What Constitutes Adequate Reasoning by a Member?
Zgouras v Australian Associated Motor Insurers Limited [2022] NSWPICPD 17
The Appellant, Katherine Zgouras, was employed by the Respondent, Australian Associated Motor Insurers Limited, as a call centre operator between 2002 and 2007.
She sustained an injury to her cervical spine in 2003 due to the nature and conditions of her employment which involved sitting at a desk for prolonged periods of time. She previously brought proceedings in the former Workers Compensation Commission and was awarded lump sum compensation in respect of 33% WPI. In March 2021 the Appellant brought further proceedings in the Personal Injury Commission, claiming injuries to her lumbar and thoracic spine also as a result of the nature and conditions of her employment with the Respondent. The Member found the thoracic spine injury was not causally related to the Appellant’s employment and made an Award in favour of the Respondent. In coming to this decision, she referred to the medical evidence not addressing the question of causation as to the thoracic spine injury. The lumbar spine injury was found to be causally related and was ultimately referred to Medical Assessor for assessment of WPI. The Appellant lodged an Appeal against the Member’s finding that no injury had been sustained to her thoracic spine.
Issues for determination
The matters for determination on Appeal were whether:
- The Member erred in law in finding that the Appellant did not suffer an injury to her thoracic spine arising out of or in the course of her employment.
- The Member failed to give any or any adequate reasoning for her determination.
- The Member failed to take into account relevant evidence insofar as the thoracic spine injury is concerned.
Decision
The Appellant was unsuccessful on each ground of Appeal.
In regard to the first ground of Appeal, the Appellant raised the fact that her written statements regarding the thoracic spine injury were unchallenged and that she was not cross-examined at the initial hearing. President Judge Phillips noted the inference arising from this submission was an attempt to import the Rules of evidence into the Personal Injury Commission which was excluded by Section 43(2) of the Personal Injury Commission Act 2020. He considered there was no error in the approach taken by the Member and stated that it was appropriate given the inadequacy of the medical opinion on the question of causation.
In regard to the Appellant’s submission that the Member had failed to give adequate reasoning for her determination, President Judge Phillips noted that Rule 78 of the Personal Injury Commission Rules 2021 applied. He also referred to the comments of Kirby J in Roncevich v Repatriation Commission [2005] HCA 40 in which it was stated at [64] that:
“Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
It was found that the Member’s reasons, although brief and succinct, readily revealed the reasoning as to why she was not satisfied with the Appellant’s case on causation with respect to the thoracic spine.
In regard to whether the Member had considered relevant evidence, it was noted that she had not referred to the evidence relied upon by the Appellant in the Findings and Reasons section of her decision. However, President Judge Phillips did not accept that an error had been made, stating that to do so would be to over-scrutinise the Member’s reasons without regard to the statutory requirement of providing brief reasons.
Implications
This case provides an overview of what constitutes adequate reasoning by a Member in determining matters in the Personal Injury Commission. Specifically, a Member is directed to provide a brief statement of reasons as to their determination. As such, provided a Member’s statement of reasoning addresses the ‘real issues’ in dispute, the fact they have provided only brief reasons for their decision will not constitute a appealable error. This case also serves as a reminder that the Personal Injury Commission is not bound by the Rules of evidence.
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