AAI LIMITED trading as AAMI v Patsalis [2026] NSWSC 953 | Case summary | Zoe

NSWNSWSC

AAI LIMITED trading as AAMI v Patsalis

[2026] NSWSC 953

Supreme Court of NSW|2026-08-07|Before: Harrison AsJ

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-08-07

Before

Harrison AsJ

Catchwords

ADMINISTRATIVE LAW – judicial review – Personal Injury Commission – medical assessment under Motor Accident Injuries Act 2017(NSW)

Source

Original judgment source is linked above.

Catchwords

ADMINISTRATIVE LAW – judicial review – Personal Injury Commission – medical assessment under Motor Accident Injuries Act 2017(NSW)

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: AAI LIMITED trading as AAMI v Patsalis [2026] NSWSC 953

Hearing dates: 04 December 2025

Date of orders: 07 August 2026

Decision date: 07 August 2026

Jurisdiction: Common Law

Before: Harrison AsJ

Decision: 1. The Summons dated 15 April 2025 is dismissed.
2. The plaintiff is to pay the first defendant’s costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – Personal Injury Commission – medical assessment under Motor Accident Injuries Act 2017(NSW)

Legislation Cited: Motor Accident Injuries Act 2017 (NSW), Part 3.4, ss 1.3, 4.11, 4.12, 7.17, 7.21, 7.23 7.26, Sch 2, s 2.
Personal Injury Commission Act 2020 (NSW), ss 18, 33(1)(b)
Motor Accident Guidelines, ss 6.17, 6.18, 6.21, 6.31, 6.41, 6.213

Cases Cited: Abdal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 478 Allianz Australia Insurance Limited v Bell [2025] NSWCA 187 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 Bradley v IAG t/as NRMA Insurance Limited [2020] NSWSC 792 Boyce v Allianz Australia Insurance Ltd [2018] NSWCA 22 Buestami v Allianz Australia Finance Ltd [2025] NSWSC 465 Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 Dominice v Insurance Australia Limited (2017) 81 MVR 249; [2017] NSWCA 171 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Farr v Insurance Australia Limited t/as NRMA Insurancе [2014] NSWSC 1435 Frost v Kourouche [2014] NSWCA 39 Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 Insurance Australia Limited t/as NRMA Insurance v Momand [2024] NSWSC 1529 Insurance Australia Limited t/as NRMA Insurance v Warren [2019] NSWSC 1126 Insurance Australia Limited trading as NRMA Insurance v Brown (2019) 89 MVR 508; [2019] NSWSC 1236 Lederer v Insurance Australia Limited trading as NRMA Insurance [2022] NSWSC 322 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 Mandoukos v Allianz Australia Insurance Ltd [2024] NSWCA 71 Mason v Demasi [2009] NSWCA 227 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996]185 CLR 259; HCA 6 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Oeding-Erdel v Allianz Australia Insurance Limited [2021] NSWSC 1264 QBE v Miller (2013) 67 MVR 322; [2013] NSWCA 442 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Wingfoot Australia Partners Pty Limited v Kocak (2013) 252 CLR 480; [2013] HCA 43 Zahed v IAG Limited t/as NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55 Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11

On 15 April 2025, the insurer filed a summons seeking:
An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision made by the Medical Assessor, in her capacity as a medical assessor appointed pursuant to section 33(1)(b) of the Personal Injury Commission Act, namely, the certificate and decision dated 28 October 2024, purportedly made pursuant to s 7.23 (1) of the M**AI Act (the Medical Assessor's Decision).
An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the Delegate of the President of the Commission (the Delegate), dated 16 January 2025, made purportedly pursuant to s 7.26 of the MAI Act, dismissing the plaintiff's application for review of the Medical Assessor's Decision (the Delegate's decision).
An order in the nature of mandamus, remitting the matter the subject of the Medical Assessor's Decision to the third defendant for determination by a different medical assessor and/or (with respect to the relief sought in subsection 2) for re-determination by the President pursuant to section 7.26 of the MAI Act, according to law.
The insurer relied upon 10 grounds of judicial review. Grounds 1 to 6 relate to the Medical Assessor’s decisions and grounds 7 to 10 relate to the Delegate’s decisions. So far as the Medical Assessor is concerned, these grounds of judicial review are interrelated. I shall deal with the grounds of judicial review in sequential order in this judgment.
The grounds of judicial review in relation to the Medical Assessor’s Decision are as follows:
Ground 1: The insurer had made a substantial and clearly articulated argument based on established facts. The Medical Assessor failed to respond to the substance of the insurer's argument. This was a constructive failure to exercise jurisdiction and a denial of procedural fairness. (failure to respond to a clearly articulated argument) The substance of the insurer’s argument included the following:

Ground 2: The Medical Assessor was required to provide reasons for her decision, pursuant to s 7.23(7) of the MAI Act. The Medical Assessor failed to expose her actual path of reasoning for diagnosis, findings on causation, and assessment of impairment. The failure to provide reasons that expose the actual path of reasoning on the medical question referred is an error of law on the face of the record. (failure to give reasons)
Ground 3: Pursuant to s 7.21 of the MAI Act, the assessment was required to be made in accordance with the Motor Accident Guidelines version 9.2 (the Guidelines). The Guidelines required the Medical Assessor to review and evaluate all available evidence (cll 6.17 - 6.18). The Medical Assessor failed to evaluate the evidence and failed to comply with the Guidelines in this respect. This was a constructive failure to exercise jurisdiction**.** (constructive failure to exercise jurisdiction)
Ground 4: Clause 6.41 of the Guidelines required the Medical Assessor to bring to the claimant's attention to inconsistencies between the Medical Assessor's clinical findings, and information obtained through medical records, and to give claimant an opportunity to respond to the inconsistencies, in order to ensure accuracy and procedural fairness. The Medical Assessor failed to comply with these clauses and thereby constructively failed to exercise her jurisdiction and failed to afford the insurer procedural fairness. (procedural fairness)
Ground 5: Further and separately to the statutory obligation set out in Ground 4, the Medical Assessor had a common law duty to afford procedural fairness to the parties. The duty to afford procedural fairness required the Medical Assessor to take all necessary steps to ensure a fair assessment. Having regard to the significant inconsistencies between the claimant's reporting to the Medical Assessor, and his previous reporting as recorded in the material before the Medical Assessor, there was a duty for the Medical Assessor to attempt to explore and if possible resolve the inconsistencies. The Medical Assessor failed to do this, and thereby failed to afford the insurer procedural fairness. **(**also procedural fairness)
Ground 6: The Guidelines relevantly provide that impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM), which is currently DSM-5. The Medical Assessor found that the claimant met the DSM-5 diagnosis for Post Traumatic Stress Disorder (PTSD). However, the Medical Assessor failed to address that the criteria for the diagnosis requires "actual or threatened death, serious injury..." and accepted that the criteria were satisfied on the basis of the claimant's perception of the accident rather than also considering the objective nature of the accident. Failing to properly apply the DSM-5 criteria was a constructive failure to exercise jurisdiction. **(**also constructive failure to exercise jurisdiction)
The following grounds of judicial review relate to the Delegate’s decision. If the Medical Assessor’s Decision is found to be lawful, grounds 7 and 8 immediately fall away.
Ground 7: The Delegate's decision is invalid because it relies for its validity on the statutory pre-condition of a medical assessment decision. On the basis that the decision of the Medical Assessor is void due to legal error, the decision of the Delegate is also void.
Ground 8: Before the Delegate, the insurer had submitted that the Medical Assessor had erred in a similar manner to that described above. Due to the fact that the decision was afflicted by legal error in the ways described in judicial grounds 1 to 4 in this Judgment, the Delegate erred in failing to find that those errors were present. The Delegate's decision is illogical and irrational and not based on findings or inferences or fact supported by logical grounds.
Ground 9: The Delegate exceeded his statutory function by determining the application on the basis of a view as to the substance of the grounds raised rather than applying the correct test which was whether there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
Ground 10: The Delegate asked himself the wrong question and applied the wrong test in relation to the question of whether the Medical Assessor had failed to adequately consider the material and provide sufficient reasons, failed to respond to the insurer's argument, and incorrectly applied the DSM-5 criteria for PTSD. Rather than asking whether there was reasonable cause to suspect that the assessment was incorrect in a material respect, the Delegate explained how the Medical Assessor had justified her assessment.
The insurer submitted that by reason of any or all of these grounds, the decisions of the Medical Assessor's decision and the Delegate invalid and should be set aside.

Based on [the claimant’s] history and on mental state examination, it is my opinion that he developed Major Depressive Disorder and Posttraumatic Stress Disorder (PTSD) following the subject motor accident. Although his vehicle was not significantly damaged during the subject motor accident [the claimant] stated that his towbar took the brunt of the impact thus not damaging the body of his car and he felt that he was quite shocked and disoriented and felt that it was potentially a life-threatening accident. Therefore, his perception of the accident fulfils Criterion A for a DSM-5 diagnosis of PTSD. He fulfils Criterion B by intrusion symptoms including nightmares and flashbacks. He experiences intense or prolonged psychological distress from exposure to internal or external cues that symbolise or represent an aspect of the traumatic events in that he avoids talking about the accident and recalling the accident causes him distress with marked anxiety. His condition fulfils Criterion C in that he has avoided driving and avoids the accident site. He avoids distressing memories, thoughts or feelings about the accident by avoiding talking to people about the accident. He has had negative alterations in cognitions with negative beliefs about himself, fear, anger, loss of interest in significant activities and feeling detached from others. He has not been able to experience positive emotions thus fulfilling Criterion D. He fulfils Criterion E in that he has had alterations in arousal and reactivity associated with irritable mood, anger, hypervigilance, exaggerated startle response and sleep disturbance as well as problems with concentration. The duration of disturbance has been more than one month thus fulfilling Criterion F. His condition causes clinically significant distress and impairment in social, occupational and other important areas of functioning thus fulfilling Criterion G. His condition is not attributable to the physiological effects of a substance or another medical condition.

The Medical Assessor had a duty to respond to the substance of the insurer’s argument and a failure to do so would be a constructive failure to exercise jurisdiction, and a denial of procedural fairness: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes), per Basten JA at [19]-[20]; Dranichikov per Gummow and Callinan JJ at [24] and Kirby J at [81]. It would not suffice to set out competing submissions when there is then no consideration of the substantial and clearly articulated argument: Zilic v QBE Insurance (Australia) Ltd [2025] NSWSC 11 (Zilic) at [50]-[51], [55] per McNaughten J.
In Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 (Roger v De Gelder), the Court of Appeal held that the review panel in that case had failed to respond to a substantial argument raised by the claimant.
In I**nsurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 (Keen) at [38] – [42], it was emphasised that the role of a medical assessor is quite different to the role of a Court, and that Wingfoot at [47] makes it clear that the role of the panel is not to decide disputes or make up its mind by reference to competing contentions. However, the Medical Assessor had a duty to afford procedural fairness (per Wingfoot at [47]), and the Court has many times confirmed that the duty includes a duty to respond to a substantial and clearly articulated argument based on established facts.
As noted above, that was stated unanimously by the Court of Appeal in Rodger v De Gelder (that specifically considered Wingfoot and was not said to have been decided incorrectly in Keen) and has been re-stated many times since (e.g. Oeding-Erdel v Allianz Australia Insurance Limited [2021] NSWSC 1264, and Lederer v Insurance Australia Limited trading as NRMA Insurance [2022] NSWSC 322 (Lederer)).
In Insurance Australia Limited t/as NRMA Insurance v Momand [2024] NSWSC 1529 (Momand), Price AJ referred to a number of authorities and then said at [87]:

The Medical Assessor failed to respond to the substance of the insurer’s argument. She did not engage with the substance of the argument regarding the substantial inconsistencies in reporting at all. The Medical Assessor failed to respond to the submission that the evidence showed that the claimant was reporting that the nature and cause of his impairment was related to the motor accident, for the purposes of the motor accident claim, but reporting that the nature and cause of his impairment was related to the 2012 work injury, for the purposes of his workers compensation claim.
The report of Dr Dinnen that was prepared for the workers compensation insurer, which recorded substantially different symptoms said to arise from the work injury in 2012, and assessed WPI arising from the work injury at 21%, was not even mentioned by the Medical Assessor. The claimant’s self-reporting was accepted even when fundamentally at odds with the other evidence, as outlined above. The Medical Assessor did not explain how the evidence that the claimant currently had very substantial impairment arising from the pre-existing and unrelated psychiatric condition factored into her decision-making process regarding current impairment.
To say that there were no major inconsistencies in reporting, in the face of such significant inconsistencies, was no response to the argument that was made. Even if the claimant’s pre-accident records suggested his schizophrenic condition was well managed prior to the accident (as suggested by Dr Oen), that issue went only to the extent of preexisting impairment. The Medical Assessor was required to assess the current condition (cl 6.21 of the Guidelines) including assessing the cause of the current diagnoses and impairment, before considering a deduction for pre-existing impairment (cl 6.31). The claimant had made statements and reported to doctors, in his workers compensation claim, that his pre-existing condition of schizophrenia, aggravated by his work injury and not by the motor accident, was now substantially affecting him and was a cause of major impairment. The Medical Assessor failed to deal with these issues.
The insurer had identified that the claimant reported that he had not worked and had no social life since 2012, and that this was inconsistent with his reporting in his motor accident claim. These were matters that were critical to the assessment under the Psychiatric Impairment Rating Scale in the Guidelines (specifically to three of the six classes – social and recreational activities, social functioning and adaptation). The Medical Assessor simply accepted the claimant’s self-reporting as to his pre- and post-accident functioning and did not respond to the argument regarding the inconsistencies.
In Momand, Price AJA stated at [89]-[92]:

The claimant submitted that this is in fact what the Medical Assessor did. The history she obtained accorded with contemporaneous records. In her Decision, she noted that:
In 2005 the claimant suffered acute psychosis and had 10 days psychiatric admission.
After 4 months medication he was well and worked as a handyman until 2011 when he had a relapse.
He worked for Woolworths from February to July 2012 where due to bullying he suffered an exacerbation of schizophrenia.
Since 2013 he worked as a handyman doing odd jobs such as gardening and painting and selling eggs.
He was placed on anti-psychotic medication from 2011 to 2014.
He claimed his mental state was stable and he led a "normal life" until the subject accident in 2021.
His previous motor vehicle accident in April 2013 did not result in any change in his mental state.
The claimant submitted that the history the Medical Assessor obtained is corroborated by contemporaneous records namely:
Clinical records Bankstown Medical Health Records as to the claimant’s admission in 2005 and 2011.
Clinical records of Dr Wong.
Clinical records of Dr Saker.
Report Dr Sydney Oen.
Bankstown Family Practice records Dr Chan.
Clinical records Dr Aljhuma.
The insurer’s submissions to the Medical Assessor did not ask her to reconcile conflicting records, nor form any particular view with respect to the records, but to consider and refer to the contemporaneous material in resolving the matter.
The claimant submitted that Momand involved a case where the plaintiff was diagnosed with a psychiatric condition in circumstances where there was a dispute as to the severity of the impact of the collision. Ultimately it was found that (based on the evidence of a traffic reconstruction engineer) the plaintiff's speed was much lower than what he claimed and that the Medical Assessor had disregarded this vital evidence which included evidence of damage to the vehicles, the safety features of the plaintiff's vehicle and the lack of physical injuries by the plaintiff.
While the claimant conceded that there are significant inconsistencies between the two reports of Dr Dinnen dated 21 February 2023, he submitted that the Medical Assessor based her decision on the contemporaneous medical material rather than Dr Dinnen's reports.
The Medical Assessor did consider the claimant’s prior psychiatric condition in assessing his impairment and made a deduction of 5%. Dr Dinnen in his report dated 10 April 2024 regarding the motor vehicle accident does take a history of the workplace injury at Woolworths in 2012 and that he worked after his injury at Woolworths. Dr Dinnen was fully appraised of the effects of the work injury as he had considered it in his prior report dated 23 February 2023.
What the insurer put to the Medical Assessor in its submissions was not "a substantial clearly articulated argument" relying on established facts, but rather inconsistencies in one report, namely that of Dr Dinnen in his report dated 20 October 2023. The Medical Assessor based her decision on contemporaneous medical records and the history given to her by the claimant. The Medical Assessor provided a path of reasoning which sufficiently demonstrated the route taken to coming to her finding and decision.
The Medical Assessor considered the substance of the submissions. She expressly stated that she reviewed and considered the material before her including the submissions made by the insurer.
The Medical Assessor also considered the question of the consistency of the claimant’s account. She formed the view that it was generally consistent with those reported during other psychiatric assessments. She expressly referred to the different opinions and documentation of symptoms by different psychiatrists but did not find any major inconsistencies. That finding is sufficient to have disposed of the submission based upon the argument that there was inconsistency in reporting to Dr Dinnen.
In any event the submission had no true merit. Dr Dinnen had assessed the claimant both in respect of the claimed work injury and the injury from the motor vehicle accident. He found in his report dated 23 February 2023 that the work injury was an aggravation of chronic schizophrenia. The motor vehicle accident had caused PTSD and major depressive disorder. It is the claimed inconsistent reporting to Dr Dinnen that formed the basis for the insurer's submissions.
The Medical Assessor returned to the question of the other medical opinions referred to earlier in the claimant’s submissions. The Medical Assessor discussed and considered the medical material provided to her. While she says that Dr Oen confirmed the pre-existing chronic paranoid schizophrenia was in remission from 2017 to 2021, she refers to the reports of Dr Dinnen dated 23 February 2023 and 10 April 2024. She says that the reports are related to the motor vehicle accident it is apparent that the report dated 23 February 2023 was obtained in support of the claim for the work-related injury. It is related to the motor vehicle accident in that it informs the opinion contained in the later report to the effect that the motor vehicle accident caused a psychological injury that was different to the pre-existing chronic schizophrenia. In his report of 10 April 2024 Dr Dinnen refers to the earlier report and says that the 2 reports should be read in conjunction.
The determination at [18] of the Medical Assessor's Decision refers to the various matters including that the work claim was for aggravation of schizophrenia and that there were no depressive symptoms prior to the motor vehicle accident.

The utility of the submissions in reply is to clarify issues. The claimant submitted that that the history obtained by the Medical Assessor accords with contemporaneous records. Even if some of the history taken by the Medical Assessor is consistent with some contemporaneous records, it does not address the insurer’s argument regarding the inconsistent reporting by the claimant. The Medical Assessor failed to respond to the submission that the evidence showed that the claimant was reporting that the nature and cause of his impairment was related to the motor accident, for the purposes of the motor accident claim, but simultaneously and conflictingly reporting that the nature and cause of his impairment was related to the 2012 work injury, for the purposes of his workers compensation claim.
The claimant in his submissions sets out a list of evidence that is said to be consistent with the history obtained by the Medical Assessor, but it is not clear which parts of the evidence are said to be consistent. In fact, the evidence that the claimant relies upon is inconsistent with the history obtained by the Medical Assessor in significant respects. For instance, Dr Saker recorded on 20 August 2019 that the claimant had last worked in 2011. On 3 February 2021, Dr Saker recorded that the claimant was paranoid and leaving the house much less and he was socially withdrawn. This does not support the claimant’s submission that these records are consistent with the history obtained by the Medical Assessor, noting that the claimant told the Medical Assessor that since 2013 he had worked as a handyman and selling fresh eggs and that he was trying to build up his business prior to the accident and that prior to the accident he maintained a social network. These matters pertaining to the claimant’s pre-accident functioning were critically important to the assessment of several categories of impairment in the Psychiatric Impairment Rating Scale in the Guidelines.
The inconsistencies in the two reports of Dr Dinnen were not the sole basis for the insurer’s argument. There were numerous other inconsistencies, as outlined in the insurer’s submissions, including reports to Dr Clarke, the early post-accident records of Dr Wong referring to workplace issues rather than the motor accident, the pre-accident records of Dr Saker that showed significant pre-accident symptoms, and the claimant’s own statement in his workers compensation claim.
The claimant conceded that there are “significant inconsistencies” between the two reports of Dr Dinnen but suggests that the Medical Assessor did not rely on these reports and instead based her decision on contemporaneous material. Somewhat inconsistently, the claimant also accepts that the Medical Assessor based her assessment on the history given by the claimant. That identifies the problem. The self-reporting by the claimant was inconsistent, both in between the differing versions he had given to various doctors and with the contemporaneous evidence in significant respects.
It does not suffice to set out competing submissions when there is then no consideration of or response to the substantial clearly articulated argument: Zilic at [50]-[51], [55] (McNaughten J).
The claimant submitted that the Medical Assessor lawfully disposed of the argument relating to inconsistent reporting to Dr Dinnen by finding that the claimant’s reports had been “generally consistent”. This does not respond to the substance of the argument at all, given that in one report Dr Dinnen had assessed current WPI at 21% due to the work injury but in another report assessed current WPI arising from the motor accident at 22% with no deduction for any pre-existing condition. A finding that these two reports are consistent is not only non-responsive to the argument but is incoherent (which goes to the reasons ground – Ground 2).
The Medical Assessor was required to assess the claimant’s current condition (cl 6.21 of the Guidelines) including assessing the cause of the current diagnoses and all current impairment, before considering a deduction for pre-existing impairment (cl 6.31) and if necessary subsequent impairment (cl 6.34). The process was recently described by Garling J in Buestami v Allianz Australia Finance Ltd [2025] NSWSC 465 (Buestami) at [23]-[27].
The Medical Assessor must assess all current impairment and only after that has occurred is there a consideration of whether some of that impairment must be deducted as being pre-existing or subsequent to the motor accident. It is not lawful to simply exclude part of current impairment from the assessment (for instance, if there are two conditions presenting, and only one is caused by the subject motor accident, the Medical Assessor cannot just assess one condition and disregard impairment caused by the other). An error of this kind was addressed by Garling J in Buestami as follows at [29]-[31]:

The claimant’s psychiatric condition is far from straightforward. It is complex. It was common ground between the medical specialists that the claimant had pre-existing schizophrenia that varied in severity from time to time. The 2012 incident exacerbated his schizophrenia.
I accept that when a Medical Assessor set out the documents that they have considered, it can be just a formulative list but that is not sufficient. The Medical Assessor is obliged to go further to articulate how the relevant documents were analysed. The reasoning may be brief but succinct.
The various doctors’ reports largely contained similar diagnoses. The Medical Assessor set out the documentation she reviewed, and in particular noted that that Drs Kaplan, Dinnen and Saker each diagnosed major depressive disorder and post-traumatic stress disorder as a result of the accident. The claimant’s general practitioner, Dr Aljumha also noted depressive symptoms in early 2024.
I am of the opinion that the Medical Assessor did sufficiently address and articulate how she analysed the relevant documents. She set out the inconsistencies between the medical reports as raised by the insurer. She noted that the claimant’s account was “generally consistent with those reported during other psychiatric assessments” and said “I note there are different opinions and documentation of symptoms by different psychiatrists and psychologists. However, I did not find any major inconsistencies in [the claimant’s] reporting.”
As a psychiatrist, the Medical Assessor had direct experience with note writing and the capacity, in the normal course of affairs, for different medical reports to be in variance with one another. Her primarily obligation was to make an independent determination of the claimant's medical condition.
On proper construction of her statutory duty, she was obliged to consider a clearly formulated argument. Meanwhile, she was not obliged to accept any such argument. It was open to her with the benefit of her medical knowledge and experience to reject the argument on the basis that the identified inconsistencies in the medical reports were of little import or significance. This is consistent with the view expressed by the Court of Appeal in Demasi.
The Medical Assessor acknowledged inconsistencies that she viewed as relevant. She understood the insurer’s argument. She considered those inconsistencies together with what was recorded in other psychiatric reports.
The Medical Assessor set out the claimant’s pre- and post-accident history, based on both the claimant’s reporting and medical documentation, including reports of the claimant’s treating psychiatrists from before the motor accident. The Medical Assessor noted that prior to the accident, the claimant lived a “normal life”, was able to care for himself and maintained interests and relationships. He also worked as a handyman, had chickens at home and an egg-selling business and was a full-time carer for his mother. She analysed the claimant’s reports and medical documentation after the accident.
She noted that since the accident, the claimant neglected self-care and domestic tasks and almost entirely withdrew from interests and relationships. Following the accident, he ceased all work and had to put down his chickens.
The Medical Assessor also noted that while the claimant’s history with respect to depressive symptoms prior to the accident was unclear, she said that she was of the opinion that the history does not indicate major depressive disorder prior to the accident.
The Medical Assessor’s obligation does not extend to consider every piece of evidence presented but rather in a sensible and balance way to approach the task. In my view, the Medical Assessor properly addressed the substantially and clearly articulated arguments raised by the insurer. There is no constructive failure to exercise jurisdiction. Nor was there a denial of procedural fairness.

The insurer challenged the Medical Assessor’s decision as to her findings in relation to criterion A as to whether or not the claimant satisfied criterion A on diagnosing PTSD. This submission is also repeated in judicial ground 6. I will deal with it here. The finding that is quoted in the above paragraph is a finding that she was entitled to make. It’s based on Medical Assessor’s function to form and give her own opinion on a medical question by applying her own medical experience and expertise. I make further comments on this topic in my determination of grounds 9 and 10 below.
As to causation, the Medical Assessor concluded that PTSD and major depressive disorder were caused by the accident based on his history as referred to and set out earlier in this Judgment.
As to impairment, the Medical Assessor explained that she accepted the claimant’s reporting as it was generally consistent with prior reports, as set out above.
While it is odd that Dr Dinnen’s reports in relation to the 2012 work incident and the motor vehicle accident were prepared at the same time, he did refer to the prior work incident in his motor vehicle accident reports. The Medical Assessor treated Dr Dinnen’s report as being one in a number of other psychiatric reports that she had. The Medical Assessor recorded that the history she obtained was corroborated by contemporaneous records. The Medical Assessor based her decision on the contemporaneous medical material rather than solely Dr Dinnen's reports. The Medical Assessor took into account the claimant's existing psychiatric condition in assessing his impairment and made a deduction of 5%.
It is my view that the Medical Assessor did respond to the substance of the insurer’s argument. Further, the Medical Assessor afforded the parties procedural fairness. If the insurer was of the view that it was blindsided by the reports provided by Dr Dinnen, it could have sought an adjournment to obtain further psychiatric reports. The Medical Assessor also exposed her actual path of reasoning for diagnoses, findings in causation and assessment of damages. The Medical Assessor provided proper and sufficient reasons for her decision. There was no denial of procedural fairness.
Both judicial review grounds 1 and 2 fail.

As stated by the Court of Appeal, the principal question for this Court is whether it was open to the Delegate not to be satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application: Mandoukos at [101]. The further questions are whether the Delegate failed to respond sufficiently to a clearly articulated argument and whether the Delegate failed properly to fulfil their statutory function in asking and answering the wrong question or in stepping beyond their remit by substantially considering her opinions and conclusions.
The essence of the insurer's submission is that the Delegate erred in law by not asking whether or not there was reasonable cause to suspect that the Medical Assessor's Decision was wrong in a material respect, but rather in substance satisfying himself that the Medical Assessor's Decision was correct. This is said to give rise to the error identified by McCallum JA in Oeding-Erdel at [36]. The insurer submitted that '[i]nstead of considering whether there was reasonable cause to suspect that there may be a material error in the decision by virtue of the insurer’s argument, the Delegate purported to determine whether there was, in fact, an error'.
For the reasons which follow, I do not accept this argument or the other arguments raised in grounds 9 and 10.
The gist of the claim put to the Delegate was that the Medical Assessor had failed to reconcile the inconsistencies in the claimant's medical records and failed to give them their proper weight. Reviewing the Medical Assessor's reasons, the Delegate was satisfied that the Medical Assessor had noted and understood the argument as to inconsistency.
The Delegate perceived that the Medical Assessor considered the argument as to inconsistency and that she was unpersuaded by it. The Delegate did not consider that the Medical Assessor's failure to expatiate at length about the nature of the inconsistencies and their possible import was reasonable cause to suspect that the Medical Assessor's Decision was incorrect in a material respect. The Delegate correctly identified the principle from Wu Shan Liang that administrative decisions are not to be scrutinised with excessive zeal. The Delegate did not set out the inconsistencies and form a view as to how they should be construed with respect to the claimant's current psychiatric state and its causes. Had he done so, that might have fallen into an error as identified in Oeding-Erdel. He did not do so, and the insurer's argument is not made out.
As to the argument that the Delegate incorrectly construed or applied the DSM-5, it is true that it was not for the Delegate to construe or apply the DSM-5. The Delegate is not a qualified psychiatrist. However, the Delegate did not construe or apply the DSM-5. The Delegate correctly quoted Beech-Jones J in Gonzalez v Allianz Australia Insurance Ltd [2016] NSWSC 1549 at [52] regarding the interpretation and application of the DSM-5:

AAI LIMITED trading as AAMI v Patsalis

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Extension of time to file the Summons

Background

The summons

The relevant statutory framework

The insurer’s submissions to the Medical Assessor

Dr Dinnen’s reports

Dr Dinnen – Workers Compensation Reports

Dr Dinnen – Motor Incident reports

The Medical Assessor’s Decision dated 28 October 2024

The review of the Medical Assessor’s Decision by the Delegate

Application by the insurer for the decision to be remade

The Law

Judicial review grounds 1 and 2

The insurer’s submissions (ground 1)

The claimant’s submissions (ground 1)

The insurer’s submissions in reply (ground 1)

The insurer’s submissions (ground 2)

The claimant’s submissions (ground 2)

Resolution

Failure to respond to clearly articulated argument (ground 1)

Failure to give reasons (ground 2)

Judicial review ground 3

The insurer’s submissions

The claimant’s submissions

The insurer’s submissions in reply

Resolution

Judicial review grounds 4 and 5

The insurer’s submissions

The claimant’s submissions

The insurer’s submissions in reply

Resolution

Judicial review ground 6

Judicial review grounds 9 and 10

The insurer’s submissions (ground 9)

The insurer’s submissions (ground 10)

The claimant’s submissions (grounds 9 and 10)

The insurer’s submissions in reply (ground 9 and 10)

Resolution

The Result

Costs

Orders

Parties

Legislation Cited (6)

Cases Cited (53)