Allianz Australia Insurance Limited trading as Allianz v Susak

1. [1]

   PAYNE JA: I agree with Adamson JA.

2. [2]

   ADAMSON JA: The appellant, Allianz Australia Insurance Limited trading as Allianz (Allianz), challenges the dismissal by Griffiths AJA (the primary judge) in the Common Law Division of the Supreme Court (the Court below) of its claim for relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of the decision of the second respondent (the Review Panel), a review panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (the Act). The decision of the Review Panel was, relevantly, that Zoran Susak (the claimant) suffered non-threshold injuries to his lumbar spine as a result of a motor accident on 12 June 2020 (the accident), for which Allianz, as the relevant compulsory third party insurer, is liable.

3. [3]

   Unless otherwise indicated, all references to legislation in these reasons are references to the Act.

4. [4]

   In order to obtain relief under s 69 of the Supreme Court Act, Allianz needed to establish either jurisdictional error or error of law on the face of the record. The record for these purposes includes the reasons of the Review Panel: s 69(4). Relief cannot be granted merely for errors of fact.

5. [5]

   The two active parties in these proceedings are the claimant and Allianz. The Review Panel and the third respondent, the President of the Personal Injury Commission of New South Wales (the President of PIC, or the President), have filed submitting appearances.

The statutory framework

1. [6]

   Part 7 of the Act, entitled “Dispute Resolution”, deals with the resolution of claims made by those injured in motor accidents. A dispute whether a claimant’s injuries are “threshold injuries” or “non-threshold injuries” is a “medical assessment matter” for the purposes of Part 7. The importance of the distinction is that a claimant who has suffered only threshold injuries is not entitled to weekly payments or treatment expenses after 52 weeks (ss 3.11 and 3.28) and is not entitled to damages at all (s 4.4).

2. [7]

   Section 1.6 relevantly provides:

3. [8]

   The term “threshold injury” replaced the previous term, “minor injury”, following an amendment to the Act passed in 2022 which took effect on 1 April 2023. As many of the documents relevant to this matter were created prior to 1 April 2023, the expression “minor injury” appears in them. As the definition was not otherwise changed, I will use the term “threshold injury” in these reasons.

4. [9]

   Regulation 4(1) of the Motor Accident Injuries Regulation 2017 (NSW) (reg 4(1)) provides:

5. [10]

   Clause 2(e) of Sch 2 provides that “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act” is a “medical assessment matter” for the purposes of Part 7. The dispute between the parties about whether the claimant had suffered any injury to his lumbar spine as a result of the accident and, if so, whether it was a threshold or non-threshold injury was a “medical dispute” within the definition in s 7.17. As such, either party to the dispute could refer it to the President of PIC for assessment under Division 7.5 of Part 7. Pursuant to s 7.20(2), the President is to arrange for the dispute to be dealt with by a medical assessor (in this case, Dr Herald, see below). The medical assessor is to give a certificate as to the matters referred for assessment: s 7.23(1). The certificate sets out the reasons for any finding as to any matter certified in the certificate: s 7.23(7).

6. [11]

   A party may apply for a review of a medical assessor’s assessment but only on the grounds that the assessment was incorrect in a material respect: s 7.26(2). If the President or delegate is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect, the President is to arrange for the medical assessment to be reviewed by a review panel: s 7.26(5). Such a panel is to be constituted by two medical assessors and a member of PIC who is a member assigned to the Motor Accidents Division: s 7.26(5A).

7. [12]

   Section 7.26(6) provides:

8. [13]

   The review panel may confirm or revoke the medical assessor’s certificate and, in the latter case, issue a new certificate: s 7.26(7). Section 7.26(9) provides that s 7.23 applies to any new certificate given under s 7.26, with the consequence that a review panel must give reasons, as required by s 7.23(7).

9. [14]

   The parties agreed that the Motor Accident Guidelines, version 9.2, which commenced on 10 November 2023, were the applicable version. Part 5 of the Guidelines, entitled “Threshold injury (Soft tissue … injuries)”, was made under s 1.6(5).

10. [15]

    Clause 5.3 provides as follows:

11. [16]

    Clauses 5.7 to 5.9 of the Guidelines deal with assessment whether radiculopathy is present, it being the determining factor which converts an injury from being a soft tissue (and therefore threshold) injury into a non-threshold injury by reason of reg 4(1). They provide:

12. [17]

    Part 6 includes a section entitled, “Causation of injury” (which was accepted to apply in the present case to assessment of causation of injuries) and includes the following:

Background facts

1. [18]

   The background to the Review Panel’s decision is as follows.

2. [19]

   On 12 June 2020 the claimant was involved in the accident when the vehicle in which he was a passenger was struck from behind by another vehicle. The claimant first sought medical treatment following the accident on 16 June 2020.

3. [20]

   On 8 July 2020, the claimant made an application for personal injury benefits to Allianz, alleging that he had suffered injuries to his cervical, lumbar and thoracic spine and that he had injured both of his shoulders. Only the alleged injuries to the lumbar spine are relevant for present purposes. He answered the question in the claim form, “[w]ere you suffering an … injury affecting the same or similar parts of your body at the time of the accident?” in the negative. The claimant consented to his general practitioner and other medical practitioners sharing information with various bodies, including, in this case, Allianz, for the purposes of his claim. The accident was reported to police on 10 July 2020.

4. [21]

   Allianz provided a response dated 23 December 2020. As the substance of its response is the subject of ground 4, its terms are significant. In its response, Allianz submitted that the injuries to the claimant’s lumbar spine were not caused by the accident, having regard to the pre-existing degeneration as depicted on radiological scans and the delay in reporting the injuries or seeking medical treatment, which Allianz alleged was a period of three weeks.

5. [22]

   At the time it made this submission, Allianz was under the mistaken apprehension that the claimant had not sought medical treatment for injuries sustained in the accident until 6 July 2020. Further clinical notes were produced which showed that the claimant had first sought medical treatment for injuries sustained in the accident on 16 June 2020, four days after the accident.

6. [23]

   Also in its response dated 23 December 2020, Allianz submitted further that full clinical notes, pre-and post-accident, ought be obtained before an assessment of causation could be made. It continued:

7. [24]

   Following Allianz’s response, further medical records were provided, including those created after its response. For example, on 1 February 2021, Dr Matthew Giblin, the claimant’s treating orthopaedic surgeon, detected right-sided radiculopathy as a result of the large right-sided L5/S1 disc protrusion with impingement which was evident on a MRI scan. In his report of the same date to the claimant’s general practitioner, Dr Giblin recommended a microdiscectomy (to remove the protrusion surgically so as to prevent further impingement on the nerve). It was, however, not necessary for the claimant to rely on this finding because radiculopathy was found on examination by Dr Herald in the course of a medical assessment under the Act, as referred to below.

8. [25]

   The claimant was referred for medical assessment to a Medical Assessor, Dr Herald, who examined him on 9 February 2022. Dr Herald noted that the claimant told him that he had not had any problems with his back in the past. Of the injury to the claimant’s lumbar spine, Dr Herald said:

9. [26]

   Dr Herald noted that reg 4(1) provided that an injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) was a soft tissue injury for the purposes of s 1.6(2) of the Act. He concluded:

10. [27]

    On this basis, Dr Herald certified, in his certificate dated 2 March 2022, that the injury to the claimant’s lumbar spine L5/S1 disc prolapse and right S1 radiculopathy was “not a minor [threshold] injury”. Dr Herald also certified that the claimant had suffered soft tissue injuries to his cervical and thoracic spine, which were threshold injuries.

11. [28]

    Allianz sought a review of the Medical Assessor’s certificate, in part on the basis that it had substantial documentary evidence that, at the time of the accident, the claimant had a pre-existing back condition which had caused him to seek medical treatment. It also alleged that Dr Herald’s reasons were insufficient, including because he had failed to address Allianz’s submissions (in its response of 23 December 2020). It sought a referral to a review panel on the basis that Dr Herald’s certificate was “incorrect in a material respect.”

12. [29]

    On 28 April 2022, a delegate of the President, determined that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and that the review application was accepted and would be referred to a review panel.

13. [30]

    On 7 June 2022, the Review Panel made directions which required the claimant and Allianz to provide any material on which either proposed to rely on in the review by the Review Panel. On 12 June 2022, Allianz provided documentary material to the Review Panel, which included the clinical notes of medical practitioners whom the claimant had consulted for back pain prior to the accident.

14. [31]

    On 1 July 2022, the Review Panel directed the claimant to attend for an examination on 12 September 2022, which was to be conducted by Medical Assessor Professor Ian Cameron, who was a member of the Review Panel. The Review Panel also directed the claimant to serve on Allianz and upload to the portal (accessed by the Review Panel) clinical records of all general practitioner and other treatment providers who had treated him from 1 July 2017 to date and all reports of imaging from radiological investigations undergone by the claimant in that period.

15. [32]

    Allianz provided documentary evidence of the claimant’s pre-existing back condition to the Review Panel and continued to rely on its response dated 23 December 2020, in which it submitted that the claimant’s back condition could not be attributed to the accident, having regard to the history. Reports of the claimant’s treating doctors, such as Dr Giblin’s report of 1 February 2021 referred to above, were also provided.

16. [33]

    In its certificate of determination dated 7 February 2024, the Review Panel revoked the certificate of Dr Herald (as it disagreed with Dr Herald’s finding that the claimant had injured his thoracic spine in the accident). However, following its own assessment the Review Panel agreed with the assessment of Dr Herald with respect to the claimant’s lumbar spine and said:

17. [34]

    In the reasons which were attached to the certificate, the Review Panel set out the relevant history, summarised Dr Herald’s assessment and the parties’ submissions. It also summarised the “re-examination” conducted by Professor Cameron on 12 September 2022, relevantly as follows:

18. [35]

    The Review Panel expressly noted the inconsistency between the claimant’s version of his prior history and said:

19. [36]

    The Review Panel summarised Professor Cameron’s findings on examination of the claimant’s lumbar spine:

20. [37]

    Under the heading, “FINDINGS”, the Review Panel expressly accepted, at paragraph 100 of its reasons, that it adopted the reasoning in David v Allianz Australia Ltd [2021] NSWPICMP 227 (David) at [84]-[104] “that radiculopathy can be present at any time to establish a threshold injury for the purposes of the [Act].” Ms Allars SC, who appeared with Ms Gumbert for Allianz, confirmed that Allianz did not seek to challenge the principle in David.

21. [38]

    The Review Panel addressed the questions of diagnosis and causation as follows:

Consideration

1. [39]

   In effect, Allianz sought to re-agitate the same arguments in this Court as had been put and rejected by the primary judge. As this Court is a court of error, Allianz must persuade this Court that the primary judge was in error in dismissing the summons. For this reason, the grounds will be addressed by reference to his Honour’s reasons.

2. [40]

   Allianz challenged the Review Panel’s decision before the primary judge on four grounds:

   1. (1)

      alleged error in determining factual causation:

   2. (2)

      alleged error with respect to its reasons by failing to expose its actual path of reasoning as to:

   3. (3)

      alleged error in finding that a soft tissue injury constituted a non-threshold injury; and

   4. (4)

      alleged failure to address Allianz’s substantial and clearly articulated argument that any lumbar spine injury was the consequence of a pre-accident complaint which was reflected in pathology indicating long-term degenerative change.

3. [41]

   The grounds in the amended notice of appeal reflected these challenges as follows:

4. [42]

   There is considerable overlap between these grounds in that the complaint that the Review Panel made an error in its findings is reflected by the corresponding allegation that it failed to give reasons for its findings. In these circumstances, it is convenient to address the grounds by reference to the topics of causation (ground 1), alleged inadequacy of reasons (ground 2), alleged error arising from a finding that the injury was a soft tissue injury and a non-threshold injury (ground 3); and alleged failure to address an argument propounded by Allianz – that causation had not been established having regard to the pre-existing back condition (ground 4).

5. [43]

   Allianz’s challenge to the Review Panel’s decision on ground 1 was that the finding that the lumbar spine injury involved radiculopathy did not include an anterior finding that the radiculopathy was caused by the accident.

6. [44]

   On the question of causation, the primary judge found that:

   1. (1)

      the Review Panel’s reasons were sufficient to indicate that it appreciated that causation was an issue, particularly in light of the pre-existing back complaints which were the subject of the material relied on by Allianz and its submissions ([75]);

   2. (2)

      it was implicit in the Review Panel’s reasons that the pre-existing back complaints had resolved during the nine month gap between his general practitioner noting that his back pain was “improving slowly” and the next consultation which occurred after the accident ([75](4)); and

   3. (3)

      the Review Panel accepted Dr Herald’s and Dr Cameron’s findings on examination and the link made by Dr Herald that the accident caused the radiculopathy suffered by the claimant, in part because the finding of radiculopathy was relatively proximate to the accident ([75](6) and (8));

7. [45]

   Further, the primary judge considered causation, as long as there was some evidence to establish it, to be a question of fact “and quintessentially so”, referring to Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [44] (Leeming JA, Basten JA and Simpson AJA agreeing).

8. [46]

   In my view, there is no reason to doubt the correctness of the primary judge’s conclusion that the Review Panel had determined as a matter of fact and opinion that there was a causal link between the accident and the radiculopathy detected on Dr Herald’s examination and that, as such, there was no basis on which the decision could be set aside under s 69 of the Supreme Court Act.

9. [47]

   The Review Panel’s path of reasoning on the question whether the accident caused the radiculopathy was as follows:

   1. (1)

      the claimant suffered a pre-existing back condition prior to the accident for which he sought medical treatment;

   2. (2)

      the symptoms from the claimant’s pre-existing back condition had largely resolved prior to the accident, as can be inferred from the circumstance that the last consultation relating to the pre-existing back condition was on 20 September 2019 at which he reported that the back pain was improving slowly;

   3. (3)

      the claimant complained of back pain after the accident, which he attributed to the impact sustained in the accident, when he first consulted a medical practitioner after the accident on 16 June 2020 and complained of “slight discomfort to left lower back”;

   4. (4)

      the lower back symptoms complained of and experienced by the claimant after the accident were caused by the accident (paragraph 103 of the reasons);

   5. (5)

      in his examination of the claimant on 9 February 2022, Dr Herald noted two features of S1 radiculopathy: decreased or absent ankle jerks and altered sensation over the sole of his foot to light touch and deep pressure (which corresponded with paragraphs (a) and (e) in cl 5.8 of the Guidelines) (paragraph 108 of its reasons);

   6. (6)

      the radiculopathy was caused by compression of the S1 nerve by reason of the disc bulge at L5/S1 which was caused (or contributed to) by the accident (necessarily implied by (4) and (5) above); and

   7. (7)

      because the radiculopathy detected by Dr Herald post-accident qualified for the definition in cl 5.8 of the Guidelines, the back injury which the claimant sustained in the accident was a non-threshold injury (paragraph 108 of its reasons).

10. [48]

    The structure of the Review Panel’s reasons also illuminates the path of reasoning. Under the heading “Diagnosis and causation” (which was related to paragraphs 103-106), the Review Panel addressed whether the claimed injuries were caused by the accident. It concluded that the cervical and lumbar injuries were caused by the accident, while the remaining injuries were not.

11. [49]

    Under the heading “Threshold injury” (which related to paragraphs 107-109), the Review Panel went on to address the question whether the soft tissue injuries to the claimant’s cervical and lumbar spine (which it had already found were caused by the accident) were taken out of that category by reference to the Guidelines and reg 4(1) and therefore classified as non-threshold injuries. They concluded that, because radiculopathy associated with S1 had been found by Dr Herald, the injury to the lumbar spine was a non-threshold injury, but because the test for radiculopathy in the Guidelines was not satisfied for the cervical spine injury, the injury to the cervical spine remained a soft tissue, and therefore a threshold, injury.

12. [50]

    For these reasons I am not persuaded that ground 1 has been made out.

13. [51]

    The summary of the primary judge’s reasons given above applies to the causal connection between the radiculopathy and the accident.

14. [52]

    At [83], the primary judge referred to the seminal passage from Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ) concerning the standard by which reasons by a medical panel (in that case constituted under the Accident Compensation Act 1983 (Vic)) should be assessed, as follows:

15. [53]

    The primary judge found that the Review Panel’s reasons were sufficient to meet the standard laid down in Wingfoot. His Honour found that the Review Panel’s reasons setting out its path of reasoning were “succinct, but adequately revealed”.

16. [54]

    Ms Allars submitted that there was a “gap” in the Review Panel’s reasons because, although it found that the claimant injured his lower back in the accident, it did not expressly find that the radiculopathy in S1 was caused by the accident. She submitted that the Review Panel had failed to meet the standard required in Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (Yusuf) at [68]-[69] and that the Review Panel had not expressed its causation finding as applying to the radiculopathy detected by Dr Herald, which it addressed in the context of the categorisation of the lumbar spine injury as threshold or non-threshold. She submitted that the failure to link radiculopathy in terms to the accident deprived Allianz of identifying “with certainty what reasons [the Review Panel] had for reaching its conclusion”: Yusuf at [69].

17. [55]

    Ms Allars referred the Court to several decisions where Yusuf had been applied in different contexts. It is not necessary to address these decisions as each turned on its own facts.

18. [56]

    The relevant principles were summarised by Bell P in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77]:

19. [57]

    Leeming JA in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [6] (referred to by the primary judge at [86]) also said, of present relevance:

20. [58]

    I discern no error in the primary judge’s conclusion. I consider that the path of reasoning which I have set out above is sufficiently revealed by the Review Panel’s reasons. Indeed, I am not convinced that there was such a “gap” as alleged. The Review Panel dealt with causation before turning to the issue whether the injury to the lumbar spine was a threshold injury. Radiculopathy was relevant to the latter question, causation already having been found. It would have been superfluous for the Review Panel to repeat its finding that the symptoms experienced by the claimant which related to his lumbar spine had been caused by the accident. The ordering of paragraphs is the prerogative of the decision maker. A court reviewing such reasons ought not impose its own view of how it would have composed reasons for the same decision. But in this case, as explained above, I consider that the headings indicated the logical progression of the path of reasoning taken by the Review Panel.

21. [59]

    For these reasons, I am not persuaded that ground 2 has been made out.

22. [60]

    This ground is based on the following in the Review Panel’s certificate:

23. [61]

    Ms Allars submitted that the certification of the “lumbar spine – soft tissue injury” as “not a threshold injury” was inconsistent, “very problematic” and “not workable” since a soft tissue injury was, by definition, not a threshold injury.

24. [62]

    The primary judge said of present relevance:

25. [63]

    The primary judge considered that the Review Panel’s wording was explicable, having regard to the terms of reg 4(1), which include “[a]n injury to a spinal nerve root that manifests in neurological signs (other than radiculopathy) … as a soft tissue injury.” His Honour found that the effect of the Review Panel’s finding that the accident had caused radiculopathy was to take the present case out of the category of “soft tissue injury” and into the category of non-threshold injuries.

26. [64]

    I am not persuaded of any error in the primary judge’s construction of the certificate in light of the Review Panel’s reasons. It is plain from the Review Panel’s reasons that it appreciated that, if it found radiculopathy causally related to the accident, the injury to the claimant’s lumbar spine was not a threshold injury. To the extent that its description of this injury as “soft tissue” appeared in its certificate, it must be read in context in light not only of the balance of the certificate which contains the finding that the injury is “not a threshold injury” but also of the Review Panel’s reasons as a whole. His Honour’s recitation of the relevant authorities, including Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] (Bell P, Ward JA agreeing) shows that his Honour correctly approached the assessment of the Review Panel’s reasons.

27. [65]

    Even if the terms of the certificate are construed without regard to the reasons, it is tolerably plain that the Review Panel has certified that the injury to the claimant’s lumbar spine is a non-threshold injury. When the terms of the certificate are read in the context of the definition in reg 4(1), the only reasonably available inference is that the Review Panel is satisfied that the injury to the claimant’s lumbar spine, which would otherwise be a soft tissue injury, qualifies as a non-threshold injury because of radiculopathy, that being the only finding which, because of the exception in the definition, has that effect.

28. [66]

    I reject Ms Allars’ submission that the wording of the certificate is materially problematic or unworkable. The finding that the injury to the claimant’s lumbar spine is a non-threshold injury is unambiguous and the reference to “soft tissue” is, as the primary judge found, explicable in light of the wording of reg 4(1).

29. [67]

    For these reasons, I am not persuaded that ground 3 has been made out.

30. [68]

    In support of ground 4, Allianz relies on Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 (Dranichnikov) in which Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker ‘[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts’ was both a constructive failure to exercise jurisdiction and a failure to accord natural justice: at [23]-[25].

31. [69]

    At [95], the primary judge listed the submissions which Allianz alleged had not been addressed by the Review Panel, as follows:

32. [70]

    The primary judge said that, for the reasons his Honour had already given, these submissions had, in substance, been addressed by the Review Panel.

33. [71]

    In Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, Basten JA (Payne JA and Simpson AJA agreeing) referred to Dranichnikov and said at [26]:

34. [72]

    Ms Allars identified the relevant submission made by Allianz which she alleged had not been addressed by the Review Panel as its submission dated 23 December 2020 made in response to the claimant’s claim (summarised above).

35. [73]

    The first difficulty for Allianz in establishing that the Review Panel failed to deal with “a substantial, clearly articulated argument relying on established facts” was that there were two significant differences between the facts on which Allianz relied in its response and the facts as found by the Review Panel.

36. [74]

    First, Allianz’s contention in its response (based on the limited records to which it had access at the time of its response) was that the claimant had not sought medical advice or treatment until 6 July 2020 (over three weeks after the accident) whereas clinical notes produced subsequently established that he had in fact sought medical advice on 16 June 2020 (four days after the accident). Secondly, on 23 December 2020, radiculopathy associated with S1 had not yet been detected in the claimant, but was detected later, including by Dr Herald on 9 February 2022.

37. [75]

    Because the underlying facts had changed, the Review Panel did not need to deal with the claimant’s alleged delay in seeking medical treatment because the length of the delay was not as Allianz had believed it to be at the time of its response. Second, on the basis of David, the presence of radiculopathy at any time would result in an injury to the lower back qualifying as a non-threshold injury. Dr Herald’s finding of radiculopathy post-dated Allianz’s response.

38. [76]

    Once these two integers were removed from Allianz’s response, all that was left was the proposition that the radiculopathy could have been caused by the claimant’s degenerative back condition and that there was a question whether it was caused by the accident. However, this was dealt with by the Review Panel when it recorded that the claimant had not sought medical treatment between September 2019 and June 2020 and that he had sought such treatment in June 2020 because he was experiencing symptoms relating to his neck and back arising from the accident.

39. [77]

    To the extent to which a challenge to the claimant’s credit can be discerned in Allianz’s response, Ms Allars eschewed it and confirmed, in oral submissions in this Court, that “no argument has been put about lack of credit of the claimant”.

40. [78]

    The Act provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: Wingfoot at [47]. Further, the Review Panel did not have to address Allianz’s submission in terms in order to deal with it in a substantive way. Its reasons (and the path of its reasoning as set out above) were sufficient to indicate that it had regard to the claimant’s pre-existing degenerative back condition but considered that the back symptoms which the claimant experienced and reported post-accident, including the radiculopathy which Dr Herald detected on examination, had been caused (or contributed to) by the accident.

41. [79]

    I understood Ms Allars to submit that the Review Panel needed to find that the accident was the sole cause of the claimant’s lumbar spine injury if it were to find that it was a non-threshold injury. If this was the submission, I reject it. The principles of causation in cl 6.6 of the Guidelines indicate that, as at common law, the accident need only contribute to the injury and need not be its sole cause.

42. [80]

    I discern no error in, and agree with, the primary judge’s conclusion that the Review Panel’s reasons indicate that it adequately dealt with Allianz’s submissions. For these reasons, ground 4 has not been made out.

Proposed orders

1. [81]

   For the reasons given above, I propose the following orders:

   1. (1)

      Dismiss the appeal.

   2. (2)

      Order the appellant to pay the first respondent’s costs.

2. [82]

   STERN JA: I agree with Adamson JA.