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[2025] NSWCA 187
respondent. Appeal dismissed. The appellant was ordered to pay the costs of the appeal: [148].
The Court of Appeal majority dismissed Allianz's challenge to a Review Panel decision that Mr Bell's psychological conditions were caused by the events surrounding the attempted theft of his motorcycle and that his WPI was 19%. The majority held that the Panel had to give Bell an opportunity to respond to the motorcycle-gang concern, but it did not have to investigate his credibility or reconcile every earlier account. The reporting inconsistency did not trigger cl 6.41 because it was not relevant to the clinical assessment. The majority also considered the Panel's reasons adequate and read them as treating the closely connected events as one causative incident. The Panel's job was to assess medical causation and impairment, not decide the legal boundaries of a motor accident. Ball JA dissented on Ground 3, reasoning that the attempted theft and the collision could be separate events and that the Panel needed to identify which caused the psychological injury.
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12 cited instruments linked from this judgment.
The appeal concerned a medical assessment under the Motor Accident Injuries Act 2017 (NSW) (MAI Act), following an incident in which John Bell was injured during an attempted theft of his motorcycle. The Court of Appeal dismissed Allianz Australia Insurance Limited’s appeal from Lonergan J’s dismissal of Allianz’s judicial review proceedings. Allianz was ordered to pay the appeal costs: [148].
The incident occurred on 11 July 2018. A man tried to steal Bell’s Harley-Davidson from a carpark. Bell pursued him. The man pushed the motorcycle towards Bell, it fell, and a foot peg caused a flesh wound to Bell’s leg. Another motorcycle arrived, picked up the would-be thief, and turned as if to drive towards Bell. Bell believed the men were members of a motorcycle gang: [44]. The physical injury to Bell’s leg was accepted by Allianz to result from an event within the MAI Act’s definition of a motor accident. The dispute concerned the psychological conditions and which events caused them: [46]-[50].
Earlier medical reports recorded Bell’s fear of motorcycle-gang retribution. Dr Hyde recorded that Bell was initially reluctant to report the incident to police because he feared revenge: [51]. Assessor Samuell recorded that Bell described fear of retribution and psychological difficulties relating to both his cut leg and fear of the person who stole his motorcycle: [53]. Later, when the Review Panel asked whether Bell thought the man was a gang member, he became angry and denied having raised concerns about motorcycle gangs: [67].
A Medical Assessor concluded that Bell’s psychological symptoms were not caused by the motor accident and did not assess WPI: [60]-[62]. After the matter returned for review, the Review Panel found that Bell had PTSD and Major Depressive Disorder, considered the accident a substantial cause of both conditions, and assessed WPI at 19%: [69]-[71]. The 19% assessment exceeded the 10% threshold identified in the judgment for damages for non-economic loss: [66].
Allianz sought judicial review on five grounds, including procedural fairness, the application of cl 6.41 of the Motor Accident Guidelines, whether the Panel performed its statutory task, the adequacy of its reasons, and whether it addressed Allianz’s argument about causation: [40]. The primary judge rejected those grounds. On appeal, the Court of Appeal majority agreed.
The Court treated the Panel’s function as medical, not adjudicative. Payne JA explained that causation is for the medical assessor or Review Panel, while whether the events causing the injury legally constitute a motor accident is for a court: [3]-[4]. Price AJA relied on the principle in Wingfoot Australia Partners Pty Ltd v Kocak: a medical panel must form its own opinion and observe procedural fairness, but does not decide a dispute by choosing between competing arguments or medical opinions: [88]-[90].
That distinction shaped the answer to Allianz’s procedural-fairness argument. Price AJA held that the Panel had to put the motorcycle-gang concern to Bell and give him an opportunity to respond. It did so: [67], [90]. But the Panel was not required to interrogate Bell, determine whether he was being dishonest, or decide which of his earlier and later accounts was true. Those tasks would have made the Panel an adjudicator of a contested factual dispute, rather than a medical assessor: [90].
Allianz also argued that the Panel should have invited further submissions once Bell denied having previously expressed concerns about motorcycle gangs. Price AJA considered that argument even though Allianz had not raised it before the primary judge. The issue was allowed to be considered because Bell did not object and the Court considered it expedient in the interests of justice: [87]. The claim nevertheless failed because the practical-injustice requirement was not met. The Panel had the earlier reports and the Medical Assessor’s decision, and it knew Allianz’s position that Bell’s fear of motorcycle gangs caused his symptoms: [94]-[95]. The inconsistency would have been obvious. Allianz did not identify how further submissions could realistically have led to a different decision: [96]-[97].
The cl 6.41 issue turned on the kind of inconsistency covered by that provision. The clause refers to inconsistencies between clinical findings and information from medical records or observations of non-clinical activities: [105]. The majority held that the clause did not impose a general obligation to resolve all inconsistencies in a person’s reporting history. The particular inconsistency concerned Bell’s reporting about motorcycle-gang fears. It was relevant to causation, but played no part in the clinical assessment of PTSD and Major Depressive Disorder: [111]. The Court therefore upheld the primary judge’s construction of cl 6.41.
On Ground 3, the majority read the Panel’s reasons fairly and as a whole. It considered that the Panel had treated the events surrounding the attempted theft and collision as a single causative event, rather than deciding the legal scope of the motor accident: [120]-[123]. The events occurred quickly, as the CCTV footage showed, and the Panel was entitled to consider them in combination when deciding medical causation: [121]-[123]. Ball JA disagreed. He considered the attempted theft and the motorcycle falling on Bell to be conceptually distinct events, and thought it reasonably arguable that only the latter fell within the statutory definition. In his view, the Panel needed to identify which event or events caused the psychological conditions: [26]-[33].
The majority also rejected the argument that the Panel’s reasons were inadequate. The Panel described the diagnoses and symptoms, noted the absence of a prior psychological condition and competing causes, and explained why it considered the accident a substantial cause: [69]-[71]. Read fairly and as a whole, the reasons disclosed the Panel’s path of reasoning sufficiently for a court to assess whether there was legal error: [134]-[137].
Finally, Allianz’s argument that the Panel failed to answer its case depended on the Panel deciding which events legally constituted a motor accident. The Court held that this was not part of the Panel’s role. Its task was to make the medical assessment, including WPI: [142]-[146].
The judgment applied, rather than replaced, the existing distinction between medical assessment and legal determination. In AAI Ltd v State Insurance Regulatory Authority (NSW), the Court of Appeal had said that where there is doubt about whether an incident falls within the statutory definition, the medical assessor should make causation findings by reference to the physical event or events and leave the statutory classification to the court: [3]-[4]. The Court in Bell treated that division of responsibility as important to the appeal.
The judgment also applied the Wingfoot description of a medical panel’s function. A panel forms its own expert opinion; it is not an arbitral or adjudicative body deciding between competing cases: [88]-[90]. The decision explains how that principle bears on a claimant’s disputed histories. The Panel must provide a fair opportunity to respond to a critical concern, as it did when it asked Bell about motorcycle-gang membership. But the Panel need not cross-examine a claimant or determine which account is credible: [90].
On procedural fairness, the judgment applies the practical-injustice requirement. It refers to Lam, Nathanson, MZAPC and LPDT in assessing whether the denied opportunity could realistically have affected the decision: [92]-[97]. The result here depended on the record before the Panel and the absence of a demonstrated realistic possibility of a different outcome, not on a rule that further submissions are never required.
For cl 6.41, the judgment reads the text in its clinical context and considers its history. Price AJA noted that the provision retained the focus on inconsistencies in clinical findings: [108]. The Court distinguished Dominice, which concerned discrepancies in clinical findings and presentation, from Bell’s reporting-history inconsistency: [109]. It also considered Saraceni, but did not adopt an extension of cl 6.41 to every inconsistency in medical histories: [110]-[111].
The judgment’s treatment of event characterisation is divided. The majority’s approach permits a Review Panel, in appropriate circumstances, to consider rapidly occurring, closely connected events together when forming its medical causation opinion: [121]-[123]. Ball JA’s dissent identifies a boundary concern: where it is reasonably arguable that one event falls outside the statutory scheme and another falls within it, a combined description may leave unresolved which event caused the injury: [27]-[33]. The disagreement is part of the judgment’s reasoning, not a separate majority rule.
The supplied judgment does not establish how later courts have applied Bell after its decision on 15 August 2025. The cases cited in the judgment are authorities considered by this Court, not evidence of subsequent treatment of Bell.
At [3], Payne JA quoted the guidance that a medical assessor should make causation findings about the physical event or events and leave the statutory question to a court. In plain English, the medical decision-maker assesses what caused the injury medically; the court decides whether the relevant event meets the Act’s legal definition.
At [90], Price AJA said the Panel had to put the motorcycle-gang concern to Bell, but did not have to interrogate him to determine whether he was dishonest or decide which version was true. In plain English, fairness required a chance to answer the critical concern, not a trial-like credibility inquiry.
At [96], Price AJA observed that the inconsistency would have been plainly obvious to the Panel and that Allianz had not explained how further submissions could have made a material difference. In plain English, identifying a procedural omission was not enough: Allianz needed to show a realistic possibility that the omission mattered to the result.
At [111], Price AJA said cl 6.41 did not extend to a reporting-history inconsistency with no relevance to the clinical assessment. In plain English, the clause is not a general mechanism for correcting every inconsistency in a claimant’s account.
At [145], Price AJA described the Panel’s task as determining the factual issue of Bell’s WPI. In plain English, the Panel assessed medical impairment; it did not decide the legal boundaries of the motor accident.
Ball JA’s contrary point at [33] was that the Panel had effectively assumed an answer to the question of which of two events caused the psychological injury. In plain English, the dissent considered that combining the events risked bypassing a causation issue the Panel needed to address.
The judgment is most directly relevant where a statutory medical assessor or review panel considers injury causation under the MAI Act and the parties dispute whether the events causing an injury fall within the statutory definition of a motor accident. It confirms the importance of distinguishing medical causation from legal classification: [3]-[4], [64].
It is also relevant where a claimant gives differing accounts to medical practitioners and later denies an earlier reported concern. The decision indicates that the panel may need to put a critical concern to the claimant, but it does not have to investigate credibility or reconcile all accounts as a court would: [67], [90]. Whether additional submissions must be invited remains sensitive to whether there is practical injustice on the particular record: [92]-[97].
For cl 6.41, the fact pattern must involve a relevant inconsistency between clinical findings and medical records or observations of non-clinical activity. Bell cautions against treating the clause as applying automatically to inconsistencies in historical reporting that do not affect the clinical assessment: [105], [108]-[111].
Where events occur rapidly and are closely connected, the majority’s reasoning permits a panel to assess them in combination for medical causation: [121]-[123]. However, Ball JA’s dissent highlights that a different analysis may be required where it is reasonably arguable that distinct events have different statutory status and may separately have caused the injury: [27]-[33]. The judgment does not eliminate that issue; it records a divided Court on its application to these facts.
The judgment was decided on 15 August 2025. The supplied text contains no later decisions applying, distinguishing, or otherwise treating Allianz Australia Insurance Limited v Bell after that date. It would therefore be inaccurate, on this source alone, to describe subsequent judicial treatment.
The judgment itself considered earlier authorities. It applied Wingfoot to the Panel’s function and reasons, relied on AAI Ltd for the division between medical causation and legal classification, and distinguished the clinical inconsistency issue in Dominice: [88]-[90], [109]. It also considered Amos and Susak in explaining that a review panel is not required to test a claimant’s credibility: [89]-[90]. Those authorities are part of Bell’s reasoning, not later treatment of Bell.
The majority and dissent also provide different analytical routes for future consideration of event characterisation. The majority’s treatment is the Court’s result on Ground 3, but Ball JA’s dissent identifies a possible difficulty where separate events may have different statutory status: [26]-[34]. The supplied judgment alone cannot show how a later court has resolved that question.
First, the judgment leaves room for debate about when connected physical events should be treated as one causative event for medical assessment. The majority regarded the rapid sequence in this case as capable of being considered together: [121]-[123]. Ball JA considered the attempted theft and collision reasonably capable of being treated as distinct: [30]-[33]. The judgment does not give a general test for deciding when connected events must be analysed separately.
Second, the judgment does not exhaustively define the circumstances in which cl 6.41 applies to psychological injury. Price AJA expressly allowed that there may be some cases where the clause applies to a clinical assessment of psychological injury: [111]. The decision instead resolves the narrower point that this reporting inconsistency had no relevance to the clinical assessment.
Third, the practical-injustice analysis was tied to the material already before the Panel and Allianz’s failure to explain how further submissions could have changed the outcome: [94]-[97]. The judgment does not establish that an invitation for further submissions is unnecessary whenever prior records are available. The significance of the information, the parties’ awareness of the issue, and the potential effect of submissions remain relevant to the reasoning used here.
Fourth, the decision distinguishes a medical panel’s role from the court or Commission’s role in determining legal entitlement. It does not decide any later court’s resolution of the underlying statutory question about whether the events causing Bell’s psychological injuries fell within the MAI Act. Payne JA expressly identifies that legal question as one for the court: [4]. Ball JA also describes the possibility of Allianz raising the statutory issue in later proceedings, while questioning how the Panel’s certificate would operate if the events were ultimately treated separately: [31].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Allianz Australia Insurance Limited v Bell [2025] NSWCA 187
Hearing dates: 6 June 2025
Date of orders: 15 August 2025
Decision date: 15 August 2025
Before: Payne JA at [1];
Ball JA at [25];
Price AJA at [35]
Decision: (1) Appeal dismissed.
(2) Appellant to pay the costs of the appeal.
Catchwords: ADMINISTRATIVE LAW – Appeals – judicial review – decision of review panel – motor vehicle accident – where respondent injured during attempted theft of motorcycle – psychological injury – whether primary judge erred in finding procedural fairness afforded to appellant – no practical injustice – whether primary judge erred in finding cl 6.41 of the Motor Accident Guidelines did not apply – where appellant asserted inconsistencies in respondent’s reporting history – whether primary judge erred in finding review panel performed its statutory function – single causative event – whether primary judge erred in finding review panel exposed actual path of reasoning – whether primary judge erred in finding review panel responded to substantial clearly articulated argument
Legislation Cited: Motor Accident Injuries Act 2017 (NSW), ss 1.4, 1.6, 1.9, 4.1, 4.2, 4.3, 4.11, 4.12, 7.17, 7.21, 7.23, 7.26, 9.1, 10.2, Sch 2 cl 2
Motor Accidents Compensation Act 1999 (NSW), ss 44, 63
Personal Injury Commission Act 2020 (NSW), ss 6, 18
State Insurance and Care Governance Act 2015 (NSW)
Supreme Court Act 1970 (NSW), ss 69, 101
Cases Cited: AAI Limited t/as GIO v Amos [2024] NSWCA 65; (2024) 107 MVR 210
AAI Ltd v State Insurance Regulatory Authority (NSW) [2016] NSWCA 368; (2016) 79 MVR 57
Allianz Australia Insurance Limited t/as Allianz v Susak [2025] NSWCA 91
Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351
Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108; (2022) 101 MVR 187
Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Della Bruna v Health Care Complaints Commission [2025] NSWCA 105
Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; (2017) 81 MVR 249
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045; (2020) 93 MVR 433
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lederer v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 322; (2022) 99 MVR 29
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119
Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1
Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (5th ed, 2013, American Psychiatric Association)
Motor Accidents Authority, Permanent Impairment Guidelines (1 October 2007), cl 1.43
New South Wales Government Gazette, No 90, 13 July 2007
State Insurance Regulatory Authority, Motor Accident Guidelines (version 9.1), cll 6.7, 6.17, 6.18, 6.40, 6.41
State Insurance Regulatory Authority, Motor Accident Permanent Impairment Guidelines (version 1), cl 1.41
Category: Principal judgment
Parties: Allianz Australia Insurance Limited (Appellant)
John Bell (First Respondent)
Wayne Mason, Gerard Chew and Paul Friend as a Review Panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (Second Respondent) (submitting appearance)
President of the Personal Injury Commission of New South Wales (Third Respondent) (submitting appearance)
Representation: Counsel:
J Gumbert with K Doherty (Appellant)
I Davidson SC with D Adhikary (First Respondent)
Solicitors:
Sparke Helmore Lawyers (Appellant)
Barwick Boitano Lawyers (First Respondent)
Crown Solicitor’s Office (Second and Third Respondents)
File Number(s): 2024/439345
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
On 11 July 2018, the first respondent, Mr John Bell, was injured in a motor accident which occurred during the attempted theft of his Harley-Davidson motorcycle by a person who he believed at that time was a member of an outlawed motorcycle gang.
Mr Bell claimed against the appellant, Allianz Australia Insurance Limited, for personal injury benefits under the Motor Accident Injuries Act 2017 (NSW) (“MAI Act”), in relation to the physical injury to his right leg and the psychological injuries of post-traumatic stress disorder (“PTSD”) and Major Depressive Disorder he sustained during the motor accident.
A dispute arose between Mr Bell and Allianz relating to the psychological injury and the exact events which caused that injury, including whether any of those events constituted a motor accident under the MAI Act.
The dispute was referred for medical assessment and the medical assessor assessed that none of Mr Bell’s psychological injuries were related to the motor accident. Mr Bell’s application for a review of the medical assessor’s assessment was dismissed by the Delegate of the President (“the Delegate”) of the Personal Injury Commission of New South Wales (“PIC”). Mr Bell subsequently commenced judicial review proceedings of the Delegate’s decision. On 18 August 2022, Basten AJ set aside the Delegate’s decision and remitted the matter back to the President of the PIC for redetermination.
The dispute was referred to the Review Panel of the PIC who assessed Mr Bell’s Whole Person Impairment (“WPI”) from the psychological injuries caused by the motor accident to be 19%, which entitled him to statutory benefits and damages for non-economic loss under the MAI Act.
Allianz sought judicial review of the Review Panel’s decision. The primary judge, Lonergan J, rejected Allianz’s five grounds of review and dismissed the proceedings. Allianz appeals to this Court raising five grounds of appeal.
The Court held (Price AJA, Payne JA agreeing with additional observations, Ball JA dissenting in relation to Ground 3), dismissing the appeal with costs:
As to ground 1
(Price AJA, Payne JA and Ball JA agreeing):
*O’*Brien v Komesaroff (1982) 150 CLR 31; [1982] HCA 33; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33; Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349, cited.
Kioa v West (1985) 159 CLR 550; [1985] HCA 81; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39; Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765; AAI Limited t/as GIO v Amos [2024] NSWCA 65; (2024) 107 MVR 210; Allianz Australia Insurance Limited t/as Allianz v Susak [2025] NSWCA 91, considered.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6; Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26, considered.
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, cited.
As to ground 2
(Price AJA, Payne JA and Ball JA agreeing):
Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; (2017) 81 MVR 249; Insurance v Saraceni [2020] NSWSC 1045; (2020) 93 MVR 433; Lederer v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 322; (2022) 99 MVR 29, considered.
As to ground 3
(Price AJA, Payne JA agreeing):
Wingfoot Australia Partners Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6; AAI Ltd v State Insurance Regulatory Authority (NSW) [2016] NSWCA 368; (2016) 79 MVR 57, considered.
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 23; Della Bruna v Health Care Complaints Commission [2025] NSWCA 105, cited.
(Ball JA dissenting):
AAI Ltd v State Insurance Regulatory Authority (NSW) [2016] NSWCA 368; (2016) 79 MVR 57, cited.
As to ground 4
(Price AJA, Payne JA and Ball JA agreeing):
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1, cited.
As to ground 5
(Price AJA, Payne JA and Ball JA agreeing):
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; AAI Ltd v State Insurance Regulatory Authority (NSW) [2016] NSWCA 368; (2016) 79 MVR 57; Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765, cited.
PAYNE JA: I have read the judgment of Price AJA in draft and I agree with the orders proposed and with his Honour’s reasons. These additional observations are not intended to be inconsistent with his Honour’s reasons.
This case involves events which occurred in 2018. It is common ground that as a result of those events the present respondent, Mr Bell, suffers from Post Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder. The ultimate issue which divides the parties is whether a “motor accident” within the meaning s 1.4(1) of the Motor Accident Injuries Act 2017 (NSW) was a cause of those conditions.
In AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368, this Court explained that:
[161] 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)
Accordingly, for the purposes of the scheme of motor accident compensation in NSW, causation is a matter for the medical assessor and Review Panel, but the question of whether or not the events which caused a relevant injury constitute a “motor accident”, as defined, is a matter for the court.
A medical assessment certificate was issued by a medical assessor on 28 February 2021. The assessor found that the respondent’s injury resulted from the perceived threats to the respondent’s safety and the feeling of intimidation. The assessor continued:
I am uncertain whether this constitutes part of a motor vehicle accident, or even a motor vehicle accident.
The respondent sought a review of that decision. On 26 August 2021, a delegate of the President of the Personal Injury Commission to whom the application was referred, determined that he was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect and dismissed the review application.
Judicial review proceedings were brought in the Supreme Court. Basten AJ set aside the decision of the delegate of the President of the Personal Injury Commission and remitted the matter for re-consideration: Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108; (2022) 101 MVR 187.
Upon remittal, a delegate of the President of the Personal Injury Commission determined that there was reasonable cause to suspect that the medical assessment was incorrect and referred the matter to a Review Panel. On 13 April 2023, the Review Panel certified that Mr Bell’s PTSD and Major Depressive Disorder were caused by the following events and assessed his Whole Person Impairment (“WPI”) as being 19%. The underlying events were aptly summarised by Basten AJ in Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108:
[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.
The present appellant, Allianz Australia Insurance Limited, sought judicial review of the Review Panel’s decision on the basis of jurisdictional error and/or error of law on the face of the record. On 29 October 2024, the summons seeking judicial review was dismissed by the primary judge, Lonergan J: Allianz Australia Limited v Bell [2024] NSWSC 1351. The appeal to this Court essentially repeated each of the complaints made to the primary judge and for the most part ignored the decision of the primary judge.
The appellant submitted that the events so described as causing Mr Bell’s injuries consisted of distinct events rather than being a single causative event. It was argued that the events should be analysed as, on the one hand, the collision whereby the motorcycle fell on the respondent causing a flesh wound to his leg (which was accepted to be a “motor accident” as defined), and on the other, three separate events, being:
(1) a person’s attempt to steal the respondent’s motorcycle;
(2) surveillance of the respondent’s actions prior to the attempted stealing; and
(3) fears of retaliation for reporting the incident to the police.
The Appellant’s case was that the psychological symptoms were caused by the stealing of the motorcycle and the fear of retribution from reporting the theft to the police, that these were distinct events to the motor accident and in the nature of a novus actus interveniens, and that the stealing of the bike occurred independently from the collision and would have occurred irrespective of the collision, and therefore a factual causation was not established.
The critical issue, from the appellant’s point of view, was thus whether it should have been concluded by the Review Panel that the respondent’s PTSD and Major Depressive Disorder were not caused by the physical event of the motorcycle falling on the respondent and that those injuries were caused by separable and separate physical events described in the appellant’s submissions as “stealing of the motorcycle and the fear of retribution from reporting the theft”.
I do not accept that the Review Panel was required to adopt the appellant’s characterisation of the events as being separable and separate, lest they fall into jurisdictional error or commit an error of law on the face of the record. Much less was the primary judge required to adopt the appellant’s characterisation of the events. The Review Panel was required to make findings about causation by reference to a relevant physical event or events and leave it to the court to determine whether or not those events constituted a “motor accident”.
As to the content of those physical event or events in the present case, Basten AJ explained in the earlier iteration of this case:
[11] … If it remained open (as the assessor assumed it did) that the threats and intimidation formed part of a single incident involving the use or operation of a motor vehicle, then it was necessary to assess the resulting whole person impairment. It was only if the threats and intimidation did not form part of a motor accident that no assessment of whole person impairment was required. Accordingly, at least on the face of the reasons, if the assessor had not determined the scope of the motor accident the assessor erred by not making that assessment. (Emphasis added)
The key question remitted by Basten AJ to the President of the Personal Injury Commission (and the Review Panel) was whether the threats and intimidation identified in his Honour’s description of the relevant events formed part of a single incident involving the use or operation of a motor vehicle and, if so*,* what assessment should be made of the resulting WPI.
The Review Panel who determined this issue here clearly found that the threats and intimidation formed part of a single causative event. The Review Panel found that the respondent’s PTSD and Major Depressive Disorder were “caused by the motor accident”.
The following injuries caused by the motor accident give rise to permanent impairment of 19% which is greater than 10%:
(1) Major Depressive Disorder
(2) Post Traumatic Stress Disorder
The motor accident, which was recorded on CCTV footage, consisted of the attempted theft of the claimant’s motorcycle from outside a motorcycle workshop. Mr Bell pursued the thief on foot as he was attempting to jump start the motorcycle. The thief pushed the motorcycle towards Mr Bell and fled. In the process of attempting to maintain it in an upright position Mr Bell suffered an injury to his right leg and lower back. His leg wound was sutured at RPAH [Royal Prince Alfred Hospital]. He then attended his general practitioner Dr Oreb who diagnosed a horse shoe flap scar measuring 7 cm x 7 cm, local nerve damage, post-traumatic mechanical derangement of lumbar spine and post-traumatic stress disorder. Dr Oreb commenced the antidepressant escitalopram 10 mg.
He was referred to treating psychiatrist Dr Gordon Hyde who diagnosed both post-traumatic stress disorder and a moderate to severe major depressive disorder in April 2019. He noted flashbacks, nightmares, low mood and inability to ride his motorcycle because of fear. He changed the antidepressant to vortioxetine initially 5 mg and recommended an increase to 15 mg and then 20 mg. He also recommended referral to a psychologist for CBT [Cognitive Behaviour Therapy] treatment.
…
On 11 July 2018 Mr Bell had ridden his motorcycle to the local workshop to visit friends. He parked his motorcycle in the driveway of the workshop but could not see it from inside. He said he was there for about 30 minutes when he heard someone trying to jump start his motorcycle and he went out to have a look. He said he saw a bloke on the bike which was rolling and he was trying to clutch start it as he was going around the corner. He chased and caught up with him around the corner. He said as he got close he threw the bike at him hitting him in the leg. Mr Bell said he fell awkwardly over the top of the motorcycle. He said he felt a sharp pain in his leg and pain in his back as he tried to prevent the motorcycle from going over. He said he was slumped across the bike and then got back to his feet and tried to right the motorcycle. He said he looked to see where the man was going; another motorcycle came around the corner, picked him up and they rode off. He said he asked two bystanders to get the number plate but they did not.
Mr Bell said the man was wearing pants and a jumper. He was directly asked if he thought the man was a member of a motorcycle gang. Mr Bell became angry at the suggestion and said that was an invention of “you people”, referring to medical assessors. He said he had never indicated any concerns about motorcycle gangs. He said he pushed the bike back to the corner and went into the workshop. He lifted the leg of his trousers and saw blood coming out of his leg, rode the motorcycle home and called an ambulance. He was transported to Royal Prince Alfred Hospital.
The Panel conducted an examination and concluded Mr Bell suffered from both a severe major depressive disorder and an additional post-traumatic stress disorder. The panel noted that the major depressive disorder is more significant in terms of impairment than the post-traumatic stress disorder.
Me Bell [sic] meets DSM-5 criteria for major depressive disorder because he has depressed mood most of the day nearly every day, he has markedly diminished interest and pleasure in almost all activities nearly every day, he has difficulty with sleep, there is psychomotor retardation, he reports loss of energy and a sense of hopelessness, he described diminished ability to think and concentrate and there were recurrent thoughts of death. These symptoms cause impairment in social and occupational functioning and they are not attributable to a substance or another medical condition.
He meets DSM-5 criteria for post-traumatic stress disorder in that he was seriously injured in a traumatic incident, he has recurrent involuntary distressing memories of the event and experiences distressing dreams. He described avoidance behaviour. There were negative alterations in cognition is a mood. He described alterations in arousal and reactivity. The duration has been more than 1 month and the condition is not attributable to a substance or another condition.
The panel considered the issue of causation. It was noted there was no psychological condition prior to the subject motor accident. Following the motor accident there was the gradual onset of depression resulting in inability to work. There was also the onset of symptoms consistent with post-traumatic stress disorder. The panel considered the accident was of sufficient severity to give rise to the diagnosed conditions. There were no competing causes for the development of these conditions. The panel was satisfied the subject motor accident was the substantial cause of both major depressive disorder and post-traumatic stress disorder.
The panel noted there were no pre-existing or subsequent conditions for which apportionment was necessary. Whole person impairment was calculated at 19% and no allowance was made for treatment effect.
These conclusions are different to the conclusion reached by Assessor Jones because the panel concluded the psychiatric conditions were caused by the subject motor accident.
[27] 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. (Emphasis added)
I agree with her Honour’s conclusion. Read fairly and as a whole, as the Review Panel’s reasons must be, I am comfortably satisfied that the Panel proceeded on the basis that the accident, which encompassed the stealing of the bike and the collision, was a “single causative event”.
The Review Panel was not required to reason that each of the alleged elements of the one incident were separable and that a separate determination of causation needed to be made for each element identified by the insurer. The Review Panel’s clinical determination was that the respondent met the DSM-5 criteria for PTSD in that he was seriously injured by reason of a single traumatic incident. The insurer’s submission requires a path of reasoning which the Review Panel was not bound to follow and which plainly it did not follow. In Wingfoot Australia Partners Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, the High Court explained the functions of a Review Panel:
[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. (Footnotes omitted)
In the present case, the Review Panel was not required to decide a dispute or to make up its mind by reference to competing contentions. It was required to make a clinical determination about whether Mr Bell’s PTSD and Major Depressive Disorder were caused by the events it described. This it did. That clinical determination of the Review Panel was that the accident, which encompassed the stealing of the motorcycle and the collision, was a single causative event. No error has been shown in the primary judge’s characterisation of the Review Panel’s decision as being that “what it described as the accident was a single causative event”.
The appeal should be dismissed.
BALL JA: I have had the considerable advantage of reading in draft the judgment of Price AJA. I gratefully adopt his Honour’s description of the facts and relevant legislation as well as the abbreviations used by his Honour. I accept for the reasons his Honour gives that many of the arguments raised by the grounds of appeal must be rejected. However, I cannot agree with his Honour’s conclusions in relation to the argument most clearly raised by Ground 3.
In this case it was and is Allianz’s contention that the incident in question consisted of two events. One was the attempted theft of Mr Bell’s motorcycle by a person whom Mr Bell believed, at the time, was a member of an outlawed motorcycle gang. The other was the motorcycle falling on Mr Bell’s leg when it was pushed towards him by the thief and Mr Bell attempted unsuccessfully to maintain it in an upright position. That characterisation of the events was and is disputed by Mr Bell. Allianz contends that the first event did not fall within the scope of s 1.9(1) of the MAI Act or the definition of “motor accident” in s 1.4 of the Act, although it quite properly conceded that the second event did. Allianz also contends that Mr Bell’s psychological injuries were caused by the first event, but not by the second.
A medical assessor and a review panel performing their functions under the MAI Act have no jurisdiction to determine whether death or injury is a result of and is caused by an event falling within the scope of s 1.9(1) of the MAI Act where that is an issue between the parties. It must follow that neither has jurisdiction to determine a dispute about whether a particular incident involves two events, one only of which is said to fall within the scope of s 1.9(1). Nor generally do either of them have jurisdiction to determine a medical dispute concerning an injury that is not a result of or is not caused by an event set out in s 1.9(1): see Sch 2 cl 2(a) and s 7.17 of the MAI Act. On the other hand, they have exclusive jurisdiction to determine a medical dispute concerning an injury that is. So much seems to be common ground.
What, then, is a medical assessor or a review panel to do if they are confronted with a case such as the present one where it is said that there are two relevant events, only one of which falls within s 1.9(1) and where there is a dispute about what injuries were caused by which event?
(a) Order that the certificate and decision dated 13 April 2023 issued by the second respondent be set aside; (b) Remit the matter the subject of the second respondent’s decision to the third respondent for determination according to law.
Order that the first respondent pay the appellant’s costs in this Court and the Court below.
PRICE AJA: These proceedings arise as the appellant, Allianz Australia Insurance Limited trading as Allianz (“Allianz”), seeks an order to set aside the decision of Lonergan J (“the primary judge”) in Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351 (“PJ or Primary Judgment”).
By summons filed on 13 July 2023, Allianz brought proceedings for judicial review of a decision of the second respondent, the Review Panel of the Personal Injury Commission of New South Wales (“Review Panel”) dated 13 April 2023, which found that the first respondent, Mr John Bell’s, motor accident on 11 July 2018 was the cause of his psychological injuries being post-traumatic stress disorder (“PTSD”) and Major Depressive Disorder.
The Review Panel considered that those injuries gave rise to a permanent impairment and issued a Review Panel Certificate (“RPC”) under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”), which assessed Mr Bell’s Whole Person Impairment (“WPI”) to be 19%. As the primary judge correctly explained at PJ[19], the Review Panel’s reference to the MAC Act is in error and the RPC should have been issued pursuant to s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (“the MAI Act”).
Allianz’s five grounds of review were dismissed by the primary judge. Her Honour found that no jurisdictional error or error of law on the face of the record had been established.
The Review Panel and the third respondent, the President of the Personal Injury Commission of New South Wales (“the PIC”), have filed submitting appearances.
“1 The primary judge erred in finding that the [Review Panel] afforded procedural fairness to [Allianz], in circumstances where the factual basis and scope of the medical dispute assessed by the [Review Panel] was materially different to the medical dispute that had been referred by the parties.
2 The primary judge erred in finding that clause 6.41 of the Motor Accident Guidelines did not apply to the inconsistencies between the [Review Panel’s] clinical findings and the information obtained through medical records, and in finding that if the clause did apply then the [Review Panel] had complied with it.
3 The primary judge erred in finding that the [Review Panel] performed its statutory function in accordance with AAI v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368, which required the [Review Panel] to make findings about causation by reference to the physical event or events and to leave it to the court to determine whether or not the events constitute a motor accident.
4 The primary judge erred in finding that the [Review Panel] exposed its actual path of reasoning by which the [Review Panel] arrived at the opinion it formed on the medical question referred to it.
5 The primary judge erred in finding that the [Review Panel] responded to the substantial and clearly articulated argument made by [Allianz] as to the events that had caused [Mr Bell’s] psychological injury.”
It was common ground that leave to appeal is not required, given that the value of Mr Bell’s claim exceeds the threshold of $100,000: s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW).
As has often been emphasised, this Court is a court of error, Allianz must persuade this Court that the primary judge was in error in dismissing the summons. The appropriate standard of appellate review is the correctness standard and this requires an evaluative judgment for which “there can only be one right answer”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [35]-[50] (Gageler J), [154] (Edelman J); See, Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [14]-[15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).
For the reasons set out below, the appeal should be dismissed.
“The underlying facts, which occurred on 11 July 2018, arose when a man attempted to steal a Harley-Davidson motorcycle belonging to [Mr Bell] in broad daylight from a carpark where it had been temporarily parked while [Mr Bell] went into nearby commercial premises. [Mr Bell] 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 [Mr Bell] closed in, the man saw him and pushed the motorcycle towards [Mr Bell], 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 [Mr Bell]. [Mr Bell], 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.”
Mr Bell made a claim against Allianz, the compulsory third party insurer of the vehicle at fault in the accident, for statutory benefits and damages under the MAI Act.
Mr Bell’s claim included physical injury to his right leg and psychological injury. Allianz has accepted that the collision between the motorcycle and Mr Bell’s leg was an event which constituted a motor accident within the scope and definition of the MAI Act.
However, Allianz contended that Mr Bell’s psychological injury was not the result of the use of, or operation of the motor vehicle in either the driving collision, vehicle running out of control or a dangerous situation caused by the driving. A dispute arose between Mr Bell and Allianz relating to the psychological injury and the exact events which caused that injury, including whether any of those events constituted a motor accident under the MAI Act.
It was Allianz’s case that Mr Bell’s psychological symptoms were caused by the stealing of the motorcycle and the fear of retribution from reporting the theft to police, that these were distinct events to the motor accident in the nature of a “novus actus interveniens”. In particular, the stealing of the motorcycle occurred independently from the collision and would have occurred irrespective of the collision. Therefore, it was submitted that factual causation was not established in the present case.
Allianz referred to the scope of an insurer’s liability to indemnify Mr Bell being subject to the limitations set out in s 1.9 of the MAI Act which provides:
“1.9 General restrictions on application of Act
(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”
“… [Mr Bell] stated that both men looked like the members of the outlawed motorcycle club.
[Mr Bell] was taken to the [Royal Prince Alfred] Hospital by an ambulance and had lower limb surgery. [Mr Bell] was initially reluctant to report incident to the Police, due to fear of revenge from members of motorcycle club, however the incident was subsequently reported to Police and the perpetrator of the crime was charged with the offence.” (emphasis added)
Dr Hyde diagnosed Mr Bell as suffering from PTSD and “Major depressive disorder moderate to severe without psychotic features”.
On 28 May 2019, Mr Bell was examined by an Assessor, Dr Doron Samuell (“Assessor Samuell”), with respect to a dispute about whether the psychological injury was a “minor injury” under ss 1.6 and Sch 2, cl 2(e) of the MAI Act. In Assessor Samuell’s report dated 11 June 2019, he recorded that:
“[Mr Bell] said the incident ‘freaked me out’ … [h]e said that he has subsequently been afraid of retribution by bikie gangs … [h]e said that he began to have psychological difficulties immediately. He said that this was in relation to his cut leg and the fear of the person who stole his motorbike.” (emphasis added)
In a certificate issued on 11 June 2019, Assessor Samuell diagnosed Mr Bell as suffering from PTSD by reference to the diagnostic criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). Although not expressly mentioned, it is apparent that Assessor Samuell was satisfied that Mr Bell met Criterion A of DSM-5. Criterion A listed in DSM-5 for PTSD identifies a non-exclusive range of potential events capable of triggering PTSD including “severe motor vehicle accidents”.
On 1 October 2019, a proper officer of the State Insurance Regulatory Authority (“SIRA”) constituted under the State Insurance and Care Governance Act 2015 (NSW), dismissed Mr Bell’s application that the dispute be referred to a review panel under the predecessor provision of s 7.26 of the MAI Act, prior to its amendment effective 1 March 2021: ss 7.26(2), 7.26(5) of the MAI Act.
On 6 December 2019, Dr Ben Teoh, a consultant psychiatrist, examined Mr Bell and opined that he was “anxious and worried about his safety in public places”. In his report dated 10 December 2019, Dr Teoh assessed Mr Bell’s WPI in relation to his psychological injuries to be 13%. Allianz did not accept Dr Teoh’s assessment of WPI.
The dispute was referred for review to a Medical Assessor, Matthew Jones (“the Medical Assessor”), who assessed Mr Bell on 21 January 2021 and 18 February 2021. Relevantly, the PIC was established on 1 March 2021 by s 6 of the Personal Injury Commission Act 2020 (NSW) (“the PIC Act”), which is one day following the date when the Medical Assessor issued his certificate on 28 February 2021.
The Medical Assessor reported that he had asked Mr Bell:
“… what mental, emotional or psychological symptoms he experienced from the time of the accident and he said initially he was very fearful when he saw the bike getting stolen and he was made even more scared when he saw ‘the bikie’.” (emphasis in original)
In response to the Medical Assessor’s question about whether Mr Bell had PTSD features such as re-experiencing phenomenon, Mr Bell said that he “sees [the accident a lot] replaying in his head … [h]e sees the bikies and … is always ‘looking out to see if someone is going to get [him]’” (emphasis in original).
The Medical Assessor accepted that Mr Bell has “significant psychiatric symptomatology”, whether that be “Chronic [PTSD] or even Generalised Anxiety Disorder”, which were not pre-existent and had been “triggered by an incident or incidents”. The Medical Assessor stated that:
“… the primary cause would have been Mr Bell feeling in fear of his safety, intimidated and threatened. In the narrative this appears to have revolved around two persons of interest, presumed to be related to motorcycle bikie gangs, at least by Mr Bell. I am uncertain whether this constitutes part of a motor vehicle accident, or even a motor vehicle accident.”
“It does not appear to be life-threatening or of sufficient magnitude to constitute Criterion A [DSM-5] for a diagnosis of [PTSD] …
…
If, in this case, what appears on the [CCTV] constitutes the motor vehicle accident, then this was not the cause of Mr Bell’s ongoing psychiatric disorder.”
The Medical Assessor concluded that Mr Bell’s “Chronic [PTSD] (or even Generalised Anxiety Disorder as a differential diagnosis)” were not caused by the motor accident. He issued a certificate on 28 February 2021 under s 7.23(1) of the MAI Act, which stated that none of the injuries referred to him for assessment were related to the motor accident and an assessment of WPI was not required.
On 3 June 2021, Mr Bell applied for a review of the Medical Assessor’s assessment pursuant to s 7.26 of the MAI Act. However, on 26 August 2021, the Delegate of the President of the PIC (“the Delegate”) was not satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect: s 7.26(5) of the MAI Act; s 63 of the MAC Act. Mr Bell’s application for review of the Medical Assessor’s assessment was dismissed and not referred to a review panel.
Mr Bell brought proceedings for judicial review of the Delegate’s decision pursuant to s 69 of the Supreme Court Act in the Supreme Court of New South Wales. On 18 August 2022, Basten AJ set aside the Delegate’s decision and remitted the matter to the President of the PIC for redetermination according to law: Bell No 1. His Honour made the following observations at [12]-[13] of Bell No 1 citing with approval McColl JA’s passage in AAI Ltd v State Insurance Regulatory Authority (NSW) [2016] NSWCA 368; (2016) 79 MVR 57 at [161] (Macfarlan and Simpson JJA agreeing) (“AAI Ltd”):
“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 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’.’
Whether the issue was to be determined by a court or by a claims assessor under the separate process provided for in s 7.36 [MAI Act], as a precondition to the commencement of court proceedings (absent an exemption certificate), the case states a legal proposition that the issue is not, understandably, one for a medical assessor.” (footnotes omitted)
On 13 April 2023, the Review Panel constituted under s 7.26(5A) of the MAI Act, assessed Mr Bell’s WPI resulting from the injuries caused by the accident to be 19%. The Review Panel revoked the Medical Assessor’s earlier certificate and issued a new certificate under s 63 of the MAC Act, which had the effect of entitling Mr Bell to damages for non-economic loss: ss 7.23, 7.26(7) of the MAI Act. An assessment of 19% is greater than the threshold limit of 10% to be entitled to damages for non-economic loss pursuant to s 4.11 of the MAI Act.
Mr Bell had been re-examined by the Review Panel via video conference on 5 April 2023. In its reasons, the Review Panel stated that Mr Bell:
“… was directly asked if he thought the man was a member of a motorcycle gang. Mr Bell became angry at the suggestion and said that was an invention of ‘you people’, referring to medical assessors. He said he had never indicated any concerns about motorcycle gangs.” (emphasis added)
“Mr Bell’s presentation was internally consistent and consistent with the documentation provided.”
The Review Panel found that Mr Bell suffered from “both a severe major depressive disorder and an additional [PTSD]”, which “meets [the] DSM-5 criteria for [PTSD] in that he was seriously injured in a traumatic incident”.
As to causation, the Review Panel stated that:
“The [Review Panel] considered the issue of causation. It was noted there was no psychological condition prior to the subject motor accident. Following the motor accident there was the gradual onset of depression resulting in inability to work. There was also the onset of symptoms consistent with [PTSD]. The [Review Panel] considered the accident was of sufficient severity to give rise to the diagnosed conditions. There were no competing causes for the development of these conditions. The panel was satisfied the subject motor accident was the substantial cause of both major depressive disorder and [PTSD].
…
These conclusions are different to the conclusion reached by [the Medical Assessor] because the [Review Panel] concluded the psychiatric conditions were caused by the subject motor accident.”
“… The Review Panel found that the accident WAS a cause of the following claimed injuries:
Major Depressive Disorder
[PTSD] …” (emphasis in original)
“The summons sets out five grounds for review that can be reduced to the following:
Ground 1 – the [Review 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 [Review 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 [Review Panel] still concluded that Mr Bell’s presentation was ‘consistent with the documentation’;
Ground 3 – the [Review Panel] did not bring to Mr Bell’s attention inconsistencies between the [Review 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 [Review 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 [Review Panel] failed to deal with [Allianz’s] submissions that the events that caused the psychological injury did not constitute a motor accident.”
“Clearly, the [Review Panel] proceeded on the basis that what it described as the accident was a single causative event. The forensic dissection suggested by [Allianz] was neither appropriate nor even realistically possible. As soon as the [Review Panel] embarked on any kind of division of events, it would give the appearance that it was performing exactly the kind of legal evaluation [Allianz] says it should not.”
The primary judge found at PJ[28] that the consistency or otherwise of Mr Bell’s history was a matter for determination by the ultimate factfinder and did not bear “upon the assessment of the approach taken by the [Review Panel] on the history that it received and accepted in the exercise of the [Review Panel] members’ clinical judgement”. Her Honour concluded that no jurisdictional error was disclosed.
In addressing Ground 2, the primary judge rejected Allianz’s complaint of inadequacy of reasons because the Review Panel had failed to explain which events constituted the motor accident. Her Honour found that it was clear the Review Panel in fact had provided its reasons for finding that Mr Bell’s WPI was 19%.
The primary judge considered that the Review Panel by using the terms “motor accident”, “accident” and “subject motor accident”, did not suggest any ambiguity. Her Honour found at PJ[36] that the reference is clear and no further explanation was required. Her Honour further stated at PJ[39]:
“The factual issue of whether Mr Bell’s account to the [Review 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 [Review Panel] to provide a legal determination in that regard. [Allianz’s] submissions suggest that it is. It would have been inappropriate and beyond the scope of the [Review 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 [Motor Accident Guidelines] and is different again to considerations of causation, both of which are within the realm of clinical assessment.”
The primary judge also rejected Allianz’s contention that since there were notable inconsistencies between the reports made by Mr Bell to Assessor Samuell, the Medical Assessor and the Review Panel, it was for that reason not open to the Review Panel to conclude that Mr Bell’s presentation was internally consistent and consistent with the documentation provided. Her Honour said those arguments were misconceived. Her Honour said at PJ[32]-[33] that the task of the Review Panel was to assess the degree of permanent impairment pursuant to s 7.21 of the MAI Act citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (“Wingfoot”).
As to Ground 3, the primary judge found that Allianz’s submission that the Review Panel did not put the inconsistencies of recorded history to Mr Bell and provide him with an opportunity to respond to those “inconsistencies” after having brought them to his attention as required under cl 6.41 of the Motor Accident Guidelines issued by SIRA under s 10.2 of the MAI Act (version 9.1, effective from 1 April 2023 to 10 November 2023) (“Motor Accident Guidelines”), was misconceived. Her Honour said at PJ[45]:
“The focus of cll 6.40 and 6.41 [Motor Accident Guidelines] 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 [Review Panel’s] own history taken in their consultation with Mr Bell. The reliance by [Allianz] 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.” (emphasis in original)
The primary judge said that “in any event” the Review Panel had during its assessment specifically drawn to Mr Bell’s attention the history said to have been provided to the other doctors in relation to the involvement of “bikies” and had recorded his rejection in response of that. Her Honour further said at PJ[46] that “[e]ven taking [Allianz’s] argument at its highest, the requirements of cl 6.41 [Motor Accident Guidelines] were complied with”.
As to Ground 4, the primary judge considered that this ground was based on Allianz’s misunderstanding of the Review Panel’s function. Her Honour referred to Allianz’s complaint that the Review Panel had not complied with its common law duty to afford procedural fairness to Allianz because “it did not attempt to explore, and if possible, resolve the asserted inconsistencies in Mr Bell’s reporting” to the Review Panel, and stated at PJ[48]:
“Mr Bell does not accept the allegations of inconsistency made, but as [Mr Bell’s senior counsel] 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.”
“This ground, too, is misconceived. It is underpinned by an assertion that the [Review Panel] should have, (impermissibly), determined what constituted a motor accident. To that extent, the argument is inconsistent with [Allianz’s] first ground for review. To make any such decision would be clearly beyond the statutory power of the [Review Panel], and would be in contravention of clear statement of principle in [AAI Ltd] per McColl JA, cited with approval by Basten JA in the first [Bell No 1] decision at [12].
If this ground is a complaint that the [Review Panel] did not deal with [Allianz’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 [Review Panel] clearly did deal with the substance of all of the issues raised.”
Allianz’s principal complaint centres upon Mr Bell’s reporting to the Review Panel during which “he said he had never indicated any concerns about motorcycle gangs” (see [67] above). In this Court, Allianz submitted that in view of the significant differences in Mr Bell’s reporting of which Allianz was unaware, to avoid practical injustice, the Review Panel at a minimum was required to explore the inconsistencies in Mr Bell’s evidence (which is further raised in Ground 2) and to invite further submissions from the parties concerning that materially different history. Allianz submitted that by not being afforded an opportunity to be heard on this issue, there was a denial of procedural fairness as the plurality of the High Court stated in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ) (“Nathanson”).
Allianz further submitted that this was not a case where it was “perfectly clear” what Mr Bell was contending as his earlier versions of evidence were materially different to his presentation and evidence before the Review Panel. Allianz referred to the principles and requirements of procedural fairness summarised by Leeming JA in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]-[42] (Beazley P and Basten JA agreeing) (“Frost”), and the scope of the duty to afford procedural fairness by a review panel which was considered by Adamson JA in AAI Limited t*/as* GIO v Amos [2024] NSWCA 65; (2024) 107 MVR 210 at [67]-[68] (Kirk JA and Basten AJA agreeing) (“Amos”).
In response to Ground 1, Mr Bell submitted that the Review Panel was tasked with resolving the dispute; it was not required to resolve any purported difference in the reporting history provided by Mr Bell nor was it necessary to embark upon an exploration to ascertain which version of events relevant to issues of liability or indemnity were reliable.
Mr Bell contended that such a requirement on the Review Panel would be inconsistent with the specific statutory function it holds and its specific jurisdiction. Mr Bell relied on the formulation by Leeming JA in Frost at [39]-[40], which considered that the standard required of a statutory body such as the Review Panel when conducting an assessment is consistent with the requirements of procedural fairness as expressed by the High Court in Wingfoot at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ). Contrary to Allianz’s submissions, Mr Bell argued that there was no support for a greater obligation on the Review Panel to afford procedural fairness in a non-curial medical assessment, noting that the Review Panel had all the material before it and issued a certificate with its reasons. Furthermore, that the Review Panel’s assessment should not be taken as being synonymous with curial proceedings.
Mr Bell submitted that the resolution of the dispute as to the degree of WPI by a medical assessor or a review panel does no more than to open the gateway for the award of damages for non-economic loss: s 4.12 of the MAI Act. This assessment does not resolve all the issues pertaining to entitlement, which remains to be determined by a court or members of the PIC. Mr Bell relied upon the observations of Giles JA in Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [58] (Tobias JA and Handley AJA agreeing) (“Mills”) and ss 4.1-4.3 of the MAI Act. Relevantly, Giles JA in Mills considered that a review panel’s statutory function by issuing a certificate was to establish whether the WPI threshold required for an award of damages had been met. Mr Bell submitted on this basis that the assessment particularly did not resolve all the issues regarding entitlement to damages for non-economic loss such as in the present case where there is a question in respect of s 1.9 of the MAI Act.
Allianz did not raise before the primary judge that as a matter of procedural fairness, the Review Panel was required to invite submissions from the parties concerning Mr Bell’s materially different reporting history. Allianz’s argument in Ground 4 of the summons before the primary judge was confined to the complaint that the Review Panel had not attempted to explore and if possible, resolve the asserted inconsistencies in Mr Bell’s reporting, which her Honour rejected. As a general rule, a party will be refused permission to rely on a point not raised at the hearing below: Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) (“Bird”). However, as the plurality observed in Bird, that rule “is not absolute”, and as there was no objection by Mr Bell to this new issue being raised for the first time on appeal, accepting that it concerns an important question of law “it is expedient in the interests of justice” that it be decided by this Court: O*’*Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); [1982] HCA 33; Coulton v Holcombe (1986) 162 CLR 1 at 7-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33.
In rejecting Allianz’s argument that the Review Panel was obliged as a matter of procedural fairness to explore the inconsistencies in Mr Bell’s reporting to the Review Panel, the primary judge at PJ[48] referred to the High Court’s oft-quoted statement of principle which considered the requirements of procedural fairness in Wingfoot at [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.” (footnote omitted)
“The [MAI Act] provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: Wingfoot at [47].”
The obligation to accord procedural fairness by the Review Panel extended to putting to Mr Bell his concerns about the man being “a member of the motorcycle gang”, which was a critical issue and providing him with an opportunity to respond: Kioa v West (1985) 159 CLR 550 at 587 (Mason J); [1985] HCA 81 (“Kioa”); Frost at [32], [35]; Amos at [55]. However, the Review Panel was not obliged to put to Mr Bell the various histories that he had given about his symptoms. It is important to emphasise that the Review Panel is not a court and “does not resolve justiciable controversies constituted by the parties competing claims”: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [39] (Leeming JA, Basten JA and Simpson AJA agreeing) (“Keen”). The Review Panel was not required to interrogate Mr Bell to ascertain whether he was dishonestly denying any concerns about motorcycle gangs, nor was it required to ask him further questions with the view of determining which version of events was to be accepted: Amos at [61]; Susak at [78].
In my view, the primary judge did not err in rejecting Allianz’s complaint of a denial of procedural fairness.
The point not taken before the primary judge by Allianz contends that when the Review Panel became aware of Mr Bell’s denial of having indicated concerns about motorcycle gangs, it should have brought this matter to the parties’ attention and invited submissions on the issue. Allianz’s complaint is of a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ) (“Lam”).
Allianz submitted that there has been a denial of procedural fairness as the plurality stated in Nathanson at [33] (Kiefel CJ, Keane and Gleeson JJ):
“There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of ‘reasonable conjecture’ is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive ‘story’ of the opposing party.” (footnotes omitted)
The Review Panel was aware of Mr Bell’s reports made to Dr Hyde, Assessor Samuell and the Medical Assessor of his concerns about motorcycle gangs. Further, the Review Panel had before it the decision of the Medical Assessor that noted the primary cause of Mr Bell’s PTSD was related to his fear of motorcycle gangs. All of that was disclosed in the Review Panel’s reasons under the heading “Evidence considered”.
Furthermore, it was clear to the Review Panel that Allianz was contending in its submissions that Mr Bell’s psychological symptoms were caused by that fear and did not result from the use or operation of the motorcycle.
It would have been plainly obvious to the members of the Review Panel that Mr Bell’s denial was inconsistent with his prior reporting. It is difficult to see how inviting Allianz to make further submissions could have made a material difference to the Review Panel’s decision. Allianz did not explain how if it was given the opportunity to make further submissions, there was a realistic possibility that a different decision could have been made but for the denial of procedural fairness: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]-[3], [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [85]-[86] (Gordon and Steward JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).
No practical injustice has been demonstrated as to give rise to a denial of procedural fairness: Lam at [37] (Gleeson CJ). Accordingly, I would reject Ground 1 of the appeal.
As to Ground 2, Allianz submitted that the Review Panel was required to conduct the assessment of the degree of permanent impairment under s 7.21 of the MAI Act, which is to be made in accordance with the Motor Accident Guidelines. Allianz noted that there was specific guidance as to the evaluation of impairment provided under cll 6.17-6.18 of the Motor Accident Guidelines, which required the Review Panel to review and evaluate all the available evidence before it. Allianz cited the observations of Brereton JA in Lederer v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 322; (2022) 99 MVR 29 at [37] (“Lederer”) and the reasoning of Simpson JA in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; (2017) 81 MVR 249 at [61], [70] (“Dominice”). Allianz further referred to Walton J’s observations in Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045; (2020) 93 MVR 433 at [114]-[115] (“Saraceni”).
Allianz contended that having regard to the reasoning of Simpson JA in Dominice, it was insufficient compliance with cl 6.41 of the Motor Accident Guidelines for the Review Panel to only merely refer to the existence of an inconsistency. Allianz argued that something more was required in the circumstances of this case to justify compliance. Especially in the face of a presentation that was inconsistent with medical records, the Review Panel was required to adequately explore or explain the reasoning by which it had reached its conclusion. Allianz pointed out that the inconsistency related to a central element of the dispute between the parties, which was precisely what specific event or events had actually caused Mr Bell’s psychological injury that the Review Panel ultimately diagnosed.
Further, it was Allianz’s view that the Review Panel did not attempt to explore or engage Mr Bell about the inconsistencies between histories. Allianz submitted that the Review Panel failed to comply with the Motor Accident Guidelines and thereby constructively failed to exercise its jurisdiction and as a result there had been a denial of procedural fairness.
Allianz contended that a narrow application of cl 6.41 of the Motor Accident Guidelines was not appropriate in psychological injury cases where the “objective evidence” is substantially limited compared to a physical assessment.
The assessment of WPI is to be made in accordance with the Motor Accident Guidelines and is required to be assessed as a percentage: s 7.21(1) of the MAI Act. The Motor Accident Guidelines (version 9.1) will be referred to as this was the version in force at the time of the Review Panel’s assessment and relied upon by the parties.
Clauses 6.17 and 6.18 of the Motor Accident Guidelines provide:
“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 …
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 [American Medical Association, Guides to the Evaluation of Permanent Impairment (4th ed, third printing, 1995)] 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.”
“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.”
The reference in Allianz’s submissions to the observations of Brereton JA in Lederer at [37], that cl 1.17, the predecessor to cl 6.17 of the Motor Accident Guidelines, “mandates that an assessor must evaluate the available evidence” appears to be made in the context of its argument about the primary judge’s construction of cl 6.41.
Allianz’s complaint is that the primary judge (at PJ[45]) in dealing with Ground 3 of the summons, confined the obligation imposed on the Review Panel under cl 6.41 to inconsistency:
“… in clinical presentation, findings and observations, not alleged inconsistency in the history of the events recorded by others when compared with the [Review Panel’s] own history taken in their consultation with Mr Bell.” (emphasis in original)
Clause 6.41 in its terms refers to “inconsistencies between the medical assessor’s clinical findings”. The clause is identical to cl 1.43 of the former Motor Accidents Authority “Guidelines for the assessment of the degree of permanent impairment of an injured person” dated 1 October 2007 and issued under s 44(1)(c) of the MAC Act (published in the New South Wales Government Gazette, No 90, 13 July 2007, at 4581). The absence of any change in cl 6.41 suggests that the focus remains on inconsistencies in “clinical findings”. This is hardly surprising as the Review Panel’s task is to apply its expertise to the medical assessment before it.
The dispute in Dominice was whether the claimant had suffered an injury to her shoulders attributable to her motor accident. In Dominice, Simpson JA at [61] (with whom Basten JA and Emmett AJA agreed with additional reasons) considered that cl 1.43 “offers a guard against the drawing, unfairly, of conclusions about inconsistencies detected in a claimant’s presentation”. Her Honour found that the medical assessor “needed to investigate the discrepancies between Ms Dominice’s presentation to Dr Kenna 10 months earlier and her presentation to him, as well as the inconsistencies he noted in her presentation to him”. The inconsistencies in Dominice were of clinical findings and not in prior reporting history.
In Saraceni, Walton J at [114], appears to have been of the view that cl 1.41 of the Motor Accident Guidelines which applied at the time of Mr Saraceni’s accident and is in the same terms as cll 1.43 and 6.41, guards “against the unfairness of conduct (relating to inconsistencies in medical records or histories)”.
There may be some cases where cl 6.41 applies to a clinical assessment of a psychological injury, however, there is nothing in the Motor Accident Guidelines which supports an extension of the obligation under cl 6.41 to an inconsistency in a reporting history that has no relevance to the clinical assessment. The inconsistency in Mr Bell’s reporting did not play any part in the clinical assessment of PTSD and Major Depressive Disorder. The inconsistency in reporting was solely relevant to the issue of causation. I do not detect any error in the primary judge’s construction of cl 6.41.
As no error has been established, I would reject Ground 2 of the appeal.
Allianz submitted that the issue of what constituted the scope of the motor accident was not only unclear but was highly controversial. Allianz referred to the observations of Basten AJ in Bell No 1 at [12]-[13] citing with approval McColl JA’s reasoning in AAI Ltd at [161], to emphasise that the Review Panel was required to make findings about causation by reference to the physical event or events, and leave it to the court or the PIC to determine whether or not those events constituted a “motor accident”. Allianz contended that the Review Panel instead purported to determine the scope of the motor accident by making a diagnosis of the psychological injury caused by “the subject motor accident”, rather than explaining which event or events had resulted in the injury, so that the court or PIC could determine if any of those events constituted a motor accident within the scope of the MAI Act.
Allianz argued contrary to the finding by the primary judge at PJ[27], that the “accident” was a “single causative event”, it was apparent the Review Panel did not expressly indicate that and there was nothing in its reasoning permitting that inference to be drawn by her Honour. In oral submissions, Allianz’s counsel, Ms Gumbert, submitted that the following three physical events were not part of the motor accident, being the stealing of the bike; the fear that followed because of the perception of the person who had stolen the bike and that the person who had picked up the thief “were part of an outlaw bikie gang, and there would be retribution for reporting it to police”. [1] Ms Gumbert submitted that the Review Panel had effectively bundled them into the description of the motor accident. In doing so, the Review Panel did not explain which of the specific event or events was the one that is the cause of Mr Bell’s psychological injury. [2]
Mr Bell submitted that the Review Panel made findings about causation by reference to the physical event or events and correctly left it to the court or PIC to determine whether or not the events constituted a motor accident. In support of that contention, Mr Bell relied on McColl JA’s observations in AAI Ltd at [159]-[163] (Macfarlan and Simpson JJA agreeing). Mr Bell contended that the Review Panel’s reference to “the subject motor accident” was clearly a reference to what is recorded underneath “… [h]istory of the motor accident” and not, as has been suggested by Allianz, an overstepping of the mark. Mr Bell contended that use of these terms did no more than signify the physical event or events upon which the Review Panel formed its conclusions. Mr Bell further submitted that the primary judge was correct in reaching the conclusion that the Review Panel considered the motor accident as a “single causative event” and its findings disclose no error in rejecting Allianz’s submissions.
Mr Bell submitted that in response to Allianz’s contention of parsing and analysing the motor accident into three separate events, the primary judge’s remarks at PJ[27]-[28] (see [73]-[74] above) are of particular significance, which considered the dissection of events was neither appropriate nor realistic and is outside the function of the Review Panel.
Both parties relied on what was said by McColl JA in AAI Ltd at [161], which was cited by Basten AJ in Bell No 1 at [12] and is quoted at [64] above.
As the primary judge observed at PJ[36] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6 (“Liang”), that the reasons of the Review Panel are “meant to inform and not to be scrutinised in over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. Furthermore, there should be a degree of tolerance for looseness in the language of the Review Panel, unhappy phrasing of the Review Panel’s thoughts or verbal slips: Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [76]-[77] (Bell P, Ward JA agreeing).
More recently, Bell CJ and Kirk JA in Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 said at [16]:
“The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making due allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.”
In its reasons, the Review Panel made reference to Basten AJ’s judgment in Bell No 1. Reading the Review Panel’s reasons, fairly and as a whole, and not minutely and finely with an eye attuned to the perception of error, it is reasonable to infer that the members of the Review Panel did not disregard Basten AJ’s judgment and did not determine the scope of the motor accident.
There will be cases where a Review Panel is unable to attribute the cause of an injury to a particular physical event or events. This may be so when there is a combination of events that occur rapidly and a person suffers a psychological injury.
The CCTV footage reveals how quickly the events surrounding the attempted theft of Mr Bell’s motorcycle took place. It is hardly surprising that the Review Panel did not determine that the pushing of the motorcycle towards Mr Bell by the thief so that it fell on him, with the foot peg causing a flesh wound, had no role to play in causing Mr Bell’s psychological injury. The Review Panel was entitled to consider all of the events in combination and determine that those events caused Mr Bell’s psychological injury.
I agree with the primary judge at PJ[23]-[24], that the references to the “motor accident” in the Review Panel’s reasons were “nothing more than a general descriptor” and the Review Panel proceeded on the basis of a single causative event.
I would reject Ground 3 of the appeal.
Allianz submitted that the principles as to the standard to be met in discharging a duty to give reasons and their operation in relation to s 7.23(7) of the MAI Act were not correctly applied by the Review Panel. Allianz referred to the High Court’s statement of principle in Wingfoot at [55], which explained the standard of reasons required to be set out by the Review Panel.
Allianz advanced three arguments in support of its contention. It was first argued that the Review Panel had failed to explain which events constituted the “motor accident” causing Mr Bell’s psychological injury. Especially as the events were disputed, in these circumstances, it was insufficient for the Review Panel to merely refer to the motor accident as a general descriptor. Secondly, the Review Panel failed to explain on what basis and why they accepted Mr Bell’s self-reporting during the examination, when it was clear he had in fact given inconsistent evidence to the other doctors. Thirdly, the Review Panel’s reasons were subject to internal inconsistency as they set out the inconsistency in Mr Bell’s reporting but stated there was no inconsistency (see [68] above).
Allianz submitted that a statement of reasons is inadequate if it states only a conclusion with no reasons. Allianz further submitted that the Review Panel’s reasons are silent in critical respects and cannot be filled by necessary inference referring to the reasoning of Leeming JA in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6] (Meagher JA agreeing) (“Zahed”).
Mr Bell submitted that the Review Panel’s obligation to provide reasons only existed in respect of matters it was statutorily obliged to undertake such as to resolve medical disputes and adequate reasons were provided for the conclusions it formed relying on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [62]-[69] (McHugh, Gummow and Hayne JJ). Mr Bell contended that the Review Panel had complied with the standard of reasons required and was consistent with the principles described by the High Court in Wingfoot at [55].
Mr Bell argued that the Review Panel was not required to decide the dispute or to choose between the competing arguments as to arbitrate or adjudicate upon the correctness of the competing contentions or medical opinions, its function was to give its own medical opinion on the medical question referred by applying its own experience and expertise: Wingfoot at [47]. Mr Bell further submitted that it was evident the Review Panel set out the reasons for its findings in respect of the matters it was obligated to undertake.
As to the challenges of internal consistency, Mr Bell pointed out that the remarks pertaining to consistency were regarding clinical presentation and not the controversy that existed between the parties regarding s 1.9 of the MAI Act.
There was a deal of repetition in Allianz’s submissions and much of their complaints in this ground of appeal have been dealt with.
There is an assumption by Allianz that the Review Panel accepted Mr Bell’s self-reporting during the examination and a complaint that the Review Panel failed to explain why the members accepted that report. It does not necessarily follow from the Review Panel’s conclusion that all of the events in combination caused the psychological injury, the Review Panel accepted what they were told by Mr Bell.
The collision of the motorcycle with Mr Bell’s leg did not have to be the sole cause of Mr Bell’s psychological injuries “as long as it is a contributing cause which is more than negligible”, which is the subject of cl 6.7 of the Motor Accident Guidelines.
In any event, the Review Panel was neither required to choose between the competing arguments of the parties nor explain how it resolved the inconsistencies in Mr Bell’s reporting in its reasons. The Review Panel was obliged to meet the standard required as expressed by the High Court in Wingfoot at [55], to “explain the 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”.
Having considered the Review Panel’s reasons, read fairly and as a whole, I am satisfied that the Review Panel adequately disclosed its reason for the decision that the accident was a cause of Mr Bell’s psychological injuries. There is no critical gap in the reasoning to be filled by necessary inference: Zahed at [6], [8].
The primary judge correctly found at PJ[41] that the Review Panel had explained its path of reasoning in sufficient detail to enable a court to see whether the opinion did or did not involve an error of law and met the standard required by Wingfoot.
Allianz’s complaint of internal inconsistency fails when the Review Panel’s reasons are read fairly and as a whole. The Review Panel’s comments on consistency plainly related to Mr Bell’s clinical presentation which “was internally consistent and consistent with the documentation provided”.
I would reject Ground 4 of the appeal.
Allianz submitted that the Review Panel did not respond to the substance of their argument advanced as it failed to identify the specific event or events that caused Mr Bell’s psychological injury and whether they constituted the events prior or subsequent (in the nature of a novus actus interveniens) to the motor accident. Allianz contended that the Review Panel failed to deal with the substance of their argument by not taking into consideration its “substantial clearly articulated argument”, and by not stating its reasons in a way that enabled identification of which event or events caused Mr Bell’s injuries.
Allianz further submitted that the Review Panel’s failure “to respond to a substantial, clearly articulated argument relying upon established facts”, can amount to both a constructive failure to exercise jurisdiction and a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ, with whom Hayne J agreed) (“Dranichnikov”); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [63] (Black CJ, French and Selway JJ).
Allianz’s complaint is that the Review Panel failed to respond to “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov at [24]. Two arguments were raised in support of this submission. The first argument, that the Review Panel failed to respond by not identifying the specific event or events that caused Mr Bell’s psychological injury has been considered and rejected.
The second argument is that the Review Panel failed to respond by not determining whether the events that caused Mr Bell’s psychological injury constituted events prior or subsequently (in the nature of a novus actus interveniens) to the motor accident.
The primary judge at PJ[52] correctly rejected this submission as misconceived, because it was “underpinned by an assertion that the [Review Panel] should have, (impermissibly), determined what constituted a motor accident”.
It is regrettable that Allianz repeated this argument on appeal which was plainly unpersuasive and at odds with its submissions concerning the legal principles arising in AAI Ltd and Bell No 1. The Review Panel is not a court and no part of its function was to adjudicate the dispute by determining the scope of the motor accident. The Review Panel’s role was to determine a “quintessentially factual issue” being Mr Bell’s assessment of WPI: Keen at [40].
I would reject Ground 5 of the appeal.
No submission was made to the contrary that costs should follow the event.
Accordingly, I propose the following orders:
Appeal dismissed.
Appellant to pay the costs of the appeal.
**********
Tcpt, 6 June 2025, p 8(4-10).
Tcpt, 6 June 2025, p 11(27-30).
Allianz Australia Insurance Limited
Bell [2025] NSWCA 187
(2024) 107 MVR 210
(2016) 79 MVR 57
(2022) 101 MVR 187
(2024) 98 ALJR 1349
(1993) 43 FCR 280
(1986) 162 CLR 1
(2017) 81 MVR 249
(2003) 77 ALJR 1088
(2014) 86 NSWLR 214
(2020) 93 MVR 433
(2021) 399 ALR 765
(1985) 159 CLR 550
(2022) 99 MVR 29
(2024) 280 CLR 321
(2018) 264 CLR 541
(1996) 185 CLR 259
(2001) 206 CLR 323
(2024) 98 ALJR 1119
(2010) 78 NSWLR 125
(2021) 273 CLR 506
(2004) 144 FCR 1
(2022) 276 CLR 80
(2019) 100 NSWLR 578
(1982) 150 CLR 310
(2003) 214 CLR 1
(1979) 142 CLR 531
(2013) 252 CLR 480
(2016) 75 MVR 1
(1982) 150 CLR 31
(2013) 212 FCR 99
Appeal dismissed. The appellant was ordered to pay the costs of the appeal: [148].
The answer to that question consistently with the decision of this Court in AAI Ltd and accepted by Basten AJ in Bell No 1 is that they should “make findings about causation by reference to the physical event or events” and leave it to the Court (or Commission) to determine whether there were one or two events and which (if any) fall within s 1.9(1). The Review Panel did not do that. It did not seek to draw a distinction between the two events identified by Allianz. Instead, it referred to the two events compendiously as “the accident” or “the motor accident”. Nor did the Review Panel seek to identify which injuries were caused by the event Allianz accepted fell within s 1.9(1) and the event it contended did not. In doing so, the Review Panel failed to carry out its statutory task.
As I understand it, the response that the primary judge and Price AJA make to the point made in the previous paragraph is that properly analysed, the two events identified by Allianz were so closely related in space and time that they must be treated as a single event, which is properly regarded as an event falling within s 1.9(1).
I cannot accept that answer. In my opinion, it involves a departure from the principles stated in AAI Ltd and is difficult to reconcile with the procedures set out in the MAI Act for resolving disputes. The principles stated in AAI Ltd apply where there is “doubt about whether an incident falls within the statutory definition” (my emphasis). But here, the effect of the decision is that any doubt is resolved on the current application for judicial review against Allianz. As a consequence of the Review Panel’s decision, Mr Bell is entitled to make a claim for compensation for the psychological injury he suffered because it has been determined by the Review Panel that the degree of permanent impairment he suffered exceeds the 10% threshold set out in s 4.11 of the MAI Act. In the normal course of events, Allianz would be entitled to raise as a defence to Mr Bell’s claim that his claim did not fall within the scope of s 9.1(1) of the MAI Act and therefore it was not liable for it. But as a result of what has happened, it is difficult to see how it could do so. Suppose, for example, a court hearing Mr Bell’s claim accepted Allianz’s argument that there were two separate events, one only of which fell within s 9.1(1) of the MAI Act. What is it to make of the binding conclusion of the Review Panel that Mr Bell suffered a psychological injury resulting from the incident in respect of which he sues which gave rise to a permanent impairment of 19%?
There may be cases where it is not arguable that there are two events, one falling outside s 1.9(1); and in those a medical assessor or a review panel would not make a jurisdictional error in proceeding on that basis. But that is not this case. Although it is correct to say that the two events are closely related in time and space, it seems to me that it is reasonably arguable that they are conceptually distinct. The attempted theft may have caused the accident, but it was capable of causing psychological injury whether or not the accident occurred.
There may also be cases where, even accepting that there are two events, it is not possible to determine which event caused the relevant injuries because, for example, they are so closely connected. But that does not appear to be this case. Here, the Medical Assessor attributed the injury to the first event and not to the second. He fell into error by concluding that that event was not a motor vehicle accident, whereas he should have left that question to the Commission or the Court. It may be that the Review Panel disagreed with the Medical Assessor’s conclusion and thought that both events were the cause of Mr Bell’s psychological injuries. But if that is what it thought, it needed to say so. Because the Review Panel did not draw a distinction between the two events, the effect of what it did was to assume the answer to a question it was required to decide – namely, whether a cause of the psychological injuries suffered by Mr Bell was the attempted theft of Mr Bell’s motorcycle by a person Mr Bell believed to be a member of a motorcycle gang, the falling of the motorcycle on Mr Bell’s leg, causing him injury, or both.
For those reasons, I would make the following orders:
Appeal allowed.
Judgment of the Court below be set aside and in place thereof: