Insurance Commission of Western Australia v Gargoura

[2020] NSWSC 1786

Supreme Court

New South Wales

Medium Neutral Citation:

Insurance Commission of Western Australia v Gargoura [2020] NSWSC 1786

Hearing dates:

9 December 2020

Date of orders:

9 December 2020

Decision date:

10 December 2020

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)   Set aside the certificate issued by the third defendant dated 23 March 2020.

(2)   Remit the matters the subject of the review by the third defendant to the second defendant for referral to a differently constituted review panel for determination in accordance with law.

(3)   Order the first defendant to pay the plaintiff’s costs of the proceedings.

(4) Grant the first defendant a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).

Catchwords:

ADMINISTRATIVE LAW — Error of law on the face of the record — Right to reasons — Motor Accidents Compensation Act 1999 (NSW) — Whether Review Panel failed to set out sufficient reasons with respect to causation and pre-existing impairment

ADMINISTRATIVE LAW — Procedural fairness — Failure to respond to substantial and clearly articulated argument — Where plaintiff argued that first defendant had a pre-existing injury — Whether Review Panel failed to engage with plaintiff's argument

ADMINISTRATIVE LAW — Jurisdictional error — Whether Review Panel failed to apply Guidelines in determining causation

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), ss 44, 57, 58, 61, 63, 65, 131, 133

Suitors’ Fund Act 1951 (NSW), s 6

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.10

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443

Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22

Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152

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

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

Texts Cited:

State Insurance Regulatory Authority, Medical Assessment Guidelines (11 July 2008), cll 13.2, 16.24

State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (1 June 2018), cll, 1.5–1.7, 1.17, 1.18, 1.31–1.33

Category:

Principal judgment

Parties:

Insurance Commission of Western Australia (ABN 29 939 126 359) (Plaintiff)
Elias Michael Gargoura (First defendant)
State Insurance Regulatory Authority (Second defendant)
Margaret Gibson in her capacity as a medical assessor of the State Insurance Regulatory Authority, Shane Moloney in his capacity as a medical assessor of SIRA, Les Barnsley in his capacity as a medical assessor of SIRA, comprising the medical assessors review panel (Third defendant)

Representation:

Counsel:
M Robinson SC / J Gumbert (Plaintiff)
J Jobson (First defendant)
Submitting appearances (Second and Third defendants)

Solicitors:
Moray & Agnew (Plaintiff)
Stephen Spinak Solicitors (First defendant)
Crown Solicitor’s Office (Second and Third defendants)

File Number(s):

2020/185838

Judgment

Introduction

1. By summons filed on 23 June 2020, the Insurance Commission of Western Australia, the plaintiff (the insurer), seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW), including an order setting aside the decision of the third defendant (the Review Panel) made on 23 March 2020. The Review Panel assessed the % Whole Person Impairment (% WPI) of Elias Gargoura, the first defendant (the claimant), at 13%.

2. The claimant is the only active defendant in the proceedings. The State Insurance Regulatory Authority (SIRA), the second defendant, and the Review Panel have filed submitting appearances.

3. All references to legislation in these reasons are, unless otherwise stated, references to the Motor Accidents Compensation Act 1999 (NSW) (the Act).

4. The summons was filed within the time provided for by Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1), being three months from the date of the decision.

5. In summary, the insurer contended that the Review Panel had failed to give sufficient reasons for its finding of a causal connection between the accident and the injuries to the claimant’s left knee and ankle and had failed to address its submissions that there needed to be a deduction for pre-existing impairment of the left ankle. The grounds will be set out in greater detail when addressed.

6. Before turning to the grounds raised in the amended summons, it is convenient to set out the relevant legislative provisions and the background facts.

Relevant legislative provisions

The Act

7. Section 44 of the Act relevantly provides:

“44      Medical Guidelines of Authority

(1)     The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following:

…

(c)     the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident,

(d)     the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.

…”

8. Part 3.4 of the Act provides for medical assessments. The term “medical assessment matters” is defined by s 57 as being any of the matters referred to in s 58. Of present relevance, s 58(1) provides in part:

“58    Application

(1)    This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as "medical assessment matters"):

…

(d)    whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.”

9. Section 61, which provides for medical assessments, requires a medical assessor or panel to give a certificate as to the matters referred for assessment and the reasons, which is to be conclusive.

10. Section 63, which provides for review of medical assessments, relevantly provides:

“63   Review of medical assessment by review panel

(1)     A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.

(2)     An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.

…

(3)     The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(3A)     The review of a medical assessment 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.

(4)     The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

…

(6) Section 61 applies to any new certificate or new combined certificate issued under this section.

…”

11. Section 65(1) provides:

“65      Authority monitoring and oversight

(1)     Medical assessments under this Part are subject to relevant provisions of Motor Accidents Medical Guidelines relating to the procedures for the referral of disputes for assessment or review of assessments and the procedure for assessment.”

12. Section 131 provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

13. Section 133 relevantly provides:

“133      Method of assessing degree of impairment

(1)     The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.

(2)     The assessment of the degree of permanent impairment is to be made in accordance with:

(a)     Motor Accidents Medical Guidelines issued for that purpose….

…”

14. The effect of the statutory imprimatur in s 133(3)(a) that the assessment is to be made in accordance with the guidelines was confirmed in Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [16]-[22], [44] (Basten JA, Macfarlan JA agreeing) and [108] (Sackville AJA, Macfarlan JA agreeing).

The Guidelines

15. There are two relevant Guidelines in the present case:

1. Medical Assessment Guidelines with respect to the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessments and Review Panel assessments under Part 3.4 of the Act (the Guidelines); and

2. The SIRA Motor Accident Permanent Impairment Guidelines (the PI Guidelines).

16. The Guidelines and the PI Guidelines, which were issued pursuant to s 44(1)(c) and (d) of the Act, apply to medical assessments under the Act: s 133(2)(a).

The Guidelines

17. Clause 13 of the Guidelines relevantly provides:

“13.2    The certificate shall include written reasons for the determination in the form approved by the Authority.”

18. Clause 16.24 of the Guidelines provides:

“16.24    Within 20 days of the final meeting of the panel, and in any case within 60 days of the initial meeting, the panel shall issue its determination and any certificates, accompanied by written reasons for the determination, in the form approved by the Authority, to the secretary who shall within 5 days of the issuing of any certificates, forward them to the parties and the original Assessor."

The PI Guidelines

19. The PI Guidelines relevantly provide:

“Causation of injury

1.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.

1.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1.    The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2.    The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’

This, therefore, involves a medical decision and a non-medical informed judgement.

1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.

…

Evaluation of impairment

1.17   The medical assessor must evaluate the available evidence and be satisfied that any impairment:

1.17.1   is an impairment arising from an injury caused by the accident, and

1.172   is an impairment as defined in clause 1.9 above.

1.18   An assessment of the degree of permanent impairment involves three stages:

1.18.1   a review and evaluation of all the available evidence including: •   medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)

•    medico-legal reports

•    diagnostic findings

•    other relevant evidence

1.18.2   an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and

1.18.3   the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.

…

Pre-existing impairment

1.31    The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored.

1.32    The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre‑existing condition. To quote the AMA4 Guides (page 10): ‘For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.’ Refer to clause 1.218 for the approach to a pre-existing psychiatric impairment.

1.33    Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident.”

[Emphasis added.]

The factual background to the dispute

The claim

20. On 15 February 2015 the claimant was injured in a motor vehicle accident. The insurer is the compulsory third party insurer of the vehicle at fault. The claimant made a claim for damages for non-economic loss, alleging that his % WPI from the accident was greater than 10%. The Medical Assessment Service (MAS) referred the claimant for medical assessment by Dr Ian Meakin, an approved medical assessor (the Assessor).

The insurer’s submissions to the Assessor

21. On 14 May 2019 the insurer provided its written submissions to MAS to be considered by the Assessor. The insurer relevantly submitted:

“…

3.   The insurer refers to and submits that there is material contained within the clinical records of the claimant's GP, Dr Kurrle (A5) from April 2013 which states that ‘Elias has a severe problem with his left ankle which has a pin and screw in place after a severe fracture’. The insurer does not have any further details of this injury. The insurer will prepare an authority for the claimant to sign so that it can obtain a copy of his Medicare history. As the claimant has only recently been released from gaol it has been difficult for the insurer to obtain information from him. The insurer will also need to obtain a copy of the claimant's Justice Health records for the period he was incarcerated.

4.   The insurer refers to the discharge notes of St George Hospital (R2). In those notes there are the results of an x-ray to the left tibia-fibula and ankle, performed on 15 February 2015, the date of the accident. The findings of that investigation state that ‘there is bony irregularity involving the distal fibula and tibia, likely secondary to previous injuries’. Again, the insurer says that it does not have any further details about the previous injuries. Further investigations will need to be undertaken.

5.   The insurer draws the assessor's attention to the clinical notes of Dr Rae (R3). Within those records there is a report of Dr Rae dated 28 July 2015. In that report Dr Rae stated that the claimant has ‘underlying ankle osteoarthritis... which was secondary to an injury as a teenager with previous syndesmotic screw fixation still in situ’. The insurer submits that some, if not all of the claimant's left ankle symptoms are to be attributed to his pre-existing condition in his left ankle.

…

8.   Other than the injury to the claimant’s ankle, the claimant has not reported any of the other injuries identified in the MAS application as being ‘in dispute’, post-accident. The insurer submits that there is no, or insufficient evidence to verify that any of the other injuries are causally related to the accident.”

22. The document referred to in paragraph 3 of the insurer’s submissions was a medical certificate dated 30 April 2013 (three years pre-accident), in which Dr Brian Kurrle said:

“Elias has a problem with his left ankle which has a pin and screw in place after a severe fracture. At present he is encountering great difficulty getting round because of the loss of his licence and the impounding of his motorcycle and the need to report to the Police Station three times a week.”

23. In the report of Dr Rae dated 28 July 2015 referred to in paragraph 5 of the insurer’s submissions (extracted above), Dr Rae said, of present relevance:

“[The claimant] has underlying ankle osteoarthritis on his initial x-ray which was secondary to an injury as a teenager with previous syndesmotic screw fixation still in situ. His ankle however had been asymptomatic prior to this injury and had not been causing him any trouble.

… Running really is not advisable, and this along with heavy manual work will be an ongoing restriction as a consequence of his advanced left ankle arthritis that is now symptomatic post this current fracture. …

I do not think that this hardware is causing him significant symptoms and it is unlikely that it will need to be removed at present….”

The assessment by the Assessor

24. On 21 August 2019 the Assessor issued a certificate which assessed the claimant’s % WPI from the accident at 20% for injuries to his cervical, thoracic and lumbar spines, his left knee, left ankle and foot and scarring to the left lower extremity.

25. Under the heading, “History given by the Insured person”, the Assessor recorded the following:

“… Prior to the motor vehicle accident he had no previous history of painful or traumatic disorder with his axial spine or with his upper and lower extremities. …”

26. Under the heading, “History of the Motor Accident”, the Assessor identified the most obvious injury as “an open compound fracture of the left distal lower limb with a significant degloving injury around the ankle”. Under the heading, “History of Symptoms and Treatment Following the Motor Accident”, the Assessor recorded:

“He reports discomfort in the area of his left knee with pain experienced over the anterior border of the left shin, particularly at the site of the healed, tibial fracture. He feels that his left knee is unstable.”

27. Under the heading, “Current Symptoms”, the Assessor recorded that the claimant has “restriction of active range of motion of the left ankle and subtalar joint due to pain”. The Assessor reviewed the documentation and noted that plain x-rays of the left ankle and leg dated 15 February 2015 showed “Comminuted oblique fracture across the distal shaft of the tibia and fibula associated with multi-lateral displacement and anterior angulation of the distal fragments”. He also noted that plain x-rays taken on 25 June 2016 recorded: “Previous lower tibia and fibular fractures appear well healed; intramedullary nail and screws remain in situ”.

27. The Assessor expressed his conclusions as follows:

“Diagnosis and Causation

The Applicant had no previous painful disorder or clinical injury relating to the axial spine or indeed his left lower extremity or left upper extremity prior to the current motor vehicle accident. He sustained a significant injury on the day of the accident of 15 February 2015. He sustained a soft tissue injury of his cervical, thoracic and lumbar spine as well as to his left shoulder. The most significant injury was to the distal left lower leg and ankle area, where he sustained an open fracture of the left tibia and fibula requiring intramedullary fixation with proximal and distal locking screws and also the presence of a syndesmosis. He demonstrated an anterior cruciate ligament with mild laxity in the left knee and significant restriction of active range of motion of the left ankle and subtalar joint.

There is also damage to the superficial peroneal nerve and the lateral distal sural nerve associated with traumatic and post-surgical scarring of the left lower extremity.

Summary of Injuries Listed by the Parties and Caused by the Accident

The following injuries WERE caused by the motor accident:

…

• Left knee – mild anterior cruciate ligament injury.

• Left ankle/foot – open fracture of the distal tibia and fibula – surgery – peripheral nerve sensory deficit.

…”

[Emphasis added.]

29. The Assessor concluded that there was no prior relevant injury and did not refer to the insurer’s submissions as to the prior ankle injury which had produced osteoarthritis. After having assessed % WPI, he said:

“Pre-existing/subsequent impairment

There are no pre-existing issues to be considered.”

The insurer’s application for review of the Assessor’s assessment

30. On 15 October 2019 the insurer lodged an application for review of the Assessor’s assessment. In support of its application, the insurer filed submissions which included the following:

“…

Error: Causation - Left knee (Page - 1, 6, 9, 12 14)

19.   There are no clinical records which record the claimant suffering from an injury to the left knee, as arising from the motor vehicle accident.

20.   The clinical notes of Justice Health first records that on 13 December 2015 the claimant had a fall while in prison. He reported pain on the medial aspect of the left knee. The claimant refused to attempt to weight bear. This is not evidence of the claimant suffering a left knee injury as a result of the accident. This is the only mention of left knee symptoms in the entirety of the documents available to Assessor Meakin. Again, this is with the exception of the report of Dr Patrick, which the Insurer says cannot be relied upon as it is dated 4 years post accident and the doctor was not given an accurate history of the claimant's medical history prior to the assessment.

21.   The claimant brought the x-ray of the left leg, dated 18 April 2019 to the MAS assessment. This notes the following:

‘The left knee joint is normally aligned. No joint effusion is identified. No established arthropathy, recent fracture or acute bony injury is detected.’

22.   The Insurer submits that the most recent x-ray of the right knee above demonstrates that the claimant's left knee has no pathology, despite his allegation of symptoms.

23.   This is material to the outcome of the assessment as the claimant is assessed at 3% whole person impairment. The insurer submits that this Injury should not be assessable as there is no evidence before the assessor to demonstrate that this injury arose from the subject accident.

Error: Assessor did not identify previous injury to the left ankle Page (3, 8, 14)

24.   The insurer submits that there is clear evidence that the claimant had a previous injury to the left ankle. Such evidence formed part of our initial submissions in our reply to the MAS 2A application.

25.   The Insurer submits that the Assessor has not considered the effect of the claimant's previous left ankle injury when making an assessment as to whole person Impairment.

26.   In the Assessor's certificate dated 21 August 2019 at page 3 in the history provided by the injured person, the claimant reported that he had no previous history of painful or traumatic disorder to his upper or lower extremities. This is incorrect.

27.   Further, at page 8 of the certificate the Assessor does not record the entirety of the findings of the x­ray dated 15 February 2015. The remainder of the findings of that x-ray states:

‘There has been previous screw fixation of the distal tib-fib syndesmosis. There is bony irregularity involving the fibula and tibia, likely secondary to previous injuries.’

28.   It is unclear why the assessor has excluded this information from the MAS certificate.

29.   The insurer refers to (A5) of the claimant's initial MAS application which are the clinical records of Yagoona Medical Centre. Contained in those clinical records is a medical certificate dated 30 April 2013. That medical certificate states the following:

‘Elias has a problem with his left ankle which has a pin and screw in place after a severe fracture.'

30.   The insurer also refers to the clinical notes of Justice Health. Contained within those notes is a letter from Dr Hamish Rae to Dr Peter Pang dated 20 October 2015. In this letter there is clear reference to a previous injury to the same injury site as the subject motor vehicle accident. The letter states:

"The old screw in the talofibular joint remains and on weight bearing views he certainly has talotibial arthritis with collapse into valgus... He has childhood ankle fractures that were treated. He was, however, almost asymptomatic prior to this injury."

31.    Also contained in the Justice Health records is a Clinical Summary Transfer to External Hospital document dated 5 July 2018. This document records the claimant as having an ankle injury since childhood.

32.   The claimant brought an x-ray of the left leg dated 18 April 2019 to the assessment. The findings of this x-ray state the following:

‘There is also an old healed fracture of the distal diaphysis 11cm above the ankle joint line which has healed mild deformity.’

33.   The claimant also brought an x-ray of the left foot, dated 18 July 2019, to the appointment. The findings of this x-ray are as follows:

‘There is irregularity at the navicular which may be due to previous trauma...Old fractures of the distal tibia and fibula detected.’

34.   Clearly, the above evidence demonstrates that the claimant had a pre-existing injury to the same injury site prior to the accident. Further, there is evidence that he was experiencing symptoms in relation to that Injury at the time of the subject motor vehicle accident.

35.   The insurer submits that this is material as there has been no consideration of the extent to which the claimant's pre-existing injury impacted on the claimant's whole person impairment assessment of 6%.”

The decision of the Proper Officer to refer the matter for review

31. On 2 December 2019 the Proper Officer of MAS, Ellen Wood, determined that there was reasonable cause to suspect that the Assessor’s certificate was incorrect in a material respect and referred the insurer’s application for review to the Review Panel. The Proper Officer’s reasons for referral included the following:

“Causation of spinal injuries, left shoulder and knee injuries

...

The applicant also asserts that there is no record of a knee injury related to the motor accident but there is evidence in the clinical notes of Justice Health of a fall while in prison. The applicant also refers to a recent x-ray of the knee which revealed no pathology and asserts that this is in contrast to the complaints of symptoms.”

32. Under the heading, “Pre-existing injury to left ankle”, the Proper Officer referred to the insurer’s submissions to the Assessor regarding the pre-accident injury to the claimant’s left ankle and concluded that the Assessor had “failed to engage with these issues”. The Proper Officer referred the dispute to the Review Panel.

The Review Panel’s assessment of the claimant

33. The Review Panel examined the claimant on 11 March 2020 and issued a certificate on 23 March 2020. Its reasons recorded that all members of the Review Panel confirmed that they had received and considered identified documentation, which included the Proper Officer’s determination, all the documents which had been provided to the Assessor and additional documents provided by the claimant’s solicitors, being consultation notes from the treating general practitioner, Dr Pang, and hospital admission notes from St George Hospital.

34. These documents included (in addition to the documents referred to above) the following. The hospital notes recorded that the claimant was discharged from hospital (after the accident) on 4 March 2015 non-weight bearing with crutches and that he presented to the Emergency Department on 7 March 2015 saying that he had fallen. The notes record, in respect of the fall, “nil acute injury, discharged”. The notes also record that on the following day he denied any significant exacerbation of pain as the result of the fall.

35. In a report from Dr Rae to Dr Pang dated 20 October 2015, Dr Rae noted:

“Repeat x-rays performed today show complete bony union of the fractures. The old screw in the talofibular joint remains and on weight bearing views he certainly has talotibial arthritis with collapse into valgus. Much of this x­ray appearance predates this current injury as it was present on the original x-ray and CT. He had childhood ankle fractures that were treated. He was; however, almost asymptomatic prior to this injury.”

36. In a Justice Health clinical summary dated 4 July 2018, it was noted under “health conditions” that the claimant had an ankle injury “since childhood”.

37. In a report of an x-ray dated 18 April 2019, Dr Rashid reported to Dr Kurrle in relation to the x-ray of the claimant’s left leg:

“Left tibia and fibula:

Status post previous ORIF of the left tibia by an intramedullary rod with 2 proximal and 3 distal interlocking screws. The internally fixed distal diametaphyseal fracture has healed osseous union in anatomic alignment. There is also an old healed fracture of the distal diaphysis 11cm above the ankle joint line which has healed mild deformity.

…”

[Emphasis added.]

38. There was also an ambulance report dated 14 April 2015 which recorded the following history:

“pt sitting in chair, moon boot on L leg. States was attempting a transfer between crutches and wheelchair when states felt dizzy and fell. Pt states he lost consciousness. Unwitnessed. Pt now c/o [complains of] lumbar/thoracic central back pain, L knee and R shoulder/elbow pain…”

39. In its reasons which were attached to the certificate the Review Panel said, of present relevance:

“A   Evidence Considered

The Panel considered all of the available evidence and decided that:

A re-examination of the claimant was necessary in order to reach a decision, because it was necessary to determine causation of the injuries from the subject accident by interviewing Mr Gargoura and reassessing the impairment of the injuries.

Accordingly, arrangements were made for the claimant to be examined by Assessor Moloney and Assessor Barnsley on 11 March 2020. It was decided that all injuries would be examined at that time. The Panel agreed to reconvene on 11 March 2020 to discuss the matter further.

The Panel decided that additional information would assist them to make a decision, because the Panel wanted to assess any pre-existing injuries by means of the GP consultation notes and review the relevant x-rays.

Accordingly, the Panel instructed the secretary to issue a notice to both parties requesting provision of the following information, to be provided by 1 March 2020:

The treating GP notes for five years prior to the accident and x-rays that had been taken since the accident.

…

History as given by the injured person

…

[The claimant] stated that he had a previous fracture to his left ankle at the age of four when he fell off a pushbike. He stated that this injury was asymptomatic [at the] time of the motor vehicle accident.

…

Clinical examination

...

Knees

On inspection of the knees there were no effusions and no crepitus on passive movement and on ligament testing there was mild laxity in the left anterior cruciate ligament.

…

C.   Panel Deliberations

Injuries

•   Left knee - anterior cruciate ligament injury

There is documentation in the St George Hospital discharge notes on 7 March 2015 which was three weeks after the accident. It was recorded that Mr Gargoura lost control of his crutches and fell heavily on his left knee. The Panel also considers that there was significant impact to his left knee which resulted in the fracture to the tibia and fibula. The Panel agrees with Assessor Meakin that this injury was due to the subject accident.

At the time of the examination by the Panel it was determined that there was mild laxity of the anterior cruciate ligament in the left knee. Using table 64 of AMA 4th Edition guidelines, this gives an impairment of 3% WPI. Assessor Meakin came to the same conclusion.

•   Left ankle/foot - fracture of tibia and fibula with peripheral nerve sensory deficit

Is well documented in the discharge summary from St George Hospital and by the treating GP that Mr Gargoura sustained a significant fracture to his distal tibia and fibula which required open reduction with surgical implementation and degloving injury associated with peripheral nerve damage. Assessor Meakin came to the same conclusion.

The ankle and hind foot were assessed using range of movement using table 42 and 43 of AMA fourth edition. Motor Accident Permanent Impairment Guidelines 1 June 2018 stated that the highest impairment be used when assessing impairment. Therefore, there is 3% WPI for the ankle which is combined with one percent WPI for the hind foot and totals 4% WPI.

On assessment of the peripheral nerves of the left lower limb, the Panel determined there was dysaesthesia over the dorsum of the left foot which is supplied by the sural nerve and over the medial ankle and anterior, involving the superficial peroneal nerve. Using table 68, the impairment is 2% WPI for the sural nerve and 2% superficial peroneal nerve. This gives a total impairment of 4% WPI.

…”

40. Under the heading, “Panel Decision”, the Review Panel listed the injuries which it found had been caused by the accident, without expressing its reasons for the findings. It set out a table in which it identified the relevant body part and other matters, including “% WPI from pre-existing OR subsequent causes” (which indicated a score of 0% for each body part) and “% WPI due to motor accident”, which set out that the claimant’s % WPI as a result of injuries to his lumbar spine (0% WPI), left shoulder (0% WPI), left knee (3% WPI), left ankle/foot (8% WPI) and scarring to the lower left extremity (2% WPI).

41. The Review Panel revoked the Assessor’s certificate and issued a new certificate which determined the claimant’s % WPI was 13%.

Grounds of review

42. The insurer relied on the following grounds (set out in paragraph 2 in the summons):

“(a) The review panel was obliged to set out lawful reasons for its determination pursuant to section 61(9) of the Act and SIRA's Medical Assessment Guidelines dated 1 October 2008 made pursuant to sections 44(1)(d) and 65(1) of the Act. The review panel failed to set out proper or lawful reasons for its decision in respect of causation of the alleged left knee injury; left ankle injury, and the issue of pre-existing impairment of the left ankle.

(b)    The review panel failed to respond to a substantial and clearly articulated argument advanced by the insurer in its MAS 2R submissions, annexed to the reply to the claimant's application for assessment, and its MAS 5A submissions, annexed to its application for review of Assessor Meakin's assessment, which were before the review panel. The argument was that:

i.    The left ankle was symptomatic prior to and at the time of the subject accident.

ii.    Evidence from just 5 months after the accident showed that the claimant had osteoarthritis in the ankle which was attributable to a former childhood injury.

iii.    There was no record of the knee injury relating to the MVA and that an x-ray of the left knee revealed no pathology of the injury despite the claims and asserted symptoms of the claimant.

iv.    The x-ray of the left leg, dated 18 April 2019, demonstrated that there was no pathology in the left knee.

This was a constructive failure to exercise jurisdiction and denial of procedural fairness.

(c) The review panel was required by section 58(1)(d) of the Act to determine ‘whether the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%’. Further, by the operation of section 65(1) of the Act, medical assessors and medical assessments under part 3.4 of the Act are subject to the relevant provisions of the Motor Accident Medical Guidelines relating to the assessment. Effective from 1 June 2018, the second defendant published the ‘Motor Accident Permanent Impairment Guidelines’ (‘Pl Guidelines’) which the review panel here was bound to apply in making its medical determination. The Pl Guidelines were made pursuant to section 44(1)(c) of the Act and also apply pursuant to section 133(2)(a) of the Act. Clauses 1.5 to 1. 7 of the Pl Guidelines set out the requirements for making a causation of injury finding in medical assessments. In making its medical assessment here, the review panel failed to apply or have regard to the said guidelines as it was required to do, in respect of the alleged injury to the left knee. The review panel failed to perform its statutory task, in that it failed to conduct a lawful assessment of the causation of the alleged injury to the left knee.

(d)    With respect to the left ankle injury, the review panel constructively failed to exercise its jurisdiction and statutory function in that the review panel failed to have regard to and to apply clause 1.31 of the Pl Guidelines, which mandated that the review panel had to calculate and subtract the impairment caused by a pre-existing condition/injury.”

43. It contended that each of the grounds was an error of law on the face of the record or a jurisdictional error, including a constructive failure to exercise a statutory power.

Consideration

44. The reasons of the Review Panel form part of the record as they are required to be given and form part of the certificate: s 61(9) of the Act and Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 at [27] (Leeming JA, Tobias AJA agreeing).

Ground (a): alleged failure to give sufficient reasons

45. The Review Panel’s reasons are entitled to a “beneficial construction”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. The plurality (Brennan CJ, Toohey, McHugh and Gummow JJ) said at 272:

“[T]he reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

46. In the context of the scheme under the Act, Basten JA in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 outlined the content of the duty to give reasons as follows:

“Adequacy of reasons

[121]     Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

[122]     On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis (at 273–274) (Mahoney JA) and (at 281–282) (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.”

47. The content of a statutory duty for such a panel to give reasons was described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [55] as follows:

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

48. The Court of Appeal has held that the Victorian scheme which was considered in Wingfoot is analogous to the scheme which applies to medical assessors, including review panels under the Act: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [2] (Basten JA) and [40] (Leeming JA, Beazley P agreeing).

49. The insurer made substantial submissions to the Review Panel concerning the pre-existing injury to the claimant’s left ankle and the apparent lack of causal connection between any injury to the claimant’s left knee and the accident, particularly in the context of a subsequent recorded injury to the claimant’s left knee while he was in gaol. These are reproduced above and indicate, through contemporaneous clinical records of the claimant’s treating doctors, objective evidence of a pre-existing, symptomatic injury of the left ankle. It was a matter for the Review Panel to make what it saw fit of this evidence but it could not simply disregard it or not refer to it as it had been squarely raised by the insurer in its submissions and had to be addressed.

50. Mr Jobson conceded that the Review Panel had not explained why it had not addressed the effect, if any, of the prior injury to the left ankle, but contended that it was not required to do so because it ought be taken to have been satisfied that there was no prior impairment, as is evident from the table in its reasons. He submitted that the Court ought infer that this was the basis for the figure of 0% pre-existing WPI in the table. Further, he argued that it was plain from the fact that the Review Panel required the treating GP’s notes for five years prior to the accident and x-rays that had been taken since the accident that it appreciated the importance of the pre-existing injury to the left ankle. He contended that this was sufficient to indicate that the Panel had considered all the evidence relating to the prior injury and decided that no deduction ought be made under cl 1.31 of the Guidelines.

51. Mr Jobson submitted that it was reasonable to assume that, given the nature of the accident, where the claimant’s left foot was wedged between the bike and the car, which resulted in a fracture, the left knee would have been injured in the process, although there was no finding to that effect and no indication in the clinical notes that this had occurred.

52. I reject Mr Jobson’s submissions. The Review Panel did not address the pre-existing injury to the claimant’s left ankle at all. It did not set out its actual path of reasoning for concluding (if indeed it did so conclude) that no adjustment needed to be made to the impairment of the claimant’s left ankle for the pre-existing injury. Indeed, although it requested documents which were germane to the issue, its reasons do not reveal that it gave any consideration whatsoever to the insurer’s submissions relating to the pre-existing injury to the left ankle. It follows that the Review Panel did not explain why it preferred the conclusion for which the claimant contended (that no deduction was required because the left ankle was asymptomatic prior to the accident) over the conclusion for which the insurer contended (that a deduction ought be made to allow for the osteoarthritis in the left ankle which was present before the accident and symptomatic as a result of an earlier injury).

53. While the reasons of the Review Panel are entitled to a beneficial construction, it is not for this Court to guess the Review Panel’s chain of reasoning or to formulate reasons which might have justified the Review Panel’s decision. The statutory obligation to give reasons is not fulfilled by ambiguous silence and the expression of unreasoned conclusions. Although it is reasonable to infer that the Review Panel was, at least at some point, alive to the issue relating to the left ankle since it required the treating general practitioner’s notes for the previous five years to be provided (presumably with a view to determining whether the old injury in the claimant’s left ankle had been symptomatic during that period), it would appear that the issue slipped the Review Panel’s collective mind by the time it came to assess the claimant and to give substantive reasons for its assessment.

54. In relation to the left knee, the Review Panel found that the claimant had injured his left knee when he fell from crutches three weeks after the accident, although the contemporaneous evidence showed that the injury was relatively minor. It neither addressed the nature of the injury nor explained why it was caused by the accident. Nor did it address the effect of the reportedly substantial injury the claimant subsequently sustained to his left knee on 13 December 2015. Although the Review Panel’s reasons indicated that it was satisfied that the injury sustained by the claimant when he fell from his crutches three weeks after the accident was caused by the accident, it did not explain why this was so or how the claimant’s symptoms on examination could be attributed to the fall in March 2015 rather than to the incident in December 2015 (which was unrelated to the accident).

55. One might infer that the Review Panel considered that the fall from the crutches was sustained because the claimant was on crutches because of the injuries sustained in the motor vehicle accident. However the Review Panel did not actually say so. Although it referred to the reasons of the Assessor, the Assessor did not refer to the fall from the crutches at all in his assessment of permanent impairment or the fall in gaol documented in the records from Justice Health. Further, the Review Panel neither referred to, nor explained, its conclusions about the subsequent injury to the left knee which the claimant sustained while he was in gaol and what impact that had on the assessment of permanent impairment.

56. The Review Panel was obliged to comply with its statutory obligation under s 61(9) to give reasons. It failed to do so. The issues relating to the left ankle and the left knee needed to be addressed in the Review Panel’s reasons. For the reasons given above, ground (a) has been made out. This amounts to a jurisdictional error and is sufficient to warrant the relief sought in the summons that the Review Panel’s decision be set aside.

Ground (b): alleged failure to respond to a clearly articulated argument put by the insurer

57. For the reasons given above, the grounds in (b) i, ii, iii and iv have been made out as the Review Panel failed to address the insurer’s submissions that a deduction ought be made to take account of a pre-existing injury in respect of the left ankle and did not engage with the insurer’s arguments about the injury to the left knee, including as to its causation. This amounts to a denial of natural justice, which constitutes a jurisdictional error: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ), as applied in the present statutory context in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [19]-[22] (Basten JA, Beazley and Macfarlan JJA agreeing) and Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [109] (Gleeson JA, Macfarlan and Leeming JJA agreeing).

Ground (c): alleged failure to comply with clauses 1.5 to 1.7 of the PI Guidelines

58. The insurer contended, as set out in the ground above, that the Review Panel had failed to “conduct a lawful assessment of the causation of the alleged injury to the left knee”. Although it was open to the Review Panel, pursuant to cll 1.5-1.7 of the PI Guidelines, to attribute the injury sustained when the claimant fell from his crutches to the accident, the reasons of the Review Panel are entirely inadequate to explain its path of reasoning or how it applied cll 1.5 to 1.7 of the Guidelines to the determination of causation. As referred to above, there was no consideration of the effect of the subsequent (apparently more serious) injury to the claimant’s left knee in gaol.

Ground (d): alleged failure to have regard to and apply cl 1.31 of the PI Guidelines with respect to the left ankle injury

59. This ground is related to ground (a) and, for the same reasons, has been made out. Clause 1.31 of the PI Guidelines plainly applied since the insurer relied on an earlier injury to the left ankle, which was sufficient to cause symptoms and osteoarthritis, as warranting a deduction for prior impairment. The Review Panel failed to address this issue and, accordingly, failed to assess the claimant’s % WPI in accordance with the PI Guidelines, as it was obliged to do: s 133(2)(a).

Relief

60. As the Review Panel’s decision was infected by jurisdictional error (failure to give reasons, failure to address clearly articulated arguments and failure to apply relevant guidelines) and error of law on the face of the record (failure to give sufficient reasons), it must be set aside. The matter must be remitted to SIRA to be determined in accordance with law.

61. Mr Robinson SC, who appeared with Ms Gumbert for the insurer, sought an order that the matter be remitted to a differently constituted review panel. Mr Jobson did not submit to the contrary. I am persuaded that this is an appropriate course. There is a risk of apprehension of bias if the matter were to be returned to the same assessors who constituted the Review Panel.

Costs

62. It was common ground that costs ought follow the event in accordance with the general rule: UCPR, r 42.1.

63. Mr Jobson sought a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW). It is appropriate that such a certificate be granted as the claimant did not contribute to the Review Panel’s errors of law on the face of the record or jurisdictional errors.

Orders

64. For the reasons given above, I make the following orders:

1. Set aside the certificate issued by the third defendant dated 23 March 2020.

2. Remit the matters the subject of the review by the third defendant to the second defendant for referral to a differently constituted review panel for determination in accordance with law.

3. Order the first defendant to pay the plaintiff’s costs of the proceedings.

4. Grant the first defendant a certificate under s 6 of the Suitors’ Fund Act 1951 (NSW).

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Decision last updated: 10 December 2020