interaction” (a sub-category of “Social Cognition”), the Panel recorded:

“He generally related well to the Assessors during the interview although there was a single occasion, where he was asked to address us in a less patronizing manner. He took this in his stride, displaying no irritability, before profusely apologizing for his manner. The interview was at other times difficult because he was asked confronting questions about (in particular) the continence issues. He provided information at odds with the content of several medical, nursing and allied health reports, with the Assessors politely but firmly challenging him on this. At all times, however, he maintained a pleasant manner and did not lose his temper. He displayed no hint of frustration, simply reiterating that he did not understand or know the reasons for the content of these reports. At no stage, despite the line of questioning, did he loose his cool with the Assessors.”

39. Under the heading “Problem solving”, the assessors recorded the following findings:

“He was also questioned in detail about the reported problems he experienced whilst overseas with respect to fatigue, negativity and difficulties with personal care. He provided the Assessors with a reasonable explanation for the difficulties…. The Assessors discussed with Mr Milton the differing results of the FIM Assessments in September 2013 and May 2014 by Dr Bowers. Mr Milton said that he felt ‘verballed’ during the first assessment, and had not this been the case, the first assessment would have had similar results to the more recent assessment earlier this year.

Earlier, Mr Potts had provided assistance to Mr Milton with activities, especially given that Mr Milton’s family could not be very helpful. However, since the Paralympics, Mr Milton had focused more on physical fitness and found a greater clarity of mind.”

Grounds of appeal

40. The gravamen of the challenge on the appeal may be broadly encapsulated in the following propositions:

1. the assessment of the claimant’s bladder and bowel management depended on the history he provided and hence upon his reliability and credibility;

2. the claimant was vehemently opposed to participation in the scheme, based on his assessment of his own self-interest;

3. he had made a careful study of the guidelines and the FIM assessment process for the purpose of manipulating the assessment;

4. the Panel failed to assess his credibility and reliability adequately, or perhaps at all, and record its findings in its reasons.

41. Although the insurer’s challenge was formulated in three separate grounds of appeal, they essentially involved two matters, namely (a) an alleged failure on the part of the Review Panel to make an assessment of the credibility and reliability of the claimant’s statements and (b) a failure to set out adequate reasons for the conclusion reached.

(a)   failure to assess credibility and reliability

42. With respect to the first issue, as the primary judge explained, the fact that there were inconsistencies in the accounts given by the claimant to different medical practitioners at different times was a factor to be considered by the assessors in reaching conclusions as to his ability to function independently, but did not require the Review Panel to set out in its reasons findings as to the claimant’s “credibility” or “reliability”. [28] The function of the Panel was, as the primary judge stated, to use “their professional judgment to evaluate his level of functioning.”

    28.    Judgment at [44]-[45] and [47].

43. It is true that, in written submissions extending over 22 pages, the insurer had submitted to the Review Panel that findings as to “credibility” were required and, indeed, could only be made once the claimant had given evidence in court under oath in relation to the inconsistencies. [29] Although the insurer (correctly) did not pursue in this Court the proposition that the Review Panel was, in effect, unable to resolve the inconsistencies, it did pursue the proposition that the Review Panel had failed to take that step. For the reasons noted, the submission must be rejected; as explained by the primary judge, it was based upon a misconception as to the proper function of the Panel.

    29.    Moray & Agnew, Lawyers, submission for insurer, 30 May 2014, p 22.

44. Indeed, the complaint that the Review Panel failed to resolve inconsistencies in the claimant’s statements not only raised a false issue, but was false in fact. The Panel expressly stated that it “examined and took note of circumstances and performance other than his verbal report”. [30]

    30. See last par at [34] above, emphasis added.

45. In both written and oral submissions before this Court, the insurer cast a somewhat jaundiced eye over the detail of the lengthy reasons given by the Review Panel in what can only be characterised as a search for factual error, dressed up as a failure to take a mandatory consideration into account.

46. In addition to complaints about the manner in which the Panel dealt with the credibility of the claimant, there was also an attempt to challenge the factual assessment made by the Panel. Thus, both in written submissions and orally, the insurer complained that the Panel failed to assess the level of the claimant’s functioning in what was described as “his worst stage within a 24 hour period, where the fatigue was most manifest and his dependence on others would be identified and measured”. [31] It was true (and perhaps unsurprising) that reports of incontinence were associated with fatigue, which affected cognitive skills. The evidence in that regard was set out in some detail by the Review Panel. [32]

    31.    Appellant’s reply submissions, 28 April 2016, par 5(d); Tcpt, 03/06/16, p 13(15).

    32.    Review Panel reasons, pp 19-21.

47. On 16 September 2013 Dr Patricia Jungfer, a consultant psychiatrist, prepared a report with respect to the claimant in which she referred to an FIM assessment undertaken in January 2013. She was critical of that assessment on the basis that it failed to take into account “the fluctuations in cognition”; rather, she concluded that, “[i]n terms of his cognition, the FIM assessment should be the worst functioning in a 24-hour period of time.” [33]

    33.    Report, 16 September 2013, par 7.2.

48. The insurer adopted that proposition as if it involved a legal principle, breach of which demonstrated legal error. That was a false approach in three respects. First, the criticism made by Dr Jungfer of the earlier FIM assessment did not demonstrate legal error. Secondly, to the extent that Dr Jungfer’s opinion as to the earlier FIM assessment was a matter to be taken into account, the Review Panel expressly referred to it in its reasons, summarising the effect of the criticism. [34] Thirdly, the Review Panel explicitly identified the fact that “the available evidence suggested that the claimant’s levels of function and independence fluctuated markedly according to prevailing levels of fatigue.” [35] It was that concern which led it to conduct “an updated FIM assessment”. [36]

    34.    Review Panel reasons, p 22.

    35.    Review Panel reasons, p 25.

    36.    Review Panel reasons, p 25.

49. Finally, and quite apart from the other factors relied on by the Review Panel, the Panel found that the levels of impairment reported in 2013 had largely resolved by 2014. [37] The Tribunal also found that whilst he suffered from fatigue, he had learned to recognise the problem and deal with it proactively.

    37. See second last par at [34] above.

50. Accordingly, not only did the Review Panel not fail to deal with the issues raised by the insurer, it dealt with them in what would have been unimpeachable reasoning, even if a factual review had been available.

(b)   failure to provide adequate reasons

51. The foregoing reasons demonstrate that the Review Panel paid careful attention to the issues raised by the insurer, even when they may have been considered peripheral to its primary function and thus beyond judicial review. What has been said also reveals that the reasoning of the Review Panel was detailed, comprehensive and clearly expressed.

52. In the circumstances, it is not necessary to explain in any greater detail why the challenge raised by the insurer must fail. Two aspects of that challenge may be identified, however, for the purposes of illustration.

53. First, it was submitted that the Review Panel failed to explain “why there was such an alleged and dramatic improvement in the claimant’s condition that occurred in such a short space of time or any reasons as to the medical nature of that improvement in circumstances where, inter alia, the claimant had openly expressed a desire not to be included as a participant in the Scheme”. [38] The factual propositions contained within this submission were fallacious. First, the “dramatic improvement” was only apparent if one accepted the earlier assessments of his level of functioning undertaken by others. Secondly, as explained in Wingfoot, the obligation of the Review Panel was to give reasons for its own findings; it was not required to explain why it did not accept findings made by others. Thirdly, while the Panel did not accept the assumption underlying the submission, it did accept that there had been fluctuations in his levels of functioning and independence, a conclusion which led it to undertake its own FIM assessment. Having taken that step, it explained comprehensively its reasons for determining for itself the claimant’s level of independent functioning. The insurer’s submission was specious.

    38.    Appellant’s submissions, par 43(b).

54. A second aspect of that submission, repeated in two further submissions, related to the claimant’s wish not to be included as a participant. Thus, the insurer further alleged that the Panel had failed to assess his credibility (a submission already addressed) and that it “failed to explain why it gave such significant if not overwhelming weight to the claimant’s own account before it in circumstances where the claimant had little or no credibility (because, inter alia, the claimant had openly expressed a desire not to be included as a participant in the Scheme).” [39]

    39.    Written submissions, par 43(d).

55. The repetition of the claimant’s own expressed interest not to be a participant is puzzling. On the one hand, it is unlikely that the present dispute would have arisen had he taken a different view; on the other hand, his opinion in that regard was acknowledged and addressed by the Review Panel in several passages in its reasons.

56. The additional element in this submission depended on the proposition that the Panel gave “overwhelming weight” to the claimant’s own account of his circumstances. That is factually wrong. As already noted,[40] the Review Panel recognised that the claimant may have “tailored his responses in order to achieve an impression of independence” and took account of the objective facts of his actual performance “other than his verbal report”.

    40. See [34] and [44] above.

57. Accordingly, to the extent that the Review Panel needed to explain how it dealt with the claimant’s self-reporting, it did so in unequivocal terms. The contrary submission was simply untenable.

Conclusion

58. For these reasons the appeal from the primary judge must be dismissed and the insurer must pay the costs incurred by the respondents in this Court. I agree with the further reasons of Leeming and Simpson JJA as to the wasted costs of preparing the bulk of the Blue appeal books.

59. Accordingly, the Court makes the following orders:

1. Dismiss the appeal.

2. Order that the appellant pay the costs of the first respondent (Trent Nathan Milton).

3. Order that the appellant pay the costs of the second respondent (the Authority) and the third respondents (the members of the Review Panel) on a submitting basis.

4. Direct that the appellant’s solicitor file by 19 July 2016 any written submissions with respect to the matters raised in [70] of the judgment of Leeming and Simpson JJA, failing which proposed order (5) will be made.

5. Unless the appellant’s solicitor files written submissions as provided in order (4), order that the appellant’s solicitor –

1. not charge his client with any of the costs and disbursements associated with preparing the Blue appeal books,

2. to the extent that such costs or disbursements have already been paid or might be paid in the future, reimburse the client for that amount; and

3. give the client written notification of the terms of this order.

6. Direct that order (5) not be entered until directed by the presiding judge.

60. LEEMING and SIMPSON JJA: We agree that the appeal must be dismissed with costs for the reasons given by Basten JA. We wish to add some observations concerning the costs of this appeal.

61. The appellant provided to the respondent and the Court an enormous appeal book. For example, the Blue books came in four volumes totalling 2094 pages, including the 21 page index reproduced at the beginning of each volume. It seems likely that at least ten sets of those books were prepared (the rules provide for the service of three copies and the filing of four copies: UCPR, r 51.32(2) and (3), and copies will have been required for senior and junior counsel retained by the appellant insurer). In light of the following, the waste in that course may fairly be described as extravagant.

62. First, no reference at all appears to have been made to any document within volumes 1, 2 or 4 of the Blue books.

63. Secondly, the appellant had identified at the outset of the hearing before the primary judge that it was able to identify the particular documents to which reference would be made. They were few. Nevertheless, all ended up being tendered because, as counsel for Mr Milton observed, it would probably take longer to deal with objections. The primary judge indicated, appropriately, and with the acquiescence of the parties, that he would not roam through documents to which he had not been taken.

64. In these circumstances, we find it difficult to envisage any occasion for the reproduction of (literally) thousands of pages on appeal. At no stage in the history of this litigation, at first instance or on appeal, does it appear that a party referred to a single document in volumes 1, 2, or 4 of the Blue books. Most of the thousands of pages reproduced in the Blue books were documents which all parties agreed were not relevant to any submission at trial and on which the primary judge said he would not rely. This is not a case where it would cost more money in order to select the documents relevant and necessary to determine the appeal in accordance with r 51.29(1)(b); cf Lipman Pty Ltd v Emergency Services Superannuation Board [2011] NSWCA 163 at [12]; the documents had been identified in the written submissions served prior to the hearing at first instance.

65. Thirdly, and indicative of the lack of compliance with the obligation to identify the documents relevant and necessary for the hearing and determination of the appeal, the original decision of the assessment panel was not included in the evidence at all, and the decision of the review panel, the very decision from which judicial review was sought, did not appear in any of the Blue books and needed to be supplemented, late, in the Orange book.

66. The failure to include the critical documents recording the decision challenged by the appellant was all the more remarkable given that the course taken by the solicitor on the record for the appellant was to swear an affidavit exhibiting 279 documents, about none of which was any testimonial evidence given whatsoever.

67. There is in our view no occasion for either party to bear the costs of preparing the appeal books. This is not the first time that the same solicitor acting for an insurer has adopted the course of causing thousands of pages needlessly to be photocopied for judicial review proceedings of this nature: see for example Ali v AAI Ltd [2016] NSWCA 110 at [39]-[40]. In SDW v Church of Jesus Christ of Latter-Day Saints [2008] NSWSC 1249; 222 FLR 84, reference was made by one of us at [35] to “the exercise of no clinical legal judgment and the abdication of the responsibility that lies upon legal practitioners to apply thought and judgment in the selection of the material to be presented to the court”. It was said at [36] that in such cases:

“One appropriate sanction, in cases of excess, is an order that, no matter what the outcome of the proceedings, no costs be recoverable from the losing party in respect of the excess, and, further, no costs be recoverable by the solicitor from the client for the excessive copying.”

68. Senior counsel for the appellant obtained instructions, when the Court raised concern about what had occurred, that “we are not, whatever happens, going to seek costs for preparing the Blue books”. We agree; even had the appellant been successful, Mr Milton should not have had to bear the costs of preparing the Blue books. But as presently advised there would appear to be no occasion for either party bearing those costs.

69. The point raised during the hearing was “is it right that, whatever the outcome of the appeal, [either] party have to bear the costs, which must be quite substantial, of that photocopying?” The instructions obtained in response fell short of an unequivocal undertaking by the solicitor acting for the appellant in relation to charging his client. We find it hard to conceive of circumstances when the appellant should have to pay the solicitor-client costs and disbursements of the preparation of thousands of pages which its lawyers might be expected to have advised need not and should not have been copied. Those costs may have been incurred without reasonable cause, and in circumstances for which the solicitor is responsible under s 99(1)(b) of the Civil Procedure Act 2005 (NSW).

70. The limited assurance provided at the hearing suggests the possibility that the position was not made sufficiently clear. Accordingly, we propose that the appellant’s solicitor be given 14 days to supply, if he so chooses, submissions why an order should not be made that none of the costs and disbursements associated with photocopying the Blue appeal books should be billed to his client, and to the extent that such costs or disbursements have already been paid or might be paid in the future, that the client receive a refund. Power to make such an order may be found in either or both of s 99 of the Civil Procedure Act and the supervisory jurisdiction with respect to legal practitioners: see Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [15]-[20] and [52].

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Endnotes

Amendments

05 July 2016 - Correcting name of counsel on coversheet

Decision last updated: 05 July 2016