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The role of medical science within the test of causation

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Judgment date: 31 March 2022

Citation: Briggs v IAG Limited t/a NRMA Insurance

Jurisdiction: Supreme Court, Wright J

 

Introduction

While the relevant tests of causation and the importance of medical science in these tests have been previously deliberated, the Supreme Court of New South Wales provides clarity in Briggs v IAG Limited t/a NRMA Insurance as to the threshold of scientific certainty required by decision-makers.

Principles

  1. A review panel constituted under the Motor Accident Injuries Act 2017 must avoid falling into jurisdictional error by performing its statutory task under section 7.26 of the Act and ensuring that its assessment is conducted afresh.
  2. The proper approach to causation is not to require satisfaction to a degree of scientific certainty, but rather on the balance of probabilities. If medical evidence available to the parties suggests a connection between events is possible, a decision maker may, after examining all the evidence, decide that the connection is in fact probable.

Background

Mr Briggs suffered injuries in a motor vehicle accident on 22 May 2018. He allegedly sustained injuries to the cervical and lumbar spine, including an annular tear of the L4/5 disc.

A dispute arose as to whether Mr Briggs’ injuries were “minor” in accordance with s 1.6 of the Motor Accident Injuries Act (NSW). The dispute was determined by a Medical Assessor however, the certificate was challenged by Mr Briggs. A review panel constituted by the State Insurance Regulatory Authority provided a new certificate and reasoning.

The review panel referenced a Spine Journal article in reaching their decision that the lumbar spine injury was a minor injury not causally related to the accident, because it was not an acute traumatic injury. The article had not been referenced in any of the material relied upon by the Medical Assessor or the parties.

Mr Briggs sought judicial review of the review panel’s certificate on several grounds including that he was denied procedural fairness as he was not given notice of the panel’s intention to rely on the Spine Journal article.

The Supreme Court quashed the review panel’s certificate and reasoning on the basis that the Claimant was not notified that the decision maker would be relying on introduced information to draw an adverse conclusion about the claim. As a result of the decision, the review of the medical assessment was allocated to a second review panel to complete a fresh review according to law.

The second review panel agreed with the findings reached by the Medical Assessor. It found that there could be no scientific certainty that the annular tear was caused by the accident based on medical imaging. Moreover, there was a possibility that the injury was not a tear. Mr Briggs again sought judicial review, arguing that the panel adopted the wrong approach to causation.

Decision

Failure to fulfil statutory obligation

Justice Wright held that the second review panel failed to conduct the assessment of the correct matter and failed to conduct their assessment afresh as required by s 7.26(6), thereby failing to perform its statutory role.

Failure to apply the correct test of causation

The second review panel found that the evidence demonstrated no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident. Justice Wright found that this reasoning did not accord with the relevant test of causation, which does not require scientific certainty.[1] The court emphasised that a finding of a causal connection may be open without any medical evidence at all to support it, or even when the expert evidence does not rise above opinion that a causal connection is possible.[2] Having regard to the Motor Accident Guidelines, the panel should have made a “non-medical informed judgement” as to whether it was likely that the accident caused or contributed to Mr Briggs’s injury.

It was held that the second review panel had asked itself the wrong question in relation to the Claimant’s injury and thus failed to obtain and consider the wrong relevant material.

Final Result

The Supreme Court quashed the second review panel’s certificate and reasoning.

The matter was remitted to the SIRA to be determined, afresh in accordance with s 7.26(6) and the correct principles governing causation.

Why this case is important

This case confirms that, to comply with section 7.26 of the Act, a review panel must conduct its assessment afresh. It will fall into error if the review is limited to just that aspect of the assessment under challenge.  This obligation extends to conducting a re-examination of the claimant unless inappropriate.

Determination of the existance of a causal connection between events does not require satisfaction to a degree of scientific certainty, but rather on the balance of probabilities. If medical evidence available to the parties suggests a connection between events is possible, a decision maker may, after examining all the evidence, decide that the connection is in fact probable.

[1] Metro North Hospital and Health Service v Pierce [2018] NSWCA 11.

[2] Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197; Metro North Hospital and Health Service v Pierce [2018] NSWCA 11 at [140].

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