Allianz Australia Insurance Limited v Bell

Background facts and procedural history

1. Basten AJ provided a concise summary of the underlying facts and the first phases of the dispute in Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108 ("Bell") at [2] to [4]: "[2] The underlying facts, which occurred on 11 July 2018, arose when a man attempted to steal a Harley-Davidson motorcycle belonging to the plaintiff in broad daylight from a carpark where it had been temporarily parked while the plaintiff went into nearby commercial premises. The plaintiff heard the person try to start the motorcycle and ran after him. The man was unable to start the engine and was wheeling the motorcycle away. As the plaintiff closed in, the man saw him and pushed the motorcycle towards the plaintiff, so that it fell on him, with the foot peg causing a flesh wound to his leg. Another motorcycle then approached, picked up the would-be thief as a pillion passenger and turned as if to drive towards the plaintiff. The plaintiff, rightly or wrongly, treated that conduct as threatening and formed the belief that the would-be thief and his colleague were members of a motorcycle gang. The man was later apprehended by police and prosecuted. [3] A medical dispute was referred to an assessor under the Motor Accident Injuries Act 2017 (NSW), the accident having occurred after the commencement of that Act. The medical assessor, in a certificate issued on 28 February 2021, found that of the psychological injuries referred for assessment, "none was related to the motor accident". He therefore concluded that an assessment of the degree of permanent impairment was not required. [4] On 3 June 2021, the plaintiff's solicitor lodged with the Personal Injury Commission an application for review of the medical assessment certificate. Pursuant to s 7.26(5) of the Motor Accident Injuries Act the President (in practice his delegate) must make a determination as to whether there is "reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application". On 26 August 2021, the delegate to whom the application was referred, not being satisfied as to there being reasonable cause to suspect that the medical assessment was incorrect, dismissed the review application. These proceedings are by way of judicial review of that decision."
2. On 18 August 2022, Basten AJ set aside the President's decision and remitted the matter for determination according to law. His Honour concluded that there was a basis in the assessor's reasoning that should have given rise to a reasonable suspicion on the part of the delegate that the assessment made was incorrect in a material respect. His Honour concluded that the assessor had either wrongly taken it upon himself to decide that the threats and intimidation, and resulting Post-traumatic stress disorder ("PTSD"), were not part of the motor accident, or there was a failure to exercise jurisdiction because the assessor failed to carry out his statutory function and provide a whole person impairment assessment, having not determined the scope of the motor accident. Either way, there was apparent error.
3. A delegate of the President referred the matter to a review panel on 17 October 2022, being satisfied, (no doubt with the assistance of Basten AJ's analysis), that there was reasonable cause to suspect that the assessment was incorrect in a material respect.
4. The Panel met by teleconference on 8 February 2023 and determined that a further interview of Mr Bell was needed and additional documentation required. The Panel examined Mr Bell by video conference on 5 April 2023.
5. On 13 April 2023, the Panel issued a Certificate with reasons, certifying that Mr Bell's PTSD and Major Depressive Disorder were caused by the motor accident and gave rise to an assessed whole person impairment of 19%.

Relevant principles

1. The State Insurance Regulatory Authority Motor Accident Guidelines ("the Guidelines") cll 6.17 and 6.18 provide for evaluation of impairment: Evaluation of impairment 6.17 The medical assessor must evaluate the available evidence and be satisfied that any impairment: (a) is an impairment arising from an injury caused by the accident, and (b) is an impairment as defined in clause 6.9 (above) 6.18 An assessment of the degree of permanent impairment involves three stages: (a) a review and evaluation of all the available evidence including: • medical evidence (doctors', hospitals' and other health practitioners' notes, records and reports) • medico-legal reports • diagnostic findings • other relevant evidence (b) an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment (c) the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.
2. The Guidelines also provide at cll 6.40 and 6.41 for what is required of the Panel to make an assessment of consistency in relation to a claimant's clinical presentation: Consistency 6.40 The medical assessor must use the entire gamut of clinical skill and judgement in assessing whether or not the results of measurements or tests are plausible and relate to the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears not to verify that an impairment of a certain magnitude exists, the medical assessor should modify the impairment estimate accordingly, describe the modification and outline the reasons in the impairment evaluation report. 6.41 Where there are inconsistencies between the medical assessor's clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person's attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.
3. Section 7.21 of the Motor Accident Injuries Act 2017 (NSW) ("the Act") provides for assessment of the degree of permanent impairment: 7.21 Assessment of degree of permanent impairment (1) The assessment of the degree of permanent impairment of an injured person for the purposes of this Act is to be made in accordance with the Motor Accident Guidelines. The assessed degree of permanent impairment is to be expressed as a percentage. (2) Impairments that result from more than one injury arising out of the same motor accident are to be assessed together to assess the degree of permanent impairment of the injured person. (3) In assessing the degree of permanent impairment, regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury. (4) A medical assessor may decline to make an assessment of the degree of permanent impairment of an injured person until the assessor is satisfied that the impairment caused by the injury has become permanent.
4. Section 7.26(5) to (7) provides relevantly for review of a medical assessment by a review panel: 7.26 Review of medical assessment by review panel … (5) The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (5A) The panel is to be constituted by 3 persons chosen by the President as follows - (a) 2 medical assessors, (b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission. (6) The review of a medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (6A) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members. (7) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.

The Panel Certificate and processes

1. The task of the Panel was correctly stated by the Panel in its Certificate to be: "to address the question as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%".
2. In the Certificate, the Panel set out the background, the conduct of the review, (including a teleconference between the Panel members in February 2023), and the documents considered, which included the clinical records of Mr Bell's treating psychologist and psychiatrist. It was decided that it was not possible to reach a decision on the papers, and so a re-examination took place by video on 5 April 2023. A psycho-social history was noted, as well as a history of the motor accident, the symptoms and treatment following the accident, Mr Bell's current symptoms, pre-accident functioning and his current and proposed treatment, which included regular psychiatric sessions and medication. Findings on clinical examination were recorded, as well as an analysis of current functioning.
3. Specific and separate comment was made by the Panel on the question of the consistency of Mr Bell's presentation with information and observations of non-clinical activities, as required by cll 6.40 and 6.41 of the Guidelines.
4. Under the heading "Panel Deliberations", the Panel considered the DSM-5 criteria and how Mr Bell's condition corresponded to the conditions that they diagnosed. The Panel also addressed the issue of causation, which is, I interpolate, a necessary part of carrying out an assessment of whole person impairment. This is entirely different from, and separate to, any kind of analysis as to what comprised the "motor accident". It is a clinical assessment necessary for the task for which the Panel had been retained.
5. It is important that the Panel avoid any stepping into the arena of determining what is the "motor accident", as noted by Basten AJ in the 2022 decision in Bell at [12]: "That it was not part of the medical assessor's function to determine the scope of a motor accident, where that issue was controversial, was explained by the Court of Appeal in AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales), ("AAI Ltd") McColl JA stating: "If, however, in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events, and leave it to the court to determine whether or not the events constitute a 'motor accident'."" (Footnotes omitted).
6. The issue for consideration here in terms of the correctness or otherwise of the approach of the Panel could be framed more succinctly as: (i) whether the Panel made findings about causation by reference to the physical event or events as it should have, (leaving for the Court to determine whether or not the events constituted a motor accident); and (ii) in doing so, whether the Panel's reasons are adequate and the requirements of the Guidelines have been properly considered and addressed.
7. The assessment made by the Panel, (incorrectly stated in the Certificate to have been made under s 63(4) of the Motor Accidents Compensation Act 1999 (NSW), although no complaint is made about this), was that "the following injuries caused by the motor accident give rise to a permanent impairment of 19%": "major depressive disorder and post-traumatic stress disorder".
8. As highlighted in the written submissions of Mr Catsanos SC for Mr Bell, the Panel's use of the umbrella term "motor accident" in its Certificate does not imply that the Panel has made any assessment of what comprised the motor accident. The Panel has to use some point of reference for the question referred to it for clinical (as opposed to legal) assessment. The focus of the analysis needs to be on what the Panel was assessing and whether that assessment was responsive to the requirements and parameters of its statutory function.

The application for judicial review

1. The summons sets out five grounds for review that can be reduced to the following:

• Ground 1 - the Panel purported to determine the scope of the motor accident because it made a diagnosis of psychological injury caused by "the subject motor accident", rather than explaining which event or events caused the injury;
• Ground 2 - the path of reasoning was not exposed in the decision because the Panel did not "explain" what events constituted the motor accident, and whether and why they accepted Mr Bell's self-reporting, over "substantial other evidence that was inconsistent with it". Further, the reasons reveal an "internal inconsistency" between Mr Bell's previous and current reporting, yet the Panel still concluded that Mr Bell's presentation was "consistent with the documentation";
• Ground 3 - the Panel did not bring to Mr Bell's attention inconsistencies between the Panel's clinical findings and information obtained through medical records, and did not give him an opportunity to respond to the inconsistencies;
• Ground 4 - the Panel failed to ensure a fair assessment in that it did not explore and resolve inconsistencies in the material before it; and
• Ground 5 - the Panel failed to deal with the Insurer's submissions that the events that caused the psychological injury did not constitute a motor accident.

(i) Ground 1 - Failure to explain the event or events that caused the injury

1. The Insurer submitted that the Panel purported to determine the scope of the motor accident simply by stating that the psychological injury was caused by "the subject motor accident".
2. I do not agree. As submitted by Mr Catsanos, it is of course necessary to read the Certificate as a whole. The Certificate is divided into headings. The references to the "motor accident" in the Certificate is nothing more than as a general descriptor. It is not purporting to address any argument about what does or does not constitute a motor accident as a matter of law. Contextually, the Panel simply described under the appropriate heading Mr Bell's account of the physical event. In its "Deliberations" part of the Certificate, the Panel referred to Mr Bell expressing distressing memories of "the event".
3. Elsewhere in the Certificate when dealing with causation, the Panel referred to the accident being of sufficient severity to give rise to the specific psychiatric diagnoses and, in that context, explained its conclusion that the subject motor accident was the substantial cause of the psychiatric injuries.
4. These are clinical findings that are a necessary part of the Panel's function. There must be some descriptor used, otherwise any conclusion would be meaningless and not tethered to any basis for a causation conclusion to be made at all.
5. I accept the submission of Mr Catsanos that using these descriptors to explain the Panel's findings and conclusions is consistent with the direction provided by the prevailing authorities when addressing what is considered to be the causative event. The Panel was not purporting to determine the legal issues around the scope of a motor accident under the Act.
6. Clearly, the Panel proceeded on the basis that what it described as the accident was a single causative event. The forensic dissection suggested by the Insurer was neither appropriate nor even realistically possible. As soon as the Panel embarked on any kind of division of events, it would give the appearance that it was performing exactly the kind of legal evaluation the Insurer says it should not.
7. The Insurer's submissions about what Mr Bell did and did not say about what he thought about the perpetrator, and/or the consistency or otherwise of that particular aspect of the history, is a matter for determination by the ultimate factfinder. It does not bear upon the assessment of the approach taken by the Panel on the history that it received and accepted in the exercise of the Panel members' clinical judgement.
8. No jurisdictional error is disclosed.

(ii) Ground 2 - Inadequate reasons

1. The Insurer complained in its submissions that the Panel failed to expose the actual path of reasoning for its decision as required by the authorities, in particular Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot"). The Insurer complained that there is inadequacy because the Panel failed to explain which events constituted the motor accident, and in failing to do so it has not completed the task required of it. Second, the Insurer complained that the Panel failed to explain why it accepted Mr Bell's self-reporting on the day of its examination about the events surrounding the motor accident, rather than other purported descriptions of those events that the Insurer asserted were "inconsistent with the self-reporting".
2. The Insurer asserted that there was inconsistency between what Assessor Samuell reported Mr Bell told him he was worried about and what Assessor Jones reported Mr Bell told him he was worried about, as opposed to what Mr Bell said to the Panel. The Insurer complained that it was therefore not open to the Panel to conclude that Mr Bell's presentation was internally consistent and consistent with the documentation provided.
3. These arguments are misconceived. The task of the Panel was to assess the degree of permanent impairment pursuant to s 7.21 of the Act.
4. As stated by the Court in Wingfoot at [47]: "[47] The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise." (Emphasis added) (Footnotes omitted).
5. In issuing its Certificate pursuant to s 7.23(1) of the Act, the Panel was required to set out the reasons for any finding as to any matter certified in the Certificate see: Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374 at [15] to [18] per Chen J.
6. It is clear that the Panel in fact provided its reasons for the finding that Mr Bell has a 19% whole person impairment. Those reasons are clearly and expressly articulated in the "Reasons for Decision" parts of the Certificate (pages 10 to 13), explaining the determination using the Psychiatric Impairment Rating Scale.
7. The reasons of an administrative decision-maker are meant to inform and not be scrutinised in overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6.
8. The Court in Wingfoot at [55] also dealt with this issue: "[55] The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
9. I accept the submissions of Mr Catsanos to the effect that the Panel indicating what it is evaluating (in making its medical assessment) by using the terms "motor accident", "accident" and "subject motor accident" does not suggest ambiguity. The reference is clear and no further explanation is required.
10. The factual issue of whether Mr Bell's account to the Panel is in fact inconsistent with earlier accounts is a matter of controversy which is for determination in the ultimate disposition of the claim. It is not a matter for the Panel to provide a legal determination in that regard. The Insurer's submissions suggest that it is. It would have been inappropriate and beyond the scope of the Panel's remit to cross-examine Mr Bell about his account of events. It is a different concern and consideration to that dealt with in cll 6.41 of the Guidelines and is different again to considerations of causation, both of which are within the realm of clinical assessment.
11. The focus of any question about adequacy of reasons needs to be upon the path of reasons by which the Panel arrived at the opinion formed on the medical question under consideration in sufficient detail to enable a court to see whether the opinion does or does not incorporate an error of law: Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 ("Lederer") at [35] per Brereton JA.
12. Consistent with the authorities, the Panel did disclose its path of reasoning and the premise upon which it proceeded to lead to the assessment it made.
13. This ground has no merit and is dismissed.

(iii) Ground 3 - Inconsistencies - failure to comply with cll 6.41 of the Guidelines

1. The Insurer submitted that the obligation to evaluate the evidence before the Panel involved an obligation to consider certain matters, which required that the assessor intellectually engage with and evaluate that evidence (Lederer at [37]), and that the Panel failed to address perceived differences in Mr Bell's account of whether his psychiatric problems were entirely due to the stealing and collision, as opposed to "fear of bikies" or "fear of retribution". The Insurer complained that the Panel did not put these inconsistencies of recorded history to Mr Bell and give him an opportunity, as required by cl 6.41 of the Guidelines, to respond to those "inconsistencies" after bringing those "inconsistencies" to his attention.
2. That submission, (and related appeal ground), is misconceived.
3. The focus of cll 6.40 and 6.41 is upon inconsistency in clinical presentation, findings and observations, not alleged inconsistency in the history of the events recorded by others when compared with the Panel's own history taken in their consultation with Mr Bell. The reliance by the Insurer on Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171, a case dealing with differences in the clinical presentation of a claimant and whether it differed from previous clinical presentation to other doctors, underscores this misconception.
4. In any event, the Panel in the course of its assessment specifically drew to Mr Bell's attention the history said to have been provided to the other doctors in relation to the involvement of "bikies", and has recorded his response and the terms of his rejection of that. Even taking the Insurer's argument at its highest, the requirements of cl 6.41 were complied with. This ground of review fails.

(iv) Ground 4 - Failure to explore inconsistencies

1. The Insurer complained that the Panel has not complied with its common law duty to afford procedural fairness to the Insurer because it did not attempt to explore, and if possible resolve, the asserted inconsistencies in Mr Bell's "reporting" to the Panel as opposed to what is recorded in "the material before the Panel".
2. Mr Bell does not accept the allegations of inconsistency made, but as Mr Catsanos submitted, correctly, such a quasi-judicial inquiry with an adjudicated outcome would go well beyond any concept of affording procedural fairness and would in fact infringe upon what the High Court said in Wingfoot at [47] was the function of a review panel.
3. This ground is based on a misunderstanding of the Panel's function in the circumstances of this case and the question referred to it to resolve, and is dismissed.

(v) Ground 5 - Failure to deal with Insurer's submissions

1. The Insurer submitted that the Panel did not deal with its submissions that the events that caused Mr Bell's psychological injuries did not constitute a motor accident, and so comprised events either prior to, or subsequent to, the motor accident. Further, the written submissions stated that these "events" were in the nature of novus actus interveniens - obviously enough, I interpolate, a legal concept that requires legal adjudication, not medical assessment.
2. The Insurer complained that given the Panel's duty to deal with the substance of the Insurer's argument, failure to address these submissions was a constructive failure to exercise jurisdiction and a denial of procedural fairness.
3. This ground, too, is misconceived. It is underpinned by an assertion that the Panel should have, (impermissibly), determined what constituted a motor accident. To that extent, the argument is inconsistent with the Insurer's first ground for review. To make any such decision would be clearly beyond the statutory power of the Panel, and would be in contravention of clear statement of principle in AAI v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 per McColl JA, cited with approval by Basten JA in the first Bell decision at [12].
4. If this ground is a complaint that the Panel did not deal with the Insurer's submissions on causation, that argument also fails. The question is whether the decision-maker addressed the substance of the argument - "the central or critical elements of the case or claim" - not necessarily each discrete argument: Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] per Meagher JA, citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69] and [111]. The Panel clearly did deal with the substance of all of the issues raised.
5. This ground of review is also dismissed.

Orders

1. I make the following orders: 1. Summons dismissed. 2. Plaintiff to pay the first defendant's costs.

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