Motor Accidents Insurance Board v Wright - [2016] TASSC 13

[2016] TASSC 13

COURT: SUPREME COURT OF TASMANIA

CITATION: Motor Accidents Insurance Board v Wright [2016] TASSC 13

PARTIES:  MOTOR ACCIDENTS INSURANCE BOARD
  v
  WRIGHT, Howard

FILE NO:  625/2015
DELIVERED ON:  18 March 2016
DELIVERED AT:  Hobart
HEARING DATE:  21 October 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Insurance – Motor vehicles – Compulsory third party insurance and like schemes – Risk or liability – As consequence of collision with motor vehicle – Death resulting directly from a motor accident.

Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), s 23.
Motor Accidents (Liabilities and Compensation) Regulations 2010 (Tas), Sch 1, Pt 4.
Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89; Kaplan v Lee-Archer (2007) 15 VR 405; Berichon v R [2013] VSCA 319; Best v The Queen [2015] VSCA 15, referred to.
Aust Dig Insurance [1055]

REPRESENTATION:

Counsel:
             Board:  S Taglieri
             Respondent:  P L Jackson SC
Solicitors:
             Board:  Pedder Schuh Lawyers
             Respondent:  Tasmanian Compensation Lawyers

Judgment Number: [2016] TASSC 13
Number of paragraphs: 58

Serial No 13/2016
File No 525/2015

MOTOR ACCIDENTS INSURANCE BOARD v HOWARD WRIGHT

REASONS FOR JUDGMENT PEARCE J

18 March 2016

On 21 March 2013, Janet Wright, a resident of Tasmania, was the front seat passenger in a car being driven by her husband, Howard Wright. The car was involved in a collision on Gravelly Beach Road near Blackwall. Mrs Wright died almost four months later on 10 July 2013. At the time of the accident, and at the time of her death, Mr Wright was partially dependent on his wife. On 27 May 2015 the Motor Accidents Compensation Tribunal ("the Tribunal"), constituted by Mr S R Carey, determined that Mr Wright is entitled to be paid a death benefit under the Motor Accidents (Liabilities and Compensation) Regulations 2010 ("the Regulations"), following his wife's death. This is an appeal by the Motor Accidents Insurance Board ("the Board") against the Tribunal's determination: Wright v Motor Accidents Insurance Board [2015] TASMACT 1.
The Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), relevantly provides that the Board must pay the benefits prescribed by the regulations if a resident of Tasmania "suffers personal injury resulting directly from a motor accident", which occurs in Tasmania: s 23. The term "personal injury" is defined in the Act, s 2, to include death. The regulations, Sch 1, Pt 4 provide, "Where the death of a person results directly from a motor accident and the person is survived by one or more dependants, a lump sum is payable as death benefits". Mr Wright's claim for death benefits was refused by the Board. He referred the refusal to the Tribunal for determination: the Act, s 28(2)(b).
About 12 years before the motor accident Mrs Wright was diagnosed with colon cancer. The only issue for determination by the Tribunal was whether Mr Wright had established that his wife's death resulted directly from the accident. Before the Tribunal, the Board contended that due to the effects of her cancer and her decision, after the motor accident, to cease treatment, the Tribunal should not be satisfied that Mrs Wright's death resulted directly from the accident.

Grounds of appeal

The notice of appeal, dated 16 June 2015, contains four grounds. For convenience and clarity I will refer to them as grounds 1 to 4 although they are identified differently in the notice:
"1 The Tribunal failed to give a meaning to the word 'directly' in section 23(2B) of the Motor Accidents (Liabilities and Compensation) Act 1973 and Part 4, Regulation 1 of the Motor Accidents (Liabilities and Compensation) Regulations 2010;
2    The Tribunal failed to determine whether the word 'directly' limits or adds any requirement to the results from test of causation of injury from motor accident;
3    The Tribunal erred in failing to determine whether the death of Janet Mary Wright was the direct result of the motor accident on 21 March 2013, but instead determined whether it was the result of the said motor accident;
4    It was not properly open to conclude that the Respondent was liable to pay death benefits in respect of the death of Janet Mary Wright because her death:
i Did not result directly from a motor accident for the purposes of section 23 (2B) of the Motor Accidents (Liabilities and Compensation) Act 1973;
ii    Did not result directly from a motor accident for the purposes of Part 4, Regulation 1 of the Motor Accidents (Liabilities and Compensation) Regulations 2010."
At the hearing of the appeal the Board sought to add two additional grounds. The notice was amended by adding this ground. I will call it ground 5:
"5 That the Tribunal erred in finding that the peritonitis from CDI (clostridium difficile infection) was the probable cause of death, as such a finding was not reasonably open on the facts and expert evidence before the Tribunal."
I ruled that I would hear argument on the proposed second new ground and decide whether the amendment would be allowed as part of these reasons. That proposed ground, which I will refer to as ground 6, is in these terms:
"6 That the Tribunal erred by embarking on its own inquiry and receiving evidence without giving the parties an opportunity to be heard or opportunity to provide further expert evidence about the probable cause of death."

Determination of references to the Tribunal

The Act, s 28(1)(b), provides that, in the first instance, the right of a person to be paid any scheduled benefit is to be decided by the Board. Either the Board, or a person aggrieved by a determination of the Board, may refer the matter of the right of a person to a scheduled benefit to the Tribunal: s 28(2) and (3). The Tribunal is constituted under the Act, s 12. Section 12(7) provides:
"(7) Section 8 and Part 3 of the Commissions of Inquiry Act 1995 apply to matters referred to the Tribunal as if —
(a) the Tribunal were a Commission established under section 4 of that Act; and
(b) the matter were the matter into which the Commission had been directed to inquire under that Act.
The Commissions of Inquiry Act 1995 ("the COI Act") provides for the establishment, by the Governor, of a Commission to inquire into and report on a particular matter. The Act does not limit the type of "matter" which may be the subject of an inquiry, but such matters may include allegations of misconduct. Section 8 of the COI Act concerns the immunity of the Commissioner and counsel and is of no present relevance. Part 3 is entitled "Conduct of Inquiries". Given that the principal function of the Tribunal is to determine, between parties, a disputed entitlement to scheduled benefits, not all of the provisions of Pt 3 sit comfortably in their application to proceedings before the Tribunal. For example, because of the types of matters which may be the subject of a Commission proceeding, the Act gives the Commission certain powers of inquiry. It may apply for a warrant authorising entry, search and seizure of property. It may apply for surveillance warrants. It has power to give notice requiring the attendance of witnesses and the production of documents, a power to require answers to questions posed by the Commission notwithstanding self-incrimination, and a power to find and certify contempt. Section 19 provides that, in its report to the Governor, a Commission may make a finding of fact on or in respect of any matter into which the Governor has directed it to inquire. However, in its report a Commission must not express a conclusion of law in respect of the legal liability of a person, and the report of a Commission is not admissible in legal proceedings to prove a fact found by the Commission: s 19(2) and (3).
The relevance and application of other provisions in Pt 3 of the COI Act to Tribunal proceedings is clearer. They include, as it applies to the Tribunal in this case, that:
·     hearings are open to the public, although in some circumstances hearings may be closed: s 13;
·     a person appearing before the Tribunal may, with its permission, be represented by counsel: s 15;
·     the Tribunal is not bound by any rule of law which relates to evidence in judicial proceedings: s 20;
·     witnesses may be examined under oath: s 25.
Section 28 of the Act provides:
"(4) The Tribunal shall make such determination on a matter referred to it as it considers proper in the circumstances.
(5) A determination under subsection (4) binds —
(a) the Board; and
(b) any other party to the reference to the Board."

Appeals to the Supreme Court

A person aggrieved by a determination of the Tribunal under s 28(5) may appeal to the Supreme Court, which may confirm, vary or rescind the determination: s 28(6). The Act is silent about the nature of the appeal. It is an appeal from a statutory tribunal and so is subject to the Supreme Court Civil Procedure Act 1932, s 6(3), and Div 4 of Pt 27 of the Supreme Court Rules 2000. Rule 704 makes rr 689 to 694 applicable. Rule 693 provides:
"(1) The Court or a judge hearing an appeal has all the powers conferred on the Full Court by rule 672.
(2)   If any document required to be delivered under rule 689 has not been delivered, the Court or a judge may —
(a) require a party to supply a copy of any affidavit or other documentary evidence filed in the inferior court; or
(b) order a witness examined at the trial in the inferior court to be produced and examined on the hearing of the appeal.
(3)   The Court or judge has the power to draw any inference of fact that might have been drawn by the inferior court.
...
(7)   The Court or judge may make any order with respect to an appeal from an inferior court which may be just for the purpose of ensuring the determination of the merits of the real question in controversy between the parties.
(8) Subject to section 47(1) of the Act, the Court or judge, on hearing an appeal from an inferior court, may —
(a) give or make any judgment the Court or judge considers should have been given or made by the inferior court; and
(b) set aside, reverse, alter or vary any judgment given or made by the inferior court; and
(c) make any other order the Court or judge considers appropriate."
This type of appeal is by way of rehearing, in which the appeal court re-determines the issues raised upon the hearing of the appeal as at the date of the rehearing, relying on the material that was before the court or tribunal appealed from, subject to the exercise of any power to receive additional evidence: Fernando v Medical Complaints Tribunal (No 2) (2003) 12 Tas R, 337 per Blow J (as he then was). In that case his Honour considered the nature of an appeal from a decision of the Medical Complaints Tribunal, established under the Medical Practitioners Registration Act 1996, also a statutory tribunal to which the provisions just referred to apply. There is nothing in the appeal provisions now under consideration which suggests a different conclusion.
This Court can only exercise its appellate power if satisfied that the Tribunal erred: Henry v Motor Accidents Insurance Board (2004) 42 MVR 227, per Evans J, citing Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, per Gleeson CJ, Gaudron and Hayne JJ at 203 [14], and Kirby J at 224 [75]. As Evans J earlier explained in Adamson v Pharmacy Board of Tasmania[2004] TASSC 32 [21]:
"Ordinarily, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. This is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors ((2000) [2000] HCA 47; 203 CLR 194), Gleeson CJ, Gaudron and Hayne JJ, 203 [14], see also Kirby J, 224 [75]. Error is not demonstrated by putting before the appellate court additional evidence which shows that a primary decision-maker made a decision in ignorance of relevant evidence which was not before that decision-maker; Cleaver v Powell [1979] Tas SR 134, Green v Fletcher [1988] TASSC 4; [1988] Tas R 59 and Webster v White A58/1991."
His Honour repeated his view in Martin v Medical Complaints Tribunal (2006) 15 Tas R 413 at [26].

The proceedings and evidence before the Tribunal

Before the Tribunal both Mr Wright and the Board were represented by counsel. All of the evidence was tendered by agreement. No witnesses were called. Some evidence was in the form of agreed facts. Other evidence was in the form of medical reports and medical records. Mrs Wright was born on 31 July 1936. She was thus aged 77 at the time of the accident and when she died. Mrs Wright's marriage to Mr Wright, and his partial dependency on her, was agreed. It was agreed that as a result of the collision Mrs Wright suffered injuries. The Tribunal also had a medical certificate of the cause of death, the terms of which I will refer to later in these reasons.
Medical reports from a medical oncologist, Dr Jeremy Power, dated 28 May 2014 and 28 January 2015, were tendered on behalf of Mr Wright. A written opinion prepared on 11 November 2014 by Dr Yeliena Baber, a forensic pathologist, was tendered on behalf of the Board. The Tribunal was also provided with extracts from the records of the Launceston General Hospital. Not all of the hospital's records concerning Mrs Wright were in evidence before the Tribunal. The records were confined to two admissions. The first commenced on 21 March 2013, the day of the motor accident, and concluded on 21 June 2013. The second commenced on 6 July 2013 and concluded on Mrs Wright's death four days later. Neither Dr Power nor Dr Baber was involved in Mrs Wright's treatment during either hospital admission. Their reports were prepared after examining the hospital records. Neither Dr Power nor Dr Baber, nor the author of any of the hospital notes, were called to give evidence or be cross-examined. Submissions were made to the Tribunal in writing.
Mrs Wright's medical background is explained in Dr Power's first report, and, to some extent, by historical references in the hospital records. She was first diagnosed with metastatic colon cancer in 2001. Over more than 10 years she had multiple palliative treatments of chemotherapy. The median survival period for a person with newly diagnosed metastatic colon cancer is two years. Mrs Wright survived much longer than that. She responded to each new course of treatment although, at times, her cancer progressed rapidly between treatments and, over time, she experienced more and more side effects. At the date of the accident Mrs Wright was in the course of palliative chemotherapy aimed at extending her life. She received a dose of chemotherapy on 15 March 2013.
In the accident on 21 March 2013 Mrs Wright suffered a fracture of a vertebrae in her cervical spine, an open fracture of her left ankle, a fracture of her right ankle, a fracture in her upper tibia and a fracture of her left second metacarpal. There is no dispute that those injuries were a direct result of the accident. She was admitted to hospital. As a consequence of her injuries, Mrs Wright's palliative chemotherapy was discontinued. According to Dr Power, continued chemotherapy was contraindicated because of the negative effect it would have had on her immune system, her wound and injury healing, as well as other side effects. Dr Power was asked to give an opinion on Mrs Wright's pre-accident life expectancy and the impact of the accident. He reported:
"Due to rapid progression at times when she had pauses in her chemotherapy in the past, I think without ongoing treatment, her prognosis would not have extended beyond six months, most likely around the three month duration. Had she recommenced therapy and been able to tolerate ongoing treatment I anticipate that she would have survived beyond six months, although the prognosis beyond that is very uncertain"
After referring to Mrs Wright's much longer than usual survival, Dr Power continued:
"This may have indicated that, had Janet continued treatment, she could possibly have survived for twelve months or even longer. Unfortunately, our tools for prognostication are somewhat limited for someone with Janet's malignancy …
There is little doubt that Janet's cancer progressed over the period of time that she stopped the chemotherapy, and hence…, in the absence of ongoing treatment, we would certainly expect the prognosis from the point of view of her metastatic bowel cancer to have been adversely impacted by the inability for Janet to receive ongoing chemotherapy to control the cancer"
Immediately upon her admission Mrs Wright required surgery to fix the fractures to her legs. Treatment of the tibial fracture required placement of an external fixation device on her left leg. In the course of her first post-accident admission Mrs Wright developed an antibiotic resistant staphylococcus bacterial infection at a pin site of the fixation device. She required a course of vancomycin antibiotics. As expressed by Dr Baber, this treatment was "complicated by" a Clostridium difficile infection. Dr Power referred to Clostridium difficile as a toxin and described the condition and treatment in these terms:
"This bowel infection is most often a complication of antibiotic treatment, and Janet was treated with antibiotics due to the higher risk of infection and potential disastrous complications that can arise in the setting of trauma and particularly open fractures, such as those sustained by Janet in the motor vehicle accident. The Clostridium difficile infection during her inpatient stay after the motor vehicle accident was treated initially with a course of metronidazole over the period 30^th May to 9^th June 2013. This resolved, but unfortunately a recrudescence of diarrhoea occurred later in the admission and it appears that repeat stool samples confirmed recurrence of Clostridium difficile-related diarrhoea and Janet commenced another course of metronidazole on 17 June 2013, which is documented as having been administered three times a day as an inpatient until her discharge on 21^st June 2013".
Mrs Wright remained an inpatient until her discharge home on 21 June 2013. She was re-admitted to the hospital on 6 July 2013, after having presented with a four day history of lower abdominal pain. A faecal sample taken on 6 July 2013 disclosed the continuing presence of the Clostridium difficile toxin. After having been re-admitted to hospital Mrs Wright declined any further investigations. She declined further treatment. Antibiotics were withdrawn and she died four days later. The medical certificate of her cause of death is signed by "Julia Lachowicz, Launceston General Hospital". It certifies the disease or condition directly leading to Mrs Wright's death as peritonitis with onset four days prior to death. The certificate also certifies what are referred to as "antecedent causes", described in the certificate as morbid conditions giving rise to the direct cause of death, as metastatic colon cancer and "Clostridium difficile colitis". Dr Lachowicz did not give evidence.
The hospital records of Mrs Wright's admission commencing 6 July 2013 include the following entries:
·     7 July 2013: "… sudden onset abdominal pain and diarrhoea … Pain started a few days ago … On examination, abdominal tenderness with percussion … Impression Peritonitis? Explained that management would be surgical and, without, Mrs Wright will not survive. Mrs Wright currently doesn't want surgery".
·     7 July 2013: "Patient with metastatic colon cancer with likely peritonism secondary to bowel perforation. And patient and family does not want any active Mo and not to have surgery… Discussed in the presence of husband and son and daughter-in-law:
®Understands the poor prognosis
®And the palliative approach
®And that patient will not survive …
Syringe driver to commence."
·     7 July 2013: "CT hasn't happened yet. Cancelled by home team – patient to be palliated. I have reiterated that at this stage we do not have a confirmed diagnosis. As far as I am aware patient has evidence of clostridium difficile infection (? Colitis) and is for CT to exclude complication of this. Bowel perforation is not confirmed. If patient doesn't want to pursue investigation and wishes for comfort measures, I think this is perfectly acceptable as long as she understands the diagnosis is unclear (she could just have colitis which responds to oral antibiotics for instance). If her decision is based on her belief that a perforation is certain then I am less comfortable with palliation without further investigation".
·     8 July 2013: "Acute onset abdominal pain and clinical situation is consistent with peritonitis and bowel perforation though no Xray confirmation at this stage. Antibiotics have been withdrawn and treatment focus is now on end of life care".

In his reports, Dr Power emphasised that he was not involved in Mrs Wright's treatment during her final hospital admission, and that he relied on opinions expressed in the notes of others. He was asked to give an opinion about the likely cause of the peritonitis and expressed the following opinion:
"The relapse in diarrhoea and the fact that the Clostridium difficile was isolated from stool samples upon presentation for her terminal admission would strongly raise the possibility that her peritonitis may have been related to this infection. As stated previously, this most likely arose as a complication of necessary antibiotic administration following her admission following the motor vehicle accident and hence could be regarded as a likely complication of necessary treatment for her motor vehicle accident. Clostridium difficile is well known to cause an enterocolitis which can be a fatal infection and present as peritonitis. Unfortunately, it is impossible to be absolutely certain of the aetiology of the peritonitis. Investigations such as endoscopy, laparotomy or laparoscopy or CT scans may have yielded clues or even confirmed the diagnosis, but none of these were performed during Janet's terminal admission. Nonetheless, reviewing the information available in the file suggests a clinical course quite consistent with Clostridium difficile related peritonitis, although other aetiologies cannot be excluded."
Dr Power was also asked whether the condition or injury that caused Mrs Wright's peritonitis was "more consistent with her cancer diagnosis or the result of the motor vehicle accident". He answered:
"As stated above, there is some uncertainty as to the aetiology. There was never any evidence to suggest that she had peritoneal or bowel wall malignancy at the time of her death … I think that it is more likely, however, that her peritonitis was as a result of Clostridium difficile, and as stated above, this infection arose as a complication of treatment that was necessary for the injuries sustained in the motor vehicle accident."
In her report, Dr Baber was asked to address the question "whether the peritonitis said to be the cause of Mrs Wright's death was as a direct result of the motor vehicle accident in which she was involved on 21 March 2013". She relied solely on her examination of the hospital records of Mrs Wright's two post-accident admissions. In her report Dr Baber set out extracts from the records, including the extracts I set out in these reasons. Her report then includes the following expressions of opinion:
"The Clostridium difficile infection which was present during the second admission on 06/07/13 was likely to be as a direct result of antibiotic therapy. However, immunosuppressed patients such as cancer patients undergoing therapy are particularly susceptible to Clostridium difficile associated disease and need not be exposed to antibiotics to develop clinical disease
The spectrum of clinical presentation of Clostridium difficile associated disease (CDAD) varies from the asymptomatic carrier state, to self-limited antibiotic-related diarrhea (sic), to fulminant colitis with or without toxic megacolon or perforation.
…
The Clostridium difficile identified, and the clinical presentation of diarrhoea and abdominal pain may well have been due to the antibiotic therapy following the motor vehicle accident in March 2013. However, the link of clinical peritonitis (not proven by surgical investigation) with the initial motor vehicle accident is tenuous. Mrs Wright's primary diagnosis of metastatic colon carcinoma cannot meaningfully be excluded as a cause of her abdominal pain, diarrhoea and peritonitic symptoms. No diagnostic imaging was performed prior to death and an autopsy was not performed after death, which may have been able to confirm or refute any link between the antibiotics and the clinical symptoms."
Dr Power was asked to respond to Dr Baber's report. He said:
"I agree that it is impossible to confirm Janet's exact cause of death. Janet did not have investigations to help clarify the reason for her decline during her terminal admission. I would also like to point out that I was not personally heavily involved in Janet's terminal admission, and am relying on the notes, interpretations and opinions of other people more directly involved in her care at that time to make the diagnosis of peritonitis and other clinical features during that admission. Nonetheless, I do reiterate that Janet had many clinical features consistent with Clostridium difficile, that peritonitis is a known complication of this infection, Janet had confirmed Clostridium difficile toxin in the stool on 6^th July 2013, confirming both active ongoing infection and failure to clear the infection with the previous course of antibiotics. Hence, I think that this remains highly viable amongst the differential diagnosis for her terminal illness. Clinically the evidence for this infection was strong enough to warrant treatment for Clostridium difficile had the patient desired it. Ultimately however, it is impossible to confirm this and progressive colorectal cancer would also be amongst the differential diagnosis as her cause of death."

The Board's submissions to the Tribunal

Before the Tribunal, the Board submitted that use of the word "directly" in the phrase "resulting directly from a motor accident", required proof of an "immediate" causal connection between the motor accident and Mrs Wright's death. The Board relied on Dr Baber's report and submitted:
·     The medical evidence did not support an "immediate or direct causal connection" between Mrs Wright's death and the accident.
·     The link between the clinical peritonitis and the accident is "tenuous".
·     Mrs Wright's pre-existing cancer cannot "meaningfully be excluded" as a cause of the condition for which Mrs Wright was admitted on 6 July 2013.
·     It is possible that the Clostridium difficile infection occurred independently of the treatment for the injuries suffered in the accident.
·     Mrs Wright's decision not to have her condition investigated and treated broke the chain of causation between the motor accident and her death.

The Tribunal findings and decision

The Tribunal upheld the referral and ordered payment of the death benefit. It follows that the Tribunal must have been satisfied that Mrs Wright's death "resulted directly" from the accident. In the course of its reasons the Tribunal:
·     accepted Dr Power's outline of Mrs Wright's medical history, his opinion of her prognosis for death and the reason that continuation of her cancer treatment was ceased after the accident;
·     rejected the submission that the entitlement to the benefit required proof of a close temporal connection "because a direct causal link need not be dependent upon a period of time";
·     referred to the cause of death on the death certificate as peritonitis.
The critical part of the Tribunal's reasons is as follows:
"16Having considered the medical records and the opinions of Drs Baber and Power, I am not persuaded that Mrs Wright had suffered a perforation in her digestive system or colon that led to the peritonitis. The reasonable options open on the evidence are a clostridium difficile related peritonitis or the progression of her colorectal cancer. The treaters do not appear to have considered the likelihood or not of the pre-existing cancer presenting in the terminal stages. The preponderance of opinion from those directly involved was that the presentation was in some way connected to the confirmed clostridium difficile infection and no notation is made of the cancer save for the recorded history indicating that the treaters were aware of her pre-existing condition.
17Given the diagnosis was based upon clinical examination by a number of treaters (although not confined by investigation means available) I conclude that Mrs Wright was suffering the effects of clostridium difficile associated disease either as a colitis or peritonitis or alternatively it progressed from one to the other over time. I am satisfied that the clostridium difficile infection was as a result of antibiotic medication required by Mrs Wright due to her orthopaedic injuries. It follows that the Tribunal is satisfied that the effects of the clostridium difficile associated disease were suffered as a direct result of the motor vehicle accident as this infection or condition was as a result of the treatment (antibiotic therapy) required by Mrs Wright in respect of physical injuries suffered in the motor vehicle accident."

Grounds 1 and 2

The substance of these grounds is the Board's contention that the Tribunal erred by failing to give, after construing the statute, a meaning to the word "directly" in s 23 of the Act and Pt 4, reg 1 of the Regulations.
It was submitted by the Board to the Tribunal, and in this appeal, that use of the word "directly" in the phrase "resulting directly" discloses a legislative intention to confine or restrict the events which may be said to result from a motor accident to those which result directly from a motor accident. I agree. The submission is supported by the legislative history of the Act and regulations which, in my view, indicates an intention by the amendments to tighten the scope of the Board's statutory liability. Before 2002, s 23 of the Act relevantly provided that scheduled benefits were payable to a Tasmanian resident who suffered personal injury "as a result of a motor accident" occurring in Tasmania. In 2002 the provision was amended such that the words "as a result of a motor accident" were replaced by "resulting directly from a motor accident". The terms of the amendment require a meaning to be attributed to the word "directly". Other amendments to the Act, made at the same time, further confirm the legislative intention to confine the terms of the Boards' liability under the Act and regulations by use of the word "directly". One example is s 14, which provides for the obligation of the Board to indemnify an owner or user of a motor vehicle in respect of liability in respect of personal injury. Prior to its amendment the Board's obligation was to indemnify for personal injury "caused by" a motor accident. The amendment substituted the words "resulting directly from" for "caused by". The Minister's second reading speech made in the House of Assembly on 20 March 2002 refers to the Government Prices Oversight Commissions' report in 2000 as recommending certain measures to limit the liability of the Board. Whilst no specific reference is made in that context to the amendment to s 23, it was made as part of a suite of measures which, I infer, were all directed to the same legislative purpose. Moreover, quite apart from the amending provision and its purpose, construction of the legislation requires attention to be given to inclusion of the word "directly". These observations apply also to the regulation providing for payment of the death benefit. The Motor Accidents (Liabilities and Compensation) Regulations 2000 provided for payment of a death benefit where a person dies "as the result of an accident". In the present regulations, introduced in 2010, the benefit is payable where the death of a person "results directly from a motor accident". The word "directly" was introduced into the 2010 regulations.
Whilst the Board's submission that a meaning is to be attributed to the word "directly" is correct, I do not see that there is any merit in a ground which asserts that the Tribunal failed to give the term a meaning. It was not necessary for the Tribunal to undertake a detailed exercise of statutory construction to enable it to come to a proper conclusion. It was aware of the issue. It had been the subject of submissions by both parties. In the course of its reasons the Tribunal, after referring to the "common sense evaluation of the causal chain" described by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, stated that "consideration is to be given as to whether the word 'directly' limits or adds any additional requirement to that basic test of causation". The Tribunal rejected the submission that the word "directly" required a direct and immediate connection, in terms of a close temporal connection. For reasons which I will expand upon later, the Tribunal was correct to do so. The Tribunal referred to the Macquarie Dictionary definition of the term "immediate" (the term used in the Board's submission) as denoting a circumstance "not separated by any intervening medium" and went on to conclude that the "'directly results' causal chain exists from the motor vehicle accident to Mrs Wright's death", and that the "causal link had not been broken".
What is inferred by the ground is the suggestion that, had the Tribunal properly construed the legislation, it should not have found Mrs Wright's death to be the direct result of the motor vehicle accident. That issue arises in the consideration of grounds 3 and 4 of the appeal. Grounds 1 and 2 are not made out.

Ground 5

I will deal with this ground before the remaining grounds because the Tribunal's finding about the cause of Mrs Wright's death is relevant to whether her death resulted directly from the motor accident. This ground asserts:
"5 That the Tribunal erred in finding that the peritonitis from CDI (clostridium difficile infection) was the probable cause of death, as such a finding was not reasonably open on the facts and expert evidence before the Tribunal."
In the Board's written submissions in support of the ground, it sought to refer to extracts from other records of the Launceston General Hospital from one of Mrs Wright's earlier admissions, not in evidence before the Tribunal. No application was made to adduce further evidence. I will have no regard to any such records. This ground is confined to the facts and evidence before the Tribunal.
This ground is not made out. There was ample evidence before the Tribunal from which it could properly conclude that Mrs Wright's death was caused by peritonitis arising from the clostridium difficile infection. Two propositions emerge from a consideration of the ground. The first is that the cause of Mrs Wright's death was peritonitis. The second is that the peritonitis was caused by the clostridium difficile infection. Before the Tribunal, the first proposition was not seriously challenged. The medical certificate of cause of death certifies the disease or condition directly leading to Mrs Wright's death as peritonitis. Dr Power was asked, "What was the likely cause of her peritonitis?" Dr Baber, in her report, records the question she was asked to address as "whether the peritonitis said to be the cause of Mrs Wright's death was as a direct result of the motor vehicle accident". Both questions contain an assumption that peritonitis was the cause of death. For that reason, the correctness of the certified cause of death was not considered in any detail by either Dr Power or Dr Baber. Although both doctors noted that the peritonitis was not confirmed by surgical or other investigations, their reports both primarily address the link between peritonitis and the motor accident, particularly the issue of whether the peritonitis or peritonitic symptoms were caused by the clostridium difficile infection.
After reviewing the reports from both Dr Power and Dr Baber, as well as the hospital records, the Tribunal excluded bowel perforation as the cause of the peritonitis, and rejected the proposition that it was caused by a progression of her colorectal cancer. Although Dr Baber described the link between peritonitis and the motor accident as "tenuous", the Tribunal was not bound to that view. Dr Baber said that the cancer could not meaningfully be excluded as a cause of Mrs Wright's "abdominal pain, diarrhoea and peritonitic symptoms". The question for the Tribunal was not whether other causes could be excluded. Rather, the Tribunal was to consider whether, in light of all of the evidence, it was satisfied of causation on the balance of probabilities. There was ample evidence to justify its conclusion. Dr Baber stated that the clostridium difficile infection was "likely to be as a direct result of antibiotic therapy". The substance of Dr Power's opinion was the same:
"I think that it is more likely, however, that her peritonitis was as a result of Clostridium difficile, and as stated above, this infection arose as a complication of treatment that was necessary for the injuries sustained in the motor vehicle accident."
And later:
"I do re-iterate that Janet had many clinical features consistent with Clostridium difficile colitis, that peritonitis is a known complication of this infection … Hence I think that this remains highly viable amongst the differential diagnoses for her terminal illness".
This ground is not made out.

Grounds 3 and 4

Having concluded that Mrs Wright died from peritonitis arising from a clostridium difficile infection, the task of the Tribunal was to then determine whether Mrs Wright's death was the direct result of the motor accident. The Tribunal's conclusion that it was so satisfied is the subject of challenge by grounds 3 and 4. I will deal with these grounds together. They distil to the same issue. For convenience I will set them out again:
"3The Tribunal erred in failing to determine whether the death of Janet Mary Wright was the direct result of the motor accident on 21 March 2013, but instead determined whether it was the result of the said motor accident;
4It was not properly open to conclude that the Respondent was liable to pay death benefits in respect of the death of Janet Mary Wright because her death:
i Did not result directly from a motor accident for the purposes of section 23 (2B) of the Motor Accidents (Liabilities and Compensation) Act 1973;
ii Did not result directly from a motor accident for the purposes of Part 4, Regulation 1 of the Motor Accidents (Liabilities and Compensation) Regulations 2010."
Both grounds raise the issue of whether the Tribunal was wrong to conclude that Mrs Wright's death was the direct result of the motor accident, because even if a conclusion was open that her death was the result of the accident in a normal causative sense, it was not the direct result of the accident. It is necessary to consider the meaning and operation of the phrase "results directly" in order to determine whether the Tribunal fell into error. Ground 4 refers to s 23(2B). However, that provision does not apply because the motor accident occurred in this State: s 23(1)(a).
The guiding considerations in interpreting the legislation are the text used, and its context, including the general purpose and policy of the legislation, and the mischief it is seeking to remedy: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [69]-[71] and [78]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, per Hayne, Heydon, Crennan and Kiefel JJ at [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. A construction that would promote the purpose or object of the Act is to be preferred to one that does not, Acts Interpretation Act 1931, s 8A. The Act is described in the title as an Act to, amongst other things, "make provision for the discharge of liabilities in respect of deaths and bodily injuries arising from motor accidents and for the payment of compensation in respect of those deaths and bodily injuries …".
As I explained earlier in these reasons, it is necessary to give meaning to the word "directly", when used in the phrase "resulted directly": Insurance Commission of Western Australia v Container Handlers Pty Ltd (2004) 218 CLR 89. In Container Handlers the High Court considered the phrase "directly caused by a vehicle" in a statutory policy of insurance in Western Australia. McHugh J, at [21], concluded that the expression "looks to the vehicle as the harm-causing instrument and requires a direct and immediate connection between the vehicle as the harm-causing instrument and the death or bodily injury". The Board placed some reliance on this passage. However, I do not think that the words used by his Honour in his detailed analysis of the policy provisions in that case should be taken as imposing a requirement of "immediacy" in a temporal sense when construing the Tasmanian legislation. I can think of many examples where death or injury may be a direct result of an accident but not occur immediately.

The term "direct result" appears in the SentencingAct 1991 (Vic) and has been judicially considered in that context. The Act provides for orders of compensation to persons who suffer injury "as a direct result" of an offence. In Kaplan v Lee-Archer (2007) 15 VR 405, Buchanan JA (with whom Vincent and Nettle JJA agreed) observed, at [24], that the requirement that the result be "direct" does not mean that there can be no step between the cause and the consequence. His Honour cited Boiler Inspection and InsuranceCo of Canada v Sherwin-Williams Co of Canada Ltd[1951] AC 319 and Mardorf v Accident Insurance Company [1903] 1 KB 584 at 588 per Wright J). Nor did his Honour consider that the requirement that a result be "direct" means that "the consequence must be solely due to the cause": Weld-Blundell v Stephens [1920] AC 956 at 983. His Honour continued at [25]:
"... in my view the introduction of the adjective 'direct' is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime."
Buchanan J added, at [28] that "the adjective ['direct'] was inserted to emphasise that the crime is to play a significant role in bringing about the compensable injury".
The approach of the court in Kaplanv Lee-Archer has been applied in two recent Victorian cases. In Berichon v The Queen [2013] VSCA 319, the Court of Appeal considered that the connection between the offence and consequences need not be "proximate or immediate" and that there "may be intervening steps". In Best v The Queen [2015] VSCA 15, the Court of Appeal considered the terms of s 5(2)(db) of the SentencingAct (Vic), which required a sentencing court to have regard to "any injury, loss or damage resulting directly from the offence" (emphasis added). The Court said that the word "direct" or "directly" cannot be construed to mean coming in time immediately after the wrongful act, and, although the word qualifies the word "result", it does not imply that there can be no step between the cause and the consequence. At [78]-[79], the court said:
"The terms 'resulting directly' or 'direct result' postulate something more than a mere causal relationship between the offence on which the offender has been charged and convicted and the injury. What is required is more than a sine qua non. The full range of possible causes of injury to the victim are cut down to those which can be characterised as being a direct result of the offence and not something wider. The words 'result' or 'resulting' emphasises effect — the sequential as distinct from the causal nature of the required link.
Prosser offers a second meaning of 'direct' to that discussed in [74] above as that which follows 'in sequence from the effect of the defendant's act upon conditions existing and forces already in operation at the time, without the intervention of any external forces which come into active operation later'. The injuries will not be a direct result of the defendant's acts if where another person's acts intervene, those latter acts may be regarded as the immediate cause of the injuries." (References omitted.)
A similar approach was adopted by the Queensland Court of Appeal in R v Foster [2009] 1 Qd R 53; (2009) 183 A Crim R 437. McMurdo P wrote the principal judgment. Her Honour concluded that an injury was a direct result of an offence enabling a reparation order where, as a matter of fact, there is "a close or significant connection between the loss suffered and the offence which caused it".
See also the comments in Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited (2005) 13 ANZ Insurance Cases 61-643 per McColl J at [80]-[83].
I have concluded that an equivalent approach should be applied in this case. I think that the provision is to be interpreted to require that there should be a close or significant connection between the motor accident and the death; that is that the accident played a close or significant role in bringing about the death. The Board submitted that something more than the "but for" test of causation is required. I agree. However, that death does not come in time immediately after the accident, that there may have been some other step between the accident and the death, or that there may be concurrent causes, does not mean that the death cannot be the direct result. No more general test can or should be formulated. Once the principles I have enunciated are applied, the question will be one depending on the facts, and the answer will be one on which reasonable minds may differ.
Death, for everyone, is inevitable. For Mrs Wright, her death, without the motor accident, would have been hastened by her cancer. However, the Tribunal was entitled to conclude that it was not the cancer which caused Mrs Wright's death and, rather, that her death resulted directly from the accident. Not only was that view open to the Tribunal, I would have reached the same conclusion. I think the evidence that it was the accident which directly precipitated her death is overwhelming.
The Board submitted that the Tribunal did nothing more than apply the "but for" test to its process of reasoning on the issue of causation. I accept that the "but for" process of reasoning played a part in the Tribunal's determination, but that is not all the Tribunal did. The Tribunal was aware that something more was required. It excluded other factors, Mrs Wright's cancer in particular, as the cause of the peritonitis which caused Mrs Wright's death. The Tribunal correctly put aside the lapse of time between the accident and the death as excluding a direct relationship. The Tribunal then carefully followed the process which, according to the facts it found, resulted in her death. The orthopaedic injuries suffered by Mrs Wright in the accident required the surgical placement of a fixation device. She developed an infection at the site of the fixation device which required antibiotic treatment. The Tribunal properly found that the clostridium difficile infection was as a result of the antibiotic medication. The Tribunal found that the clostridium difficile infection caused the peritonitis which was the immediate cause of her death. A common sense evaluation of those factors leads to the conclusion that the accident had a close and significant causative connection to Mrs Wright's death. On the facts found by the Tribunal it was not a tenuous or remote connection. It was a prominent factor and was not overshadowed by the other factors.
The Board made submissions about the other factors it said were at work. It referred to Mrs Wright's cancer and the "possibility" that it may have spread to the bowel causing peritonitis. The Board also advanced the proposition that the cancer "could not be excluded as a cause" of the peritonitic symptoms. The Board submitted that Mrs Wright declined investigation which may have demonstrated that she was suffering from "simple colitis" which may have responded to antibiotics. These submissions confuse the issue of whether a consequence is a "direct result" with the Tribunal's findings about primary facts. The Tribunal found that Mrs Wright suffered from peritonitis. The Tribunal found that the cancer was not the cause of the peritonitis. Both findings were open to it. On those findings the factors relied on by the Board are not relevant to the analysis of causation. The Board also submitted that Mrs Wright was more susceptible to clostridium difficile, regardless of the antibiotics. To the extent that this submission suggests that Mrs Wright contracted clostridium difficile for reasons other than the antibiotic treatment, and thus independently of the accident, it suffers from the same flaw as the submission just referred to.
An alternative way of considering part of the Board's submission about the clostridium difficile infection is to take the submission as suggesting that the infection resulted from the antibiotic medication for her orthopaedic injuries, but that Mrs Wright was more susceptible to clostridium difficile infection because of her cancer. Along similar, though not identical, lines the Board refers to Mrs Wright's decision, on her last admission to hospital, to decline further treatment. It describes this as her "choice to die as that was inevitable due to her pre-existing advanced colon cancer". The Board submits that these factors should have led the Tribunal to the view that the required direct causal relationship between the accident and the death did not exist. I do not agree. On the facts of a particular case, there may be other forces or events which, in combination or isolation, influence a consequence or result. As I earlier explained, there may be other concurrent causative factors and events. It will be a matter of fact for the decision making Tribunal to consider the combination of various influences and determine which influence or influences directly produce a result, or whether they lack the causative connection which can be so characterised. As Nettle J pointed out in Kaplan, this will involve, at least in part, application of common sense.
The Tribunal took the view that the decision to not receive treatment did not break the direct causative link between the injuries Mrs Wright suffered in the accident and her death. Again, I think that the Tribunal's decision was not only open to it, but was correct. Mrs Wright's decision was made only a few days before she died. By that time she was gravely ill. No doubt the suffering that she had undergone over many years because of the cancer was a factor in her decision, but it was the accident which directly precipitated the events which led to it. I see no error in the Tribunal's determination. These grounds of appeal are not made out.

Ground 6

The Board applied for leave to add this ground. It asserts that the Tribunal erred by making its own inquiry about peritonitis without giving the parties an opportunity to be heard, or adduce expert evidence, on the question. After referring to the cause of death on the death certificate as "peritonitis" the Tribunal said:
"… there is no evidence explaining this condition; however I am aware that this term describes an inflammation of the membrane which lines the inside of the abdomen and all the internal organs ('the peritoneum') … No evidence was adduced generally about the condition peritonitis: however my own research discloses that it may be 'primary'; that is occurring spontaneously or 'secondary; that is resulting from some other condition."
Courts must try a case on the evidence and arguments presented in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament provides otherwise: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 350. By the terms of the COI Act, the Tribunal was not bound by any rule of law which relates to evidence in judicial proceedings. It is not a court. However the proceedings before it are essentially inter partes. In those circumstances it is, at least, desirable that the Tribunal determine references on the basis of the evidence and submissions put to it by the parties. Otherwise there is an obvious risk of unfairness or error. For that reason, I consider that it is prudent for the Tribunal to refrain from independent inquiry, or, if by its own inquiry it finds material it intends to consider as part of its process of determination, give notice to the parties of the result of its inquiry and invite evidence or submissions.
There is no need for me to decide further whether the Tribunal fell into error because no substantial wrong or miscarriage has been occasioned. The appeal should not succeed on this ground: rr 709 and 693(6). Although the Tribunal's research resulted in comment about primary and secondary causes of peritonitis, the result of its research played no material part in the process of reasoning. The Tribunal made a clear finding that the peritonitis was caused by the clostridium difficile infection. It does not matter whether the cause of the condition is categorised as "primary" or "secondary". The categorisation made no difference to the Tribunal's determination that the peritonitis caused Mrs Wright's death, and that her death resulted directly from the accident.
If the amendment to add this ground were allowed, the ground would fail. For that reason the application to amend is refused.

Conclusion and orders

None of the grounds of appeal have been made out. The determination of the Tribunal is confirmed and the appeal is dismissed.