Is a Review Panel entitled to rely upon medical literature to make a decision that a party has not considered? The Supreme Court provides the answer in Raina v CIC Allianz Insurance Limited.
Author: Katherine Teague
Judgment date: 25 January 2021
Citation: Raina v CIC Allianz Insurance Limited  NSWSC 13
Jurisdiction: Supreme Court of New South Wales (Common Law)*
The Claimant was involved in a motor vehicle accident on 20 September 2017, sustaining an injury to his cervical spine. His doctors recommended neurosurgery. The Insurer submitted the surgery was not reasonable and necessary or related to the injury.
The Insurer referred the dispute to SIRA and Professor Home, Occupational Physician, was appointed to examine the Claimant. The Claimant challenged whether Professor Home was appropriately qualified to assess neurological issues and requested a neurosurgeon be appointed instead. SIRA appointed Dr Drew Dixon, Orthopaedic Surgeon, to undertake the assessment.
Dr Dixon issued a Certificate certifying the Claimant sustained an injury to the cervical spine as a result of the accident and found in favour of the recommended procedures.
The Insurer lodged an Application for Review contending that Assessor Dixon’s findings did not equate with the medical history of the Claimant’s injury, including his complaints as recorded by his GP following the accident.
The Proper Officer referred the dispute to a Review Panel which was constituted by Professor Ian Cameron (Rehabilitation Specialist), Dr Geoffrey Stubbs (Orthopaedic Surgeon), and Dr Clive Kenna (General Practitioner with expertise in musculoskeletal medicine and pain management).
The Claimant challenged the constitution of the review panel, contending Professor Cameron and Dr Kenna do not have the appropriate qualifications to properly consider whether neurosurgery is required and whether neurosurgery is reasonable and necessary. This challenge was rejected.
The Claimant wrote to the Proper Officer refusing to attend the appointment on the basis that the Review Panel was improperly constituted.
The Review Panel subsequently issued a Certificate specifying that the Claimant suffered a soft tissue injury to the cervical spine and concluding that the proposed surgery was not reasonable and necessary.
The Claimant filed a summons in the Supreme Court of NSW to have the decisions of the Proper Officer refusing to reconstitute the Review Panel, and the Review Panel’s Medical Assessment Certificate set aside and for the matter to be remitted to SIRA for reallocation to a different Proper Officer for reference to a different constituted Review Panel.
The Claimant contended the decisions of the Proper Officer and the Review Panel occasioned jurisdictional error, error of law on the face of the record or alternatively that the Proper Officer and the Review Panel constructively failed to exercise their statutory power in making the decision.
The Claimant argued the Review Panel denied him procedural fairness as the Panel considered 22 medical studies, of which only 2 had been referred to in the evidence. Further, the Claimant contended the failure to put him on notice of their intention to utilise the studies amounted to a denial of procedural fairness.
Additionally, the Claimant argued the Review Panel did not give him notice of the questions it had for him and so denied him the opportunity to respond. The Claimant also argued the Panel had power to request further information, by virtue of clauses 16.16; 16.19.6; and 16.21 of the Medical Assessment Guidelines, however the Panel failed to avail itself of this opportunity.
Furthermore, the Claimant submitted it is a requirement of clause 1.41 of the Guidelines that where there are inconsistencies between the medical assessor’s clinical findings, and any medical records, the injured person must be given the opportunity to respond to the inconsistencies.
Finally, the Claimant argued the Review Panel erred by failing to apply the correct test for causation. The Claimant argued the Panel disregarded evidence of right-sided symptomology and found that the absence of contemporaneous evidence was determinative of causation.
The Insurer submitted the Review Panel did not deny the Claimant procedural fairness by referring to peer reviewed articles in making its assessment. The Insurer argued it was necessary for the Panel to refer to the articles on which it relied but in demonstrating its process of reasoning it chose to outline and summarise the materials it relied upon. Further, the Insurer argued the material was not a “critical factor” in the Panel’s decision.
Justice Campbell dealt with each of the Claimant’s complaints individually, as follows:
His Honour found the Review Panel did not draw upon their accumulated medical knowledge, but rather they placed significant weight on the medical literature which was influential in their decision-making process. His Honour held the conclusions derived from the medical literature should have been drawn to the Claimant’s attention for his comment.
This ground was made out.
The Claimant was provided an opportunity to present his case, and, in particular, explain the inconsistencies to the examining assessor, however he refused to attend the assessment. The Claimant was warned non-attendance may result in adverse findings being made. His Honour confirmed it is not a requirement for the Panel to provide a series of written questions for a Claimant to consider.
This ground was not made out.
The Claimant put to the Review Panel in writing that within 24 hours of the accident he had developed excruciating pain, radiating down into his right arm. The Claimant’s treating neurosurgeon, medico-legal expert and Assessor Dixon were also provided with this history from the Claimant.
His Honour held the Review Panel was entitled to reject the “established facts” on factual grounds and that it was entitled to make its own assessment on the facts in dispute.
This ground was not made out.
Whilst the Review Panel found the Claimant’s contemporaneous clinical records to be determinative to the question of legal causation, his Honour held the Review Panel answered the correct question as per section 5D(1)(a) of the Civil Liability Act.
This ground was not made out.
As the Claimant succeeded on one of his four grounds, the court ordered the Medical Assessment Certificates be set aside and remitted the matter to SIRA for reference to a differently constituted review panel.
This decision confirms that decision-makers who place significant weight on material outside their experience, that is capable of influencing their decision, should ensure a party has been given an opportunity to present their case in response to it. Further, this case confirms the ability of decision-makers to reject previously accepted facts and to arrive at different conclusions regarding causation, so long as the test in section 5D of the Civil Liability Act has been correctly applied.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.