Kelly v Insurance Australia Limited

By summons filed on 17 August 2018, Lisa Kelly (“the plaintiff”) seeks (inter alia) the following orders:

Although declaratory relief has been sought by the plaintiff in respect of decisions made by both the second and third defendants, it was accepted by the parties that the outcome of the plaintiff’s case in respect of the former would dictate the outcome of her case in respect of the latter. It is also important to emphasise at the outset that these are proceedings for judicial review. This is not an occasion on which to review the merits of any decision.

The relief sought was opposed by the first defendant, who was the only active defendant in the proceedings.

A Court Book (“CB”) containing all evidentiary and associated material [1] was tendered at the commencement of the hearing with the consent of both parties.

The plaintiff was involved in a motor vehicle accident on 21 December 2004 (“the subject accident”) in which she alleges that she sustained injuries to her neck, back, chest, shoulders, left knee and right ankle. Following the subject accident, she made a claim pursuant to the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) against the first defendant who is the Compulsory Third Party insurer of the vehicle said to have been at fault.

Following the making of that claim, the first defendant disputed that the plaintiff’s alleged injuries gave rise to a level of whole person impairment which was greater than 10%. Such a dispute having arisen, the plaintiff underwent a series of medical assessments which have culminated in the institution of the present proceedings.

The first statutory medical assessment of the plaintiff’s injuries was undertaken by Assessor Reid on 24 October 2006. Following that assessment, Assessor Reid issued a certificate dated 13 November 2006 [2] in which he concluded that the plaintiff had suffered injuries to her right shoulder, left knee and right ankle in the subject accident. He concluded [3] that those injuries gave rise to a whole person impairment of 9%, comprising:

Assessor Reid accepted that the plaintiff had also suffered soft tissue injuries to her neck and back in the subject accident, but concluded that those injuries did not give rise to any whole person impairment.

The second statutory medical assessment was undertaken by Assessor Ryan on 13 July 2010. Following that assessment, Assessor Ryan issued a certificate on 4 August 2010 [4] in which he concluded [5] that the plaintiff’s whole person impairment arising from the subject accident was 10%, comprising:

Assessor Ryan also found that the plaintiff suffered a soft tissue injury to her back in the subject accident. However, consistent with the conclusion reached by Assessor Reid, Assessor Ryan concluded that this injury did not give rise to any whole person impairment.

On 15 April 2011 the plaintiff was sitting astride a motorbike parked in the driveway of a house. Her left leg was stabilising the motorbike. She asserts that she experienced pain, whereupon her left knee gave way causing her to fall to the ground. The motorbike then fell on top of her left leg, causing a fracture. [6]

On 5 March 2012 the plaintiff was involved in a second motor vehicle accident whilst on her way home from work. Subsequent to that accident she was absent from work for a period of approximately 2 years due to psychological injury. [7]

In May 2016 the plaintiff underwent (inter alia) a laminectomy. [8]

The third statutory medical assessment, which is the focus of the present proceedings, was undertaken by the second defendant on 7 February 2018. Following that assessment, the second defendant issued a certificate on 22 February 2018 [9] in which she concluded [10] that the plaintiff’s whole person impairment arising from injuries sustained in the subject accident was 6%, comprising:

Although the precise bases upon which the plaintiff challenges the decision of the second defendant became somewhat blurred in the course of submissions, it emerged that the plaintiff asserts that there were four errors on the part of the second defendant. I will deal with those asserted errors individually.

The second defendant listed the injuries to be assessed in the following terms: [11]

The second defendant also specifically referred to the first [13] and second [14] medical assessments, as well to various examinations of the plaintiff by other medical practitioners. [15]

Under the heading “conclusions”, [16] the second defendant said the following in respect of the plaintiff’s asserted back injury:

The second defendant proceeded to set out the injuries which, in her opinion, were not caused by the subject accident in the following terms: [17]

The second defendant then set out a table of the injuries which, in her opinion, were caused by the subject accident, along with the whole person impairment which she found had resulted from each of them: [18]

Counsel for the plaintiff submitted that it was incumbent upon the second defendant to list the injuries which had been referred to her for assessment, to determine which of those injuries had been caused by the subject accident, and to then evaluate the degree of permanent impairment caused by those injuries. Counsel submitted that the second defendant had failed to include the plaintiff’s lower back injury in the list of injuries, and that such failure amounted to a breach of various provisions of the Guidelines for assessment of permanent impairment (“the Guidelines”), particularly clauses 1.19, 1.23 and 1.36.

Counsel submitted that although the second defendant had acknowledged that the plaintiff sustained a lower back injury in the subject accident, she should have:

It was submitted that having failed to take such steps, the second defendant had fallen into error.

Senior counsel for the first defendant submitted that the second defendant had specifically included, in the list of injuries to be assessed, an injury to the back. He also pointed to the fact that the second defendant had made reference in her reasons to a back injury causing “severe discogenic pain” and “resulting in L4-S1 spinal fusion” amongst injuries which, in her opinion, were not caused by the accident. It was submitted that in these circumstances, no error had been established, and that the complaint made by the plaintiff that her back injury was not included in the list of injuries to be assessed was both incorrect and unnecessarily pedantic.

It was submitted that the second defendant had made it abundantly clear that she accepted that a low back injury of a soft tissue nature had been caused by the accident, but that what the Act and Guidelines mandated was a process of assessment, as opposed to the content of a list of injuries.

To the extent that the second defendant did not list any back injury in the table of injuries which, in her opinion, were caused by the accident, [19] senior counsel submitted that this was explained simply by the fact that the second defendant had concluded that any low back injury sustained in the subject accident had not given rise to any degree of whole person impairment.

Senior counsel further submitted that none of the specific provisions of the Guidelines upon which the plaintiff relied had been breached. He submitted, in particular, that in circumstances where the second defendant had found that there was no whole person impairment of the lower back arising from the subject accident, and where she had found that the plaintiff’s need for surgery had come about as a consequence of matters unrelated to the subject accident, clause 1.36 of the Guidelines was irrelevant.

It is appropriate to commence by setting out those provisions of the Guidelines which the plaintiff asserts were breached by the second defendant. Clause 1.19 of the Guidelines is in the following terms:

Clause 1.23 of the Guidelines is in the following terms:

Clause 1.36 of the Guidelines is in the following terms:

In my view, the first asserted error is not made out for a number of reasons.

To begin with, and contrary to the submissions of counsel for the plaintiff, it is plain from the second defendant’s certificate that a back injury was expressly included in the list of injuries to be assessed. [20] To the extent that counsel for the plaintiff based this asserted error on a failure by the second defendant to include a reference to the low back injury in the table setting out the injuries caused by the subject accident, and the associated assessment of whole person impairment in respect of those injuries, [21] I accept that the low back injury was not included in that table. However, when one considers that the reason for the inclusion of the table was (at least in part) to set out the whole person impairment attributable to injuries sustained in the subject accident, there was no utility in the second defendant including a reference to any back injury, for the simple reason that she had determined that such injury had not given rise to any impairment.

I am also not persuaded that the second defendant’s reasons set out in her certificate reflect a breach of any provision of the Guidelines. Contrary to the tenor of the submissions advanced by counsel for the plaintiff, and generally speaking, none of the provisions of the Guidelines upon which reliance was placed mandate the contents of a list of injuries. More specifically, there was no breach by the second defendant of clause 1.19. It is evident from the second defendant’s reasons that she considered all of the available evidence. She was satisfied that there was an injury to the low back sustained in the subject accident, but formed the view that such injury did not give rise to any whole person impairment. As far as clause 1.23 of the Guidelines is concerned, there could be no suggestion that the second defendant did anything other than consider any impairment as it was at the time of her assessment.

Further, clause 1.36 is directed not to injury per se, but to the process of evaluating permanent impairment, in circumstances where there is an identifiable impairment from an injury sustained in an accident, and an additional identifiable impairment caused by a subsequent event. In those circumstances, clause 1.36 of the Guidelines requires an assessor to identify the level of whole person impairment brought about by the subsequent event, as well as the level of whole person impairment arising from any injury sustained in the original accident. In the circumstances of this case, clause 1.36 had no role to play at all. This was because the second defendant found (consistent with the opinions of Assessor Reid and Assessor Ryan) that there was no identifiable whole person impairment arising from any injury to the plaintiff’s back in the subject accident, and that the need for the subsequent surgery was unrelated to such accident.

For all of these reasons, the second defendant’s approach was entirely correct, and did not reflect error.

If follows that this asserted error is not made out.

Under the heading “Details of any relevant injuries or condition sustained since the motor accident” the second defendant recorded (inter alia) the following: [22]

Having noted [23] that the plaintiff was involved in another motor vehicle accident on 5 March 2012, and having further noted that she had reported no change in symptoms from that accident, the second defendant stated: [24]

The second defendant then said: [25]

The second defendant then expressed her conclusions in respect of the plaintiff’s lower back injury, finding that the need for surgery was unrelated to the accident. [26]

The submissions advanced in support of this asserted error tended to overlap with those advanced in support of the third asserted error. However, as I understood it, counsel for the plaintiff submitted that there was no evidence to support the second defendant’s conclusion [27] that the April 2011 incident had resulted in an injury to the lower back requiring surgery, and that this amounted to an error.

Counsel submitted that the second defendant’s finding was based on her conclusion that prior to the April 2011 incident, the plaintiff’s symptoms were considered mild, and that it was only after the April 2011 incident the plaintiff had sought specialist care from Dr Papantoniou. It was submitted that such findings were made in the absence of evidence, and were inconsistent with other evidence which was before the second defendant.

Senior counsel for the first defendant submitted that the second defendant was entitled, and indeed obliged, to have regard to the medical evidence which was before her at the time of the assessment. He further submitted that for the purposes of such assessment, the second defendant was entitled to draw such inferences as were reasonable and open from that evidence.

Senior counsel submitted that the evidence before the second defendant demonstrated that the plaintiff’s low back symptoms which she had experienced between December 2004 and early April 2011 were symptoms consistent with having sustained nothing more than a soft tissue strain. It was submitted that the second defendant had determined that such soft tissue symptoms had stabilised, and had not deteriorated in a period of almost seven years. It was submitted that such findings were open.

Senior counsel further submitted that the second defendant had concluded that there had been a significant deterioration in the plaintiff’s back condition following the April 2011 incident, and that the nature of her condition had changed in the sense that for the first time, she had commenced to suffer neurological symptoms. It was submitted that on the evidence, those symptoms had progressively increased in severity, and had resulted in surgery being carried out in 2016. It was submitted that the medical evidence before the second defendant sustained the inferences that she had drawn, and that no error was made out.

In Insurance Australia Limited v O’Shannessy [28] Beech-Jones J said the following in relation to a challenge to the conclusion of an administrative decision-maker brought on the basis that there was no evidence to support a particular finding: [29]

In the course of her reasons [30] the second defendant, comprehensively and exhaustively, set out the history of the plaintiff’s lower back condition. The second defendant also set out histories provided by the plaintiff to medical practitioners from time to time in relation to that complaint. In doing so, the second defendant noted that prior to the April 2011 incident, the plaintiff’s symptoms were considered mild, with a variable range of restriction from year to year, and that it was only after the April 2011 incident that the plaintiff sought the intervention of Dr Papantoniou. On the basis of that evidence, the second defendant concluded that there was deterioration in the plaintiff’s symptoms following the April 2011 incident, leading to the necessity for surgery. She noted, in particular, that the plaintiff’s symptoms became constant and severe around that time, and were associated with bilateral radiculopathy, such symptoms not having been reported until 7 years post injury.

It is evident from the second defendant’s reasons [31] that she considered, in detail, the examinations which the plaintiff had undergone since the subject accident, and the histories she had given to those who examined her. She took into account the fact that, in particular, it was not until 2011 that the plaintiff was referred to Dr Papantoniou, in circumstances where there had been several medical assessments dating back to 2006 which reported varying symptoms, but which did not report findings which were considered sufficiently serious to warrant investigation, much less surgery. On the basis of the entirety of that evidence, the second defendant found that following the April 2011 incident there was a deterioration in the plaintiff’s symptoms which lead to the requirement for surgery, and that in all of those circumstances the need for surgery was unrelated to the accident.

In reaching all of these conclusions, the second defendant (as she was entitled to do) drew a number of inferences from the evidence as to the severity of the plaintiff’s low back condition prior to the April 2011 incident, compared with that condition afterwards.

Assuming, for present purposes, that the second standard referred to by Beech-Jones J is applicable, it could not be said in these circumstances that the second defendant’s determination was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. Alternatively, if the third standard referred to by his Honour is applicable, this is not a case where the evidence tended wholly to the contrary of the conclusions which were reached by the second defendant.

It follows that this asserted error is not made out.

In addressing the plaintiff’s left knee symptoms, the second defendant said: [32]

In addressing the plaintiff’s left leg symptoms, the second defendant said: [33]

In short, counsel for the plaintiff submitted that the second defendant had failed to consider whether any injury sustained in the subject accident had contributed to the April 2011 incident. He submitted that even if there was evidence to support a conclusion that the plaintiff sustained a low back injury in the April 2011 incident, the second defendant remained bound to assess whether any injury sustained in the subject accident had contributed to such later injury. It was submitted that the second defendant had failed to do so and that this reflected error.

Senior counsel for the first defendant submitted that the second defendant had noted the plaintiff’s conclusion that the April 2011 incident was caused by a sudden pain and “giving way” in her left knee, but had disagreed with that conclusion in circumstances where it was open to her to do so. It was submitted that the second defendant’s conclusions [34] reflected the fact that she had fully dealt with the plaintiff’s contention that her fall in April 2011 may have been caused by radicular symptoms from her low back to her left knee, or by left knee symptoms from an injury sustained to that joint in the subject accident.

It was further submitted that the second defendant had properly undertaken the task of considering any contribution made by the injuries sustained in the subject accident to the plaintiff’s current low back impairment. Senior counsel submitted that having considered this issue, the second defendant had found that the symptoms from the soft tissue injury to the back in 2004 gave rise to no impairment. He also pointed out that the second defendant had concluded that any soft tissue symptoms were stable between 2004 and early April 2011, and had no role to play in the plaintiff’s development of neurological and radicular symptoms on and from April 2011. It was submitted that these matters had been explained by the second defendant in her reasons.

It is plain from the second defendant’s reasons that she specifically considered whether the deterioration in the plaintiff’s symptoms following the April 2011 incident was as a consequence of, or was contributed to by, any injury sustained in the subject accident. She concluded, having considered all of the evidence, that there was no connection between the April 2011 incident and any injury which had been sustained in the subject accident. In particular, she found that there was no history of the plaintiff’s left knee giving way, nor was there any history of radicular complaints of sufficient severity to anticipate a neurological cause for the April 2011 incident.

It is evident from her reference to such matters that the second defendant took into account, and thoroughly considered, whether or not any injury sustained in the subject accident had contributed to the April 2011 incident. She concluded that there was no such contribution. That finding was open.

It follows that this asserted error is not made out.

Counsel for the plaintiff submitted that the second defendant’s reasons were inadequate and that in particular, she had failed to explain the methodology she had adopted in order to reach her conclusions, or the pathway of the reasoning that she had adopted. It was submitted, in particular, that the second defendant had failed to explain how the April 2011 incident related to the plaintiff’s symptoms leading to her spinal surgery.

Senior counsel for the first defendant submitted that the second defendant had clearly explained the path of reasoning by which she had arrived at her conclusion. It was submitted that, far from being inadequate, the second defendant’s reasons were detailed and comprehensive.

In determining whether the reasons of an administrative decision-maker are adequate, the question to be asked is whether the reasoning process can be discerned by reading the reasons as a whole, and by applying a beneficial construction to them. [35] Importantly, the reasons of an administrative decision-maker are not to be scrutinised overzealously, and their content is not that which might be expected of a judge. That said, they must demonstrate the path of reasoning which resulted in the particular conclusion(s) be reached. [36]

In the course of submissions, counsel for the plaintiff took the Court through specific parts of the second defendant’s reasons, essentially line by line, in an effort to make good the proposition that there was an error arising from the inadequacy of such reasons. That approach was fundamentally at odds with that outlined in the authorities to which I have referred, and was representative of the overzealous approach that such authorities eschew.

When the second defendant’s reasons are read as a whole, it is evident that she:

Viewed in that way, the second defendant’s path of reasoning is both cogent, and more than adequately exposed. Indeed in my view, the second defendant’s reasons were both well-structured, and comprehensive. They leave me in no doubt as to her conclusions, and how she reached them.

It follows that this asserted error is not made out.

For the foregoing reasons I make the following orders: