Supreme Court New South Wales Medium Neutral Citation: Allianz Australia Insurance Ltd v Benjamin Ridge [2018] NSWSC 1239 Hearing dates: 1 June 2018 Decision date: 10 August 2018 Jurisdiction: Common Law Before: Button J Decision: (1) The summons of the plaintiff, Allianz Australia Insurance Ltd, is dismissed. (2) The plaintiff must pay the costs of the first defendant, Benjamin Ridge, of the proceedings before me. Catchwords: ADMINISTRATIVE LAW – judicial review – operation of s 5 of Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) – asserted error of Review Panel in failing to apply provisions of Motor Accidents Compensation Act 1999 (NSW) in assessing "equivalent impairment" under Lifetime Care and Support Guidelines – no legal error established – summons dismissed Legislation Cited: Lifetime Care and Support Guidelines, cl 2.3 Motor Accidents Compensation Act 1999 (NSW), ss 131, 132, 133 Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 5, 15 Motor Accidents Medical Guidelines Cases Cited: Nominal Defendant v Adilzada [2016] NSWCA 266 Category: Procedural and other rulings Parties: Allianz Australia Insurance Ltd (Plaintiff) Benjamin Ridge (First defendant) Lifetime Care and Support Authority (Second defendant) A Review Panel appointed by the Lifetime Care and Support Authority (Third defendant) Representation: Counsel: KP Rewell SC (Plaintiff) M Finnane QC (First Defendant) Solicitors: Hall & Wilcox (Plaintiff) Lamrocks Solicitors (First Defendant) File Number(s): 2018/42769 Publication restriction: Nil Judgment Background 1. On 1 April 2010, Mr Benjamin Ridge was injured in a motor vehicle accident. Although he is the first defendant in the proceedings before me regarding judicial review, he is the plaintiff in the substantive proceedings, and I shall refer to him as such throughout this judgment. 2. The principal injury suffered by the plaintiff was to his right arm. That was an extremely severe right-sided brachial plexus injury (to translate that into terms a layperson could understand, that is an injury that involves damage to the nerves between the arm and the hand, and which may cause weakness, loss of feeling or of movement). Regrettably, the plaintiff has been left with very little function in his right shoulder, arm, and hand. He has no use or feeling in his right forearm, wrist, hand or fingers, and little sensation in the right upper arm down to the elbow. 3. The plaintiff does, however, have some sensation and some use of his right arm, he has the cosmetic advantage of a right arm, and its presence provides him with postural support. 4. The substantive defendant in the proceedings is Allianz Insurance Australia Ltd (Allianz), that insurance company being the compulsory third-party insurer of the driver of the vehicle said to have been at fault in causing the injuries to the plaintiff. Allianz is the plaintiff in the proceedings before me seeking judicial review. Again for the convenience of the reader, I shall simply refer to it as "the insurer". 5. In due course, the plaintiff was accepted as an interim patient within the Lifetime Care and Support Scheme (the LCS Scheme), on the application of the insurer. The relevant decision-maker at that stage was the Lifetime Care and Support Authority (the Authority), and it came to its decision on 29 July 2015. 6. On 11 April 2016, an Assessment Panel convened pursuant to s 14 of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) (the LCS Act). In due course, the Assessment Panel issued a certificate to the effect that the plaintiff was not eligible to participate in the LCS Scheme, because the permanent impairment of his right upper arm was not equivalent to either a shoulder disarticulation or a forequarter amputation. That was on the basis that the plaintiff had some function in his right arm, and accordingly the state of his arm could not be said to be equivalent to a shoulder disarticulation or forequarter amputation where there is no shoulder function at all. The certificate referred to clause 2.3 of the Lifetime Care and Support Guidelines (the LCS Guidelines). 7. The effect of the certificate therefore was to reverse the decision of the Authority that had led the plaintiff to participate in the LCS Scheme. 8. On 10 June 2016, the insurer applied for a review of that decision of the Assessment Panel, pursuant to s 15(1) of the LCS Act. 9. On 10 November 2017, a Review Panel confirmed the decision of the Assessment Panel. In a nutshell, the Review Panel found that, because he had some function in his right arm, the plaintiff did not possess the "equivalent impairment" to amputation. Therefore confirmed the decision of the Assessment Panel. In its reasons, the Review Panel did not refer to a submission of the insurer that, in assessing the question pursuant to clause 2.3 of the LCS Guidelines of whether the plaintiff had suffered an impairment equivalent to an amputation, the Review Panel should apply the provisions of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). 10. The ultimate result therefore is that the plaintiff remains outside the LCS Scheme. 11. In a nutshell, the proceedings before me raised the question of whether or not the insurer had established that legal error, requiring correction by way of the orders sought by the insurer, was committed by the Review Panel. Submissions of Allianz 1. Although I had the benefit of written submissions prepared by senior counsel for the insurer, a degree of very helpful refinement occurred in the oral submissions. As part of that process, it was explained that the three grounds of appeal notified in the summons of the insurer filed on 8 February 2018 can be understood compendiously as a complaint of legal error having been committed by the Review Panel, including by way of it rejecting the submission of the insurer as to the asserted correct approach. In the circumstances, I proceed to summarise the oral submissions of senior counsel for the insurer. 2. As I have indicated, the underlying complaint of the insurer was that, in assessing the plaintiff for the purposes of the LCS Act, the Review Panel did not adopt the mechanisms for assessment of impairment mandated by the MAC Act. The correct approach was said to be demonstrated by the following chain of reasoning. 3. First, it is clear that the two statutes form part of the one overarching structure for the non-curial resolution of disputes regarding personal injuries caused in certain circumstances. The two Acts must be read as an integrated whole, not as separate and discrete expressions of the will of Parliament. 4. If authority is required for that proposition, the insurer submitted that it is to be found in Nominal Defendant v Adilzada [2016] NSWCA 266, in which the Court of Appeal emphasised how two schemes (MAC Act and LCS Act) are interlinked. This interlinking was said to constitute an important context for the following development of the thesis. 5. Secondly, in that context, s 5 of the LCS Act is of particular significance. It is as follows: 5 Interpretation—Motor Accidents Compensation Act 1999 Words and expressions used (but not defined) in this Act have the same meanings as in the Motor Accidents Compensation Act 1999. 1. Senior counsel submitted that the word "impairment" is not defined in the LCS Act. He also accepted that it is not explicitly defined in the MAC Act. But he submitted that the word or expression "impairment" is nevertheless captured by s 5 of the LCS Act. 2. That is because, he submitted, "impairment" has a readily discernible meaning within the MAC Act, informed by various provisions of that Act. He went on to submit that, as a result, the mechanisms within the MAC Act with regard to the ways in which impairment is to be evaluated and assessed (for example, those to be found in ss 131, 132, and 133) are thereby imported into the LCS Act. 3. In his submission, that meant that, in considering whether the plaintiff had suffered "the equivalent impairment" to an amputation of his right arm, the Review Panel fell into legal error in refusing to adopt all of the mechanisms that would need to be adopted for an assessment under the MAC Act, including many of the Motor Accidents Medical Guidelines. 4. Ancillary to that submission was the proposition that one mechanism whereby the Review Panel fell into error was by treating the question of level of functioning as equivalent to the question of the equivalent impairment. That was said to have led the Review Panel to fail to focus on the crucial concept of impairment, which leads one inevitably, via s 5 of the LCS Act, to the regime of assessment of impairment to be found in the MAC Act. 5. Finally, it was submitted that the words "or equivalent impairment", cannot sensibly referred to persons who suffer from a limb that has not been amputated, but which possesses no movement or feeling. That was said to be because, even an immobile limb incapable of sensation nevertheless provides balance, a cosmetic benefit, and a less extreme sense of reduction in bodily integrity. In short, I understood the submission to be that the conundrum encapsulated in the concept of equivalence of impairment with regard to amputation supports the proposition that the word "impairment" is used in the LCS Guidelines as a term of art that leads one back to the MAC Act. 6. In a nutshell than, the submission of senior counsel was that, in assessing whether the plaintiff had suffered an impairment equivalent to amputation for the purposes of the LCS Act, it was incumbent upon the Review Panel to adopt the procedures mandated for the assessment of impairment for the purposes of the MAC Act. It failed to do so, despite the explicit contemporaneous submission of the insurer, and that failure constitutes a legal error calling for correction. Determination 1. I do not accept the basal proposition of insurer. That is for the following reasons, set out in generally descending order of importance. 2. First, I accept that the two Acts, whilst separate, are related, and deal with the same general subject matter. But if Parliament had intended the detailed regime of assessment of impairment for the purposes of the MAC Act to apply to assessments pursuant to the LCS Act, it would be very easy for it to have said so, unmistakably and explicitly. And yet Parliament did not. 3. Secondly, assessments pursuant to the LCS Act are conducted by doctors, not lawyers. Doctors are not used to wending their way through lengthy statutes, and reflecting on the true meaning of provisions such as s 5 of the LCS Act. And yet the interpretation for which the insurer contends has a degree of legal refinement. I do not accept that Parliament intended doctors to discover, understand, and apply such refined paths to their relatively straightforward task of assessing extremely severe injuries pursuant to the LCS Act. 4. Thirdly, s 5 of the LCS Act ascribes meanings within the MAC Act to the LCS Act. It does not ascribe procedures, with regard to investigations of those meanings, contained in the MAC Act to the LCS Act. To my mind, meanings of terms and expressions (on the one hand) and methods of investigation and establishment of the subject matter captured by those terms and expressions (on the other hand) are conceptually two separate things. As I remarked to senior counsel during discussion, (on the one hand) what is meant by "an orange", and (on the other hand) the ways in which one may determine whether a piece of fruit is indeed an orange or not, are not to be elided. And yet, I respectfully consider, the submission of the insurer about the role of section 5 of the LCS Act does so. 5. Fourthly, the word "impairment" does not appear within the LCS Act, and did not appear within it as at the date when the Review Panel issued its determination. It appears merely in the LCS Guidelines. Even adopting, for the sake of argument only an expansive reading of the expression "in this Act" in s 5 of the LCS Act, that is surely significantly adverse to the thesis of the insurer. 6. Fifthly, in my opinion there is a sound basis in policy for the MAC Act setting out a detailed regime for the determination of impairment, and yet the LCS Act failing to do so. That is because the subject matter within the MAC Act is degrees of impairment. The relevant subject matter within LCS Act and its Guidelines is either severe impairment by way of spinal cord injury, brain injury, burns, and permanent blindness, or, in the case of amputation only, actual amputation or the equivalent impairment. The task pursuant to the LCS Act and Guidelines is very largely binary. In other words, assessment for the purposes of the LCS Act is a far simpler exercise than assessment for the purposes of the MAC Act. 7. In my opinion, for that reason it makes sense structurally for Parliament not to have called upon doctors making assessments under the LCS Act to go through all of the steps pertaining to assessment of impairment to be found in the MAC Act. 8. Sixthly, despite the fact that the LCS Act was enacted 12 years ago, save for the single authority to which I have referred above that was relied upon for a very general proposition, I was invited to no authority of this or any other Court that directly or indirectly supports the thesis of the insurer. 9. Seventhly, underpinning the submission of the insurer was the proposition that the Review Panel should have applied not only all of the sections about assessment of impairment to be found in the MAC Act, but also all of the guidelines and other secondary instruments "picked up" by those sections. And yet it is noteworthy that the LCS Act possesses its own lengthy and detailed Guidelines. That is a further factor that argues against the structural proposition that a doctor or doctors making an assessment pursuant to the LCS Act must not only have regard to the LCS Guidelines created pursuant to that Act, but also to an entirely separate set of guidelines created pursuant to a related but separate piece of legislation. 10. Eighthly and finally, I respectfully agree that it is something of a conundrum to for the LCS Guidelines to have spoken of an impairment equivalent to amputation. But the fact is that, in this case, consideration of whether a person who possesses a completely immobile and insensitive limb can truly be said to have suffered an impairment equivalent to amputation of that limb is in the realm of the hypothetical. That is because the plaintiff in this case indisputably possesses some, albeit, minimal function. And in any event, merely because the true meaning of that concept within the LCS Guidelines is not entirely clear does not, in my opinion, compel the structural resort to the MAC Act for which the insurer contends. 11. In short, I do not accept that in making an assessment for the purposes of the LCS Act, the Review Panel committed any legal error in failing to comply with the procedures set out in the MAC Act. 12. It follows that references in the reasons of the Review Panel to "functioning" as opposed to "impairment" are, in my opinion, neither here nor there, because the difference in terminology is only important if the fundamental thesis of the insurer is correct. 13. It also follows that I accept the joint submission of the parties at the hearing that there is no need for me to go further, and discuss the details of what the procedures pursuant to the MAC Act were, and what the outcome of the assessment would or could have been if they had been adopted by the Review Panel. That is for the simple reason that the submission of the insurer either succeeded or failed at the preliminary stage of analysis. 14. Nor, it follows, was there any legal error on the part of the Review Panel in rejecting the submission made at that stage by the insurer, and that I have rejected by way of this judgment. Conclusion 1. In short, I do not believe that, in assessing Mr Ridge for the purposes of the LCS Act, the Review Panel committed a legal error in failing to apply the provisions of the MAC Act. 2. It follows that the summons of the insurer must be dismissed. Costs 1. In a contingent discussion about costs, senior counsel for the insurer did not seek to argue that costs should not follow the event. Orders 1. In accordance with the above analysis, I make the following orders: (1) The summons of the plaintiff, Allianz Australia Insurance Ltd, is dismissed. (2) The plaintiff must pay the costs of the first defendant, Benjamin Ridge, of the proceedings before me. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2018