No Further Explanations of Reasoning is Required for Findings of Causation: Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359

In Brief

• A Medical Assessor’s finding on the issue of causation is a finding of fact. It does not require further explanation of reasoning and is not reviewable unless it is not supported by any evidence.
• A Medical Assessor can be inferred to have made a finding that pre-existing complaints have resolved by the time of the accident where this is not contradicted by evidence.

Facts

The Supreme Court handed down its decision in Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359 on 29 October 2024.

The Claimant claimed that he had sustained several injuries as a result of a motor vehicle accident. The Insurer disputed that any of the claimed injuries were non-threshold injuries.

A PIC Medical Assessor determined there to be a non-threshold injury in the lumbar spine in the form of L5/S1 disc prolapse and right S1 radiculopathy while determining that a disc lesion at L4/5 was not caused by the subject accident.

The Insurer sought a review of this assessment, complaining that the Medical Assessor had ignored the Claimant’s pre-existing degenerative pathology at the L5/S1 level, particularly where the Medical Assessor had concluded that the pathology at L4/5 was not causally related to the subject accident.

On review, the Medical Review Panel found that the Claimant did have continuing low back pain with radicular symptoms related to the subject accident. Although there was no clinical sign of radiculopathy at the time of the Review Panel’s examination, the Review Panel concluded that the radiculopathy present at the time of the initial Medical Assessor’s assessment meant that the injury to the Claimant’s lumbar spine was not a threshold injury.

The Insurer sought judicial review of the Medical Review Panel’s decision.

Supreme Court Reasons

Justice Griffiths rejected all four grounds of review raised by the Insurer:

Ground 1

The Insurer submitted that the Review Panel simply reasoned that because radiculopathy was diagnosed by the initial Medical Assessor after the date of the accident, it was caused by the accident. The Insurer submitted that the Review Panel has not found factual causation between the Claimant’s radiculopathy and the subject accident.

Justice Griffiths found that the Review Panel did make a finding of factual causation. Justice Griffiths inferred that the Review Panel must have determined that although the Claimant experienced back pain prior to the accident, the pain had resolved by the time of the accident. His Honour then noted that the Review Panel made a finding that the Claimant was in continuous pain after the accident.

Justice Griffiths also pointed out that the Review Panel had specifically made findings on causation by stating that the Claimant had “sustained” soft tissue injuries to his lumbar spine in the motor accident. His Honour noted that the Review Panel’s use of the term “soft tissue injuries” instead of “radiculopathy” is not fatal or determinative.

Justice Griffiths highlighted that the task of the Medical Assessor and Review Panel was to make findings on issues of fact and the question of causation is quintessentially a question of fact. His Honour cited Leeming JA’s finding in the NSW Court of Appeal case of Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 that once a finding of fact is made, “no further explanation of the reasoning is required”.

Justice Griffiths further cited Leeming JA’s acknowledgement that there would be an error of law if there was no evidence to support a finding of fact on causation. Justice Griffiths noted based on case law that this ground of review does not apply as long as there is some material to support the relevant finding. His Honour identified the supporting evidence in the current case as including the findings made by the initial Medical Assessor and GP records 9 months prior to the accident stating the Claimant’s back pain was improving slowly.

Accordingly, Griffiths J found that the Review Panel did determine the question of causation.

Ground 2

The Insurer alleged that the Review Panel failed to provide adequate reasons.

Justice Griffiths considered that the Review Panel did adequately provide its reasons, based on the same factors that lead to his Honour’s finding that the Review Panel did make a finding of factual causation.

Ground 3

The Insurer complained that the Review Panel’s certification of there being a “lumbar spine soft tissue injury” as a non-threshold injury is an error of law, as a soft tissue injury is a threshold injury.

Justice Griffiths rejected this ground, stating that the certificate is to be read together with the statement of reasons.

Ground 4

The Insurer alleged that the Review Panel failed to respond to its substantial and clearly articulated submissions relating to the pathology at the L5/S1 level being degenerative.

Justice Griffiths found this ground to have overlapped with the Insurer’s other grounds and considered that the Review Panel had adequately addressed these submissions.

Key Learnings

The Insurer advanced an argument that the Review Panel did not deal with a pre-existing condition as a potential cause of the Claimant’s alleged injury. The Court rejected this argument by drawing an inference for the Review Panel consistent with the Review Panel’s explicit findings and other evidence before the Review Panel.

This highlights the rule that a Medical Assessor’s finding on the issue of causation is a finding of fact, which does not require further explanations of reasoning and is not reviewable unless it is not supported by any evidence.