Insurance Australia Limited t/as NRMA Insurance v Duc Thuong Le

1. [1]

   Insurance Australia Limited trading as NRMA Insurance (“the plaintiff”) seeks judicial review of a decision of a review panel of the Personal Injury Commission (“PIC”), which is the second defendant in this Court (“the review panel”). The third defendant is the President of the PIC. The second and third defendants filed submitting appearances. In these reasons, I will refer to the first defendant as the defendant. The plaintiff seeks orders inter alia in the nature of certiorari and mandamus.

2. [2]

   The defendant (who was the claimant in the PIC), Duc Thuong Le, was injured in a motor vehicle accident (“the accident”) on 7 October 2018. The plaintiff is the CTP insurer of the vehicle at fault in the accident.

3. [3]

   The defendant claimed that he had sustained a number of injuries as a result of the accident. He lodged a claim for statutory benefits with the plaintiff. As will be seen, the focal point of the plaintiff’s claim for relief is the head injury which formed part of Mr Le’s claim.

4. [4]

   The plaintiff had submitted to the Medical Assessor and the review panel that the head injury was not caused by the accident but had been caused by the defendant’s conduct in beating his head against the ground. However, the review panel in its decision on 24 August 2023 found that the accident was a more than negligible cause of the head injury. The review panel determined at [193]:

5. [5]

   The review panel had made other findings at [192], which are not challenged in the present proceedings:

Grounds of review

1. [6]

   The grounds of review are:

2. [7]

   In oral submissions in this Court, Ms Gumbert, counsel for the plaintiff, confirmed that the principal issue in the present application was the review panel’s findings as to the cause of the head injury. Ms Gumbert said that the relief sought in the grounds seeking relief encompassed “the whole of the decision merely because it was not practicable to carve up a decision and send parts back”. [1]

Background facts

1. [8]

   The accident occurred in the early hours of Sunday morning, 7 October 2018. The vehicle in which the defendant was travelling as a rear seat driver’s side passenger collided with the rear of a vehicle travelling in the same direction, then mounted the footpath and collided with a tree. It is accepted by the plaintiff that the vehicle had been travelling at about 100 kilometres per hour before the collision.

2. [9]

   A witness reported to police that he heard a person banging on the car window trying to get out. The witness smashed the passenger side front window and the person crawled out through that smashed window. That person was the defendant. The witness reported that the defendant was holding his shoulder in pain. His behaviour was erratic and he may have been intoxicated. He became aggressive and was yelling.

3. [10]

   A police officer, Constable Giblin, went to the scene of the accident. He reported that the defendant was standing in the middle of the road and behaving erratically. He refused to get off the road even though cars were passing close by. Constable Giblin pulled him off the road at which point the defendant started kicking and thrashing and trying to push the police officer away. When the defendant was restrained on the ground, he started beating his head on the ground forcefully and repeatedly, at least a dozen times.

4. [11]

   Constable Giblin believed that the defendant was drug affected. The police officer did not believe that the defendant had any head injuries that he could see prior to the defendant beating his head on the ground. He considered that given the force with which the defendant was hitting his head on the ground, the injuries that he saw were sustained during the hitting of the head on the ground.

5. [12]

   The defendant was taken by ambulance to hospital. Urine tests conducted in the hospital confirmed that the defendant had consumed illicit drugs, including benzodiazepines, cocaine and amphetamines prior to the accident.

The proceedings below

1. [13]

   In the PIC, the defendant claimed that he had suffered multiple injuries as a result of the accident. There was a dispute between the defendant and the plaintiff as to the medical assessment matter set out in sch 2 cl 2(e) of the Motor Accident Injuries Act 2017 (NSW) (“the Act”), namely whether the injury caused by the accident was a “threshold injury” for the purposes of the Act. From 1 April 2023 the Act provides that a “minor injury” is known as a “threshold injury”.

2. [14]

   A “threshold injury” is defined in s 1.6 of the Act as including a soft tissue injury. The plaintiff does not dispute that an injury to the brain is not a threshold injury.

3. [15]

   The plaintiff disputed that any of the injuries were non-threshold injuries and, as stated above at [4], disputed that any head or brain injury was caused by the accident as opposed to having been caused by the defendant’s own conduct following the accident.

The assessment by the Medical Assessor

1. [16]

   The defendant was assessed by Medical Assessor Cameron on behalf of the PIC, who determined on 28 August 2022 that all of the claimed physical injuries were minor injuries, but the head and traumatic brain injury was a non-minor injury caused by the accident. He issued a certificate in which he concluded the following injuries were a minor injury:

2. [17]

   The Medical Assessor concluded that the following injury was not a minor injury:

3. [18]

   In his reasons, the Medical Assessor stated that the mild traumatic brain injury was not a “minor” injury because there had been documented abnormalities of brain function and thus there had been an injury to the organ that is the brain.

4. [19]

   The Medical Assessor had earlier reviewed and summarised relevant documentation. His summary included the following:

5. [20]

   The Medical Assessor’s conclusions included the following:

The review panel’s decision and statement of reasons

1. [21]

   The plaintiff applied for review of the Medical Assessor’s decision, pursuant to s 7.26 of the Act, claiming that the assessor had failed to have regard to the defendant’s post-accident conduct, and that the assessor failed to give proper reasons.

2. [22]

   The review panel published detailed reasons for its decision. The review panel first set out the relevant statutory provisions, and also at [16] noted the test for causation of injuries, as discussed by Wright J in Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372 at [35] (“Briggs”).

3. [23]

   The review panel then referred to the Medical Assessor’s certificate at [17]-[27]. In recounting the review procedure at [28]-[34], the review panel noted that “the review is by way of a new assessment of all matters with which the medical assessment is concerned”.

4. [24]

   The review panel summarised the evidence before it, which included police and ambulance records, hospital admission records, the report of Dr Tisch dated 16 November 2018 and other treating medical records.

5. [25]

   The review panel reproduced at [38] the police report Event Ref NO E69832865 which records the following:

6. [26]

   The review panel quoted at [40] the record of interview which Constable Giblin provided to an investigator retained by the plaintiff which included the following statement of a witness at the scene:

7. [27]

   At [41]-[44] of the review panel’s decision, further parts of Constable Giblin’s account given to the insurance investigator were reproduced, including the following:

8. [28]

   The review panel reproduced the ambulance report at [45] which included:

9. [29]

   The review panel stated at [46] that “Droperidol is a butyrophenone used in acute care settings for a variety of purposes, including the rapid sedation of patients with agitation, aggression or who are exhibiting violent behaviour …”.

10. [30]

    The review panel recounted the plaintiff’s submissions at [84]-[95], which included that “Medical Assessor Cameron was not aware that by the time the ambulance arrived the claimant was restrained against the ground and had repeatedly struck his head against the floor out of his own volition”: at [88]. The plaintiff submitted that Medical Assessor Cameron “failed to address any of the evidence of the claimant’s self-inflicted head trauma”, therefore “it is necessary to determine whether the claimant solely suffered a brain injury in the accident, whether he solely suffered a brain injury due to the self-inflicted head strikes or whether there was a brain injury in the crash as well as self-inflicted head strikes”: [89] and [91]. The review panel referred to the plaintiff’s specific submissions as to causation at (1)-(10) of [92]. In (6), the plaintiff had submitted:

11. [31]

    The review panel noted at [94] that the plaintiff submitted that “there is no evidence to suggest that the claimant’s head was impacted during the collision”, that he was a rear passenger wearing a seat belt at the time of the collision, and that Constable Giblin did not note any signs of head injuries prior to his self-inflicted head strikes. The review panel stated at [95] that the plaintiff “submits the head injury and related symptoms was [sic] not causally related to the accident but was self-inflicted by the [defendant]”.

12. [32]

    After detailing the defendant’s submissions, the review panel referred to the defendant’s assessment by Medical Assessor Tai-Tak Wan on 17 July 2023, his personal and social history and the “[h]istory of the accident”. At [115]-[116], the review panel recounted what was said by the defendant to Medical Assessor Wan. Paragraph [116] is as follows:

13. [33]

    The review panel referred to the defendant’s mental state screening test and considered that he did not give his best effort in doing the test. The review panel considered that, whilst his abstract thinking and executive function were impaired, it was “most likely due to inadequate effort or the existence of a psychological condition, such as severe depression, as the pattern of difficulties is different from what would be expected in a mild to moderate traumatic brain injury”: [140].

14. [34]

    In relation to the claimed head injury, the review panel concluded (at [167]-[168]):

15. [35]

    After noting that there was a dispute as to causation of the closed head injury, the review panel, having regard to the comments of Wright J Briggs, considered it was appropriate to apply the test of causation set out in Part 6 of the Guidelines. The review panel stated at [170] that in Briggs “Wright J also reminded us the relevant legal test in relation to causation does not require scientific certainty”. The review panel cited what was said by his Honour at [70]-[72]. In concluding that the accident did materially contribute to the traumatic brain injury, the review panel said:

16. [36]

    The review panel went on to say at [174] that it was less confident about the seizure. The review panel stated that it had some doubt as to whether the defendant “even suffered a seizure”. The review panel noted that the seizure “reportedly occurred when the [defendant] was being transported to hospital. However, when the [defendant] was assessed by a neurologist at the hospital no signs of seizure activity were apparent”. The review panel stated at [176]-[177]:

Relevant legislative provisions

1. [37]

   Civil Liability Act 2002 (NSW):

2. [38]

   Motor Accident Injuries Act 2017 (NSW):

3. [39]

   State Insurance Regulatory Authority – Motor Accident Guidelines:

A summary of the grounds of review

1. [40]

   The plaintiff raises four grounds of review in relation to the decision of the review panel. Those errors, shortly stated, are said to be: firstly, that the review panel reversed the onus of proof; secondly (which is part of the first ground of appeal), the review panel failed to apply the lawful test of causation; thirdly, that the review panel “failed to expose its actual path of reasoning” (ground 2); fourthly, the review panel made a finding when there was no evidence to support that finding (ground 3); and fifthly, the review panel “failed to respond to a substantial and clearly articulated argument” (ground 4).

2. [41]

   In oral submissions, Ms Gumbert accepted that the first 160 paragraphs of the review panel’s statement of reasons were “by and large” very good but submitted that the review panel had fallen at the “last hurdle” which was when it came to “actually making” the decision with respect to causation. [2]

3. [42]

   The plaintiff’s complaint of the reversal of the onus of proof focuses on [173] of the review panel’s reasons in which the following appears:

4. [43]

   The plaintiff contended that the review panel incorrectly reversed the onus of proof by relying on the finding that “there is no evidence to establish” that the plaintiff was agitated prior to the accident as forming the basis for the conclusion that the agitation and head-striking was caused by the accident. The plaintiff cited Allianz Australia Insurance Limited v Mackenzie & Ors [2014] NSWSC 67 (“Allianz Australia”) in which the plaintiff submitted a similar error occurred.

5. [44]

   The plaintiff contended that the review panel failed to apply the lawful test of causation in accordance with Part 6 of the Motor Accident Guidelines, reproduced at [39] above (“the Guidelines”). The plaintiff submitted that the review panel was also required to conduct the assessment of causation in accordance with ss 5D and 5E of the Civil Liability Act (reproduced at [37] above).

6. [45]

   Mr Romaniuk, Senior Counsel for the defendant, submitted that the review panel was clearly aware of the test of causation explained by Wright J in Briggs. He submitted that the review panel’s reasoning was “perfectly acceptable”: there was no reversal of onus and the paragraph in the reasoning was “a statement of the evidence before them”. [3]

7. [46]

   The review panel was plainly aware of how the question of causation of injuries was to be determined. The review panel quoted at [16] what was stated by Wright J in Briggs at [35]. Furthermore, after referring to the dispute as to causation of the closed head injury at [169], the review panel had “regard to the comments of Wright J in Briggs” and considered it was appropriate “to apply the test as to causation set out in Part 6 of the Guidelines”. When referring once again to Briggs at [170], the review panel stated that it was reminded by Wright J “that the relevant legal test in relation to causation does not require certainty.” The review panel then quoted what was said by Wright J in [70]-[72].

8. [47]

   Prior to referring to the absence of evidence to establish agitation in [173], the review panel said in the same paragraph:

9. [48]

   The decision in Allianz Australia does not assist the plaintiff. In that case, Hoeben CJ at CL drew a distinction between the approach of the review panel in relation to the right shoulder injury and to the low back injury. In relation to the right shoulder injury, his Honour concluded at [36] that the onus of proof had been reversed but that was not the case in respect of the low back injury. His Honour said at [38]-[39]:

10. [49]

    In the present case, the review panel’s initial finding was that the accident occurred at a high speed estimated to be 100km/h and the defendant having to extricate himself through a window supported a causal connection between the head injury and the accident. It was only after the review panel made this finding that the review panel referred to the absence of evidence of the defendant being agitated prior to the accident.

11. [50]

    When the review panel referred to the absence of evidence, the review panel was making a statement of the available evidence before it. The review panel did not reverse the onus of proof.

12. [51]

    In written submissions in reply, the plaintiff raised Insurance Australia Limited trading as NRMA Insurance v Trkulija [2023] NSWSC 956 as another decision which was said to support the contention that the onus of proof had been reversed. In that case, the review panel’s reasons considered by Chen J at [77] and [84] were very different to the present case and do not assist the plaintiff’s contention.

13. [52]

    The plaintiff has not established ground 1.

14. [53]

    The plaintiff submitted that the review panel failed to expose its path of reasoning in relation to critical aspects of how it came to determine the causation of the injury, which included how the defendant sustained a brain injury in the accident. The plaintiff contended that it was not possible to discern how or why the review panel concluded that the defendant sustained a traumatic brain injury as a result of the accident. The plaintiff complained that the actual path of reasoning was not exposed and there were unexplained gaps in the reasoning which could not be filled by necessary inference. The plaintiff submitted that the failure to disclose the path of reasoning was an error of law on the face of the record.

15. [54]

    Ms Gumbert referred to inconsistent reasoning by the review panel at [168] and at [176]. Ms Gumbert submitted that at [168] the review panel was satisfied that the defendant had sustained a mild traumatic brain injury “noting the GCS and the seizure activity” but later stated at [176] that if there was a seizure, the accident was not a contributing factor. The plaintiff contended that this was internally inconsistent reasoning, constituting error of law on the face of the record.

16. [55]

    The defendant submitted that the review panel’s causation finding, as explained by it, represents an orthodox outcome of the application of factual causation. The defendant pointed out that his case was that he had been involved in a high-speed motor vehicle accident that caused a head injury. On the facts of the collision, the defendant’s case was sustainable in a causal pathway determined on the balance of probabilities. It was the plaintiff which was advancing an alternative causal pathway. The defendant argued that the statements at [173] reflect “the review panel exposing its reasoning to the deliberations of its path of reasons on the causation dispute between the parties”. [4]

17. [56]

    In oral submissions, Mr Romaniuk said there was no inconsistency between [168] and [174]. He said that the review panel was at [168] examining the defendant’s condition and complaints. This was said to be “the diagnosis point rather than the causation point”. [5]

18. [57]

    In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”), French CJ, Crennan, Bell, Gageler and Keane JJ held at [47]:

19. [58]

    The High Court said further at [55]:

20. [59]

    As may be seen in the summary of the statement of reasons at [21]-[36], the review panel set out in considerable detail all of the evidence relating to the accident. The review panel’s reasons reveal a step-by-step approach to the task before it. The review panel was well-apprised of the plaintiff’s submissions as to a lack of a causal connection between the head injury and the accident. In reaching its decision, the review panel was entitled to have regard to the high speed at which the vehicle was travelling; that it collided with the rear of another vehicle; mounted the footpath; and collided with a tree. The review panel was also entitled to have regard to the defendant extricating himself from the vehicle which had been significantly damaged, and his state of agitation.

21. [60]

    In accordance with its function and the requirement in Wingfoot at [55], I am of the opinion that the review panel’s reasons for its decision explains the path of its reasoning in sufficient detail to enable a court to see whether the opinion did or did not involve an error of law. The review panel was not required to explain how it came to its decision by reference to the competing contentions of the parties: Wingfoot at [47].

22. [61]

    There is no inconsistency in the review panel’s reasoning at [168] and [176]. The review panel noted at [168] “the seizure activity observed”. The review panel was referring to the observations of an ambulance officer recorded in the ambulance report that “en route to SVH [the patient] proceeded to have seizure like activity”. The review panel’s doubt at [174] as to whether the defendant “even suffered a seizure” and if he did was “not satisfied on the balance of probabilities the accident was not a contributing factor” did not mean the review panel could not take into account “the seizure activity observed” by the ambulance officer as a factor in reaching its conclusion on the balance of probabilities that the defendant sustained a mild traumatic brain injury as a result of the accident.

23. [62]

    The plaintiff has not established ground 2.

24. [63]

    The plaintiff submitted that the review panel did not identify any evidence that could logically support a finding that the defendant sustained a head injury or traumatic brain injury as a result of the accident. The plaintiff referred to its submissions to the review panel.

25. [64]

    The plaintiff cited Insurance Limited t/as NRMA v Richards [2023] NSWSC 909 (“Richards”) and Swain v Waverly Municipal Council (2005) 220 CLR 577; [2005] HCA 4. The plaintiff submitted that making a finding that there was a traumatic brain injury sustained in the accident when there was no evidence to support that finding was a jurisdictional error.

26. [65]

    Mr Romaniuk referred to the factual aspects of the case which included the substantial impact of the vehicle with the tree. He pointed out that the police and ambulance officers did not attend the scene of the accident for some minutes after it had happened. By that point, Mr Romaniuk said, the defendant had been extricated from the vehicle because a witness had thought the vehicle might explode or burn, and was found in an agitated state.

27. [66]

    It is well-established that factual findings must be supported by logically probative evidence. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, Deane J said at 367:

28. [67]

    As Schmidt AJ observed in Richards at [121]-[122], there must be a factual basis for findings and they cannot rest “simply on a consideration of possibilities”.

29. [68]

    The plaintiff correctly submitted the test is not whether there was any evidence at all, but rather whether there was no evidence that ought reasonably to satisfy the decision maker that the fact sought to be proved is established: Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 per McHugh J at [39]; Origin Energy LPG Ltd v Bestcare Foods Ltd [2013] NSWCA 90 per Ward JA at [88]-[90].

30. [69]

    Before reaching its decision, the review panel was obliged to consider all of the evidence which included Constable Giblin’s statement of the defendant hitting his head on the ground which was done at least a dozen times and that the Constable did not see any visible head injuries prior to that happening. There was also the evidence of the defendant wearing a seat belt at the time of the collision and being under the influence of drugs.

31. [70]

    The weight to be given to Constable Giblin’s statement was a matter for the review panel, which was not required to state what it made of that evidence: Wingfoot at [47].

32. [71]

    The defendant was unable to give an account of the accident. He told Dr Tisch that he was a rear seat passenger but did not disclose anything further about the accident. His diagnoses included amnesia.

33. [72]

    The review panel was plainly aware of all the evidence before it. The review panel based its findings that the accident was a contributing cause of the head injury which was more than negligible on:

    1. (1)

       The accident occurring at high speed estimated to be 100km/h. There was evidence as I have previously stated, that the vehicle collided with the rear of another vehicle, mounted the footpath and collided with a tree;

    2. (2)

       The defendant had to extricate himself from the vehicle through a window with the help of a bystander. There was evidence that the defendant had been a passenger in the rear seat of the vehicle. The bystander heard the defendant banging on the window trying to get out of the damaged vehicle. The bystander smashed the passenger side front window through which the defendant crawled out. The bystander saw the defendant holding his shoulder in pain; and

    3. (3)

       There was no evidence that, notwithstanding the presence of drugs, the defendant was agitated prior to the accident. The bystander referred to the defendant’s erratic behaviour as did Constable Giblin. Constable Giblin made mention of the defendant kicking and thrashing and trying to push him away. All of this occurred before the defendant beat his head on the ground.

34. [73]

    The review panel found that the defendant’s agitation and conduct in striking his head on the ground was due to the impact of the accident in addition to the presence of stimulant drugs in his body.

35. [74]

    Viewing the evidence in combination, it was reasonably open to the review panel to reach the conclusion that the accident was a contributing cause of the head injury which was more than negligible.

36. [75]

    The plaintiff has not established ground 3.

37. [76]

    The plaintiff submitted that it had clearly put causation of the head/brain injury in issue in its submissions. More specifically, the plaintiff pointed out that it had raised three possibilities as to how any head/brain injury had been caused and contended that it was necessary for the review panel to undertake the task of determining which was the cause.

38. [77]

    It was the plaintiff’s contention that by failing to respond to the argument, the review panel denied procedural fairness and constructively failed to exercise its jurisdiction.

39. [78]

    The plaintiff cited Rodger v De Gelder and Others [2015] NSWCA 211 (“De Gelder”) at [95] and [108]-[109] in which the review panel had failed to respond to a substantial argument and the Court of Appeal held that amounted to jurisdictional error.

40. [79]

    Mr Romaniuk referred to clauses 6.5 to 6.7 of the Guidelines and argued that none of the three questions posed by the plaintiff in its submissions was the legal test to be applied. Senior Counsel contended that a demand to answer causal questions that are not correctly stated, does not lay the foundation for a complaint because the review panel would have misdirected itself in answering those questions.

41. [80]

    The plaintiff’s contention relies upon the review panel’s failure to determine three possibilities raised in its written submissions. Those possibilities were “whether the claimant solely suffered a brain injury in the accident, whether he solely suffered a brain injury due to the self-inflicted head strikes or whether there was a brain injury in the crash as well as self-inflicted head strikes”: review panel’s reasons at [91].

42. [81]

    In De Gelder, Gleeson JA (with whom Macfarlan and Leeming JJA agreed) said at [93]:

43. [82]

    In Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 (“Keen”), Leeming JA (with whom Basten JA and Simpson AJA agreed) drew a distinction between a court’s task and that of an assessor. Leeming JA said at [39]-[40]:

44. [83]

    In that case, the Court rejected the insurer’s argument that the medical assessor’s failure to respond to what was said to be a substantial argument that went to causation amounted to a denial of procedural fairness or alternatively, a constructive failure to exercise jurisdiction. Leeming JA said at [45]:

45. [84]

    Whilst it may be doubted that in accordance with the Court of Appeal’s reasons in Keen the review panel was obliged to answer the plaintiff’s possibilities, the plaintiff’s contention may be rejected on another basis.

46. [85]

    I am not persuaded that the three possibilities raise a “substantial argument”. As Basten JA explained in Insurance Australia Ltd t/as NRMA Insurance v Milton [2016] NSWCA 156 (“Milton”) at [9], “a substantial argument means one which is clearly material or undoubted relevance”. The determination of what is a material or relevant consideration is to be identified by reference to the “constituting statute (or any other source of jurisdiction) and not primarily, by reference to the submissions of a party”: Milton at [10]-[11].

47. [86]

    The scope of the statutory functions of a review of medical assessments by the review panel are found in s 7.26 of the Act (reproduced at [38] above) for which guidance is provided in the Guidelines.

48. [87]

    The review panel’s task was to determine whether the head injury was caused or materially contributed to by the accident. The guidance provided by cl 6.7 of the Guidelines provided that the accident did not have to be the sole cause “as long as it is a contributing cause, which was more than negligible”. The review panel undertook its task in accordance with the Guidelines and s 5D of the Civil Liability Act 2002 (NSW).

49. [88]

    The plaintiff’s three possibilities raised matters of fact which the review panel was under no legal obligation to answer. These possibilities were part of the plaintiff’s submission to the review panel that the head injury and related symptoms were not causally related to the accident but were self-inflicted. This was the plaintiff’s substantial argument which the review panel responded to in its statement of reasons.

50. [89]

    The review panel’s failure to specifically answer the three possibilities in its statement of reasons does not amount to a failure to accord natural justice and jurisdictional error.

51. [90]

    The plaintiff has not established ground 4.

Conclusion

1. [91]

   Given that none of the grounds raised by the plaintiff have been made good, the summons seeking judicial review must be dismissed. I make the following orders:

   1. (1)

      Order that the summons filed 24 November 2023 be dismissed.

   2. (2)

      Order that the plaintiff pay the first defendant’s costs in this Court.