Insurance Commission of Western Australia v Gargoura

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

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

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

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

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

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

Section 44 of the Act relevantly provides:

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

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

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

Section 65(1) provides:

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

Section 133 relevantly provides:

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

There are two relevant Guidelines in the present case:

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

Clause 13 of the Guidelines relevantly provides:

Clause 16.24 of the Guidelines provides:

The PI Guidelines relevantly provide:

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

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

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

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

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

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

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

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

The Assessor expressed his conclusions as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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