Issued under Division 7.5 of the Motor Accident Injuries Act 2017

(a) revokes the certificate of Medical Assessor Rikard-Bell dated 16 May 2023, and

(b) issues a certificate that adjustment disorder with mixed anxiety and depressed mood caused by the accident is a threshold injury for the purposes of the Motor Accident Injuries Act 2017.

1. On 26 June 2021, [BQL] (claimant) was involved in a motor accident when a vehicle driven by her grandfather, in which she was a rear passenger, collided with another vehicle on a side street (accident).
2. [BQL] made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (NSW) (MAI Act) on Allianz Australia Insurance Limited (insurer).
3. A dispute has arisen between the insurer and [BQL] as to whether her psychological injuries are "threshold injuries" within the meaning and for the purposes of the MAI Act.
4. Whether [BQL] has suffered threshold injuries as a result of the accident affects her entitlement to both statutory benefits and damages: see ss 3.11, 3.28 and 4.4 of the MAI Act.
5. Pursuant to Schedule 2, cl 2(e) of the MAI Act, whether the injury caused by the accident is a threshold injury for the purposes of the Act is a medical assessment matter. A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act, at first instance by a Medical Assessor,[1] and on review by a review panel.[2]
6. The dispute was referred to Medical Assessor Christopher Rikard-Bell. On 2 May 2023 [BQL] was assessed by Medical Assessor Rikard-Bell, who issued a certificate on 16 May 2023. The Medical Assessor certified that the injury caused by the motor accident, being an Acute Stress Reaction now resolved, is a threshold injury for the purposes of the MAI Act.
7. [BQL] lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Rikard-Bell's assessment under s 7.26 of the MAI Act. On 30 June 2023, a delegate of the President determined there was reasonable cause to suspect that the medical assessment was incorrect in a material respect and referred the application to a review panel.
8. This review panel (the Panel) has been constituted to conduct a review of Medical Assessor Rikard-Bell's certificate dated 16 May 2023.

1. [BQL] is a person under a legal incapacity in accordance with s 7.47(2) of the MAI Act as she is a child under the age of 18 years old.
2. On 27 February 2023, the Commission issued an Appointed Representative Certificate in accordance with s 7.47 of the MAI Act, appointing [DBG] to be the appointed representative for [BQL] for the purposes of Division 7.7, until such time as she turns 18 years of age.

1. Section 7.26(5A) of the MAI Act provides that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.
2. The review of the medical assessment is not limited to a review of only that aspect that is alleged to be incorrect and is to be by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act.
3. The function of the medical panel is to form its own opinion on the medical question in dispute by applying the medical assessors own medical experience and medical expertise; it is not to choose between competing opinions, nor to assess the correctness of such opinions.[3]
4. Part 5 of the Personal Injury Commission Act 2020 (PIC Act) enables the Commission to make rules with respect to the practice and procedure before the Commission, including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) PIC Act. Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5. A review panel determines how it conducts and determines the proceedings.

Threshold injury (formerly minor injury) provisions

1. The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023, the MAI Amendment Act provides that a "minor injury" is known as a "threshold injury" and "minor injuries" are known as "threshold injuries". The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
2. The accident occurred and the original liability notices were issued by the insurer when the relevant term was "minor injury" which, because of the MAI Amendment Act, is now described as a "threshold injury". Any reference in these reasons to "minor injury" is taken to be a reference to a "threshold injury".
3. A "threshold injury" is defined in s 1.6 of the MAI Act and includes a "psychological or psychiatric injury that is not a recognised psychiatric illness".
4. Section 1.6(4) of the MAI Act provides that the regulations may exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury as follows:

"4 Meaning of "threshold injury", section 1.6(4) of the Act

(2) Each of the following injuries is included as a threshold injury for the purposes of the Act -

(a) acute stress disorder,

(b) adjustment disorder.

Note - See section 1.6 (5) of the Act in relation to the making of Motor Accident Guidelines for or with respect to the assessment of whether an injury is a threshold injury.

(3) In this clause acute stress disorder and adjustment disorder have the same meanings as in the document entitled Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association in May 2013."

1. Sub-section 1.6(5) provides that "[t]he Motor Accident Guidelines may may provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act".
2. The Motor Accident Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. Version 10 of the Guidelines is effective from 15 September 2025 and replaced version 9.3, except for claims arising from accidents before 1 April 2023.[4] For such accidents, such as [BQL]'s, certain clauses of version 10 do not apply, and specific clauses from version 9 of the Guidelines continue to apply.
3. Part 5 of the Guidelines contain the procedure for assessing whether an injury caused by the accident is a threshold injury for the purposes of the MAI Act, and provide the following general provisions for assessment:

"5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

5.4 Insurers must not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.

5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person's current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination."

1. Relevantly, cls 5.10 to 5.12 regard threshold psychological or psychiatric injury assessment and provide:

"5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.

5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.

5.12 Where the symptoms associated with the injured person's psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury."

1. On 4 February 2025, the Panel was convened in this matter. On 5 February 2025, the Panel made directions for the provision of a bundle from each of the parties of all the material relied on and written submissions for the purposes of the Review.
2. On 12 March 2025, the Panel met to discuss the proceedings and determined that a re-examination of [BQL] was required. [BQL] was advised of the arrangements. The Panel also made directions for the production of additional documents potentially relevant to the Review.
3. On 9 April 2025, the medical examination with Medical Assessors Newlyn and Friend took place. A copy of the medical examination report prepared by the Medical Assessors was provided to the legally qualified member of the Panel.
4. On 2 May 2025, the Panel reconvened for a second teleconference to discuss the re-examination findings. The Panel noted that the documents it requested had not been produced prior to the 9 April 2025 examination. Accordingly, the Panel determined it was appropriate to make further directions for these documents. It also directed a re-examination of [BQL] be scheduled in the event it was deemed necessary after considering the documents.
5. On 15 May 2025, the legally qualified member of the Panel held a preliminary conference with the parties to determine the status of the outstanding documents. The reasons for the delay were explained by [BQL]'s legal representatives. The re-examination of [BQL] was stood over pending the production of the documents.
6. On 21 August 2025, a further direction was issued by the Panel as several of the documents remained outstanding. This direction further stood-over the re-examination of [BQL].
7. On 23 September 2025, the outstanding documents were produced. The Panel had scheduled a re-examination which [BQL] failed to attend. This examination was re-scheduled, however there was a further failure of [BQL] to attend. After consideration of the documents, the Panel liaised and determined that a re-examination of [BQL] was not required. It provided the parties with seven days to make submissions on the additional documents so that these could be considered.
8. On 28 October 2025, submissions were received from the insurer. No submissions were received from [BQL].
9. Following receipt and consideration of the insurer's further submissions, the members of the Panel agreed on the outcome of the review as recorded in the certificate and these reasons.

1. Medical Assessor Rikard-Bell assessed [BQL] on 2 May 2023 and issued a certificate on 16 May 2023. The threshold injury dispute to be assessed was noted by the Medical Assessor as "Psychiatric condition - non-threshold injury PTSD".
2. The Medical Assessor concluded that the accident caused an Acute Stress Reaction now resolved which is a threshold injury for the purposes of the MAI Act.

1. [BQL] attended the assessment, undertaken via video conference, with her maternal grandmother. An interpreter was present.
2. The Medical Assessor recorded that [BQL] is a 10-year-old girl in Year 5 who resides with her father, paternal grandparents,[5] an aunt and three cousins. [BQL]'s developmental history was noted as normal, with no previous or subsequent serious illnesses, injuries or conditions. Aside from pain, the Medical Assessor noted there have been no interruptions to [BQL]'s functioning at school. In respect of [BQL]'s pain, it was noted that this can interfere with her school attendance if she is uncomfortable and suffering, and that she cannot play with other children to the same extent. Over the past two years she has missed up to 80 days of school.
3. It was recorded that there is no previous history of anxiety, depression or need for treatment from mental health care providers, no relevant drug or alcohol history, and no family history of psychiatric illnesses.
4. In respect of the accident, the Medical Assessor noted that the accident involved a "loud bang which was frightening. [The claimant] lost her earrings and at the same time she felt that her ears may have 'come off'. There was great shock and airbags deployed. There were no obvious injuries at the time, however [the claimant] noted pain in her back".
5. A maternal aunt arrived and transported them to hospital. They were taken to Campbelltown Hospital where [BQL] was diagnosed with soft tissue injuries and referred for physiotherapy.
6. [BQL] continued to complain of upper thoracic and neck pain. Due to [BQL]'s pain, it is recorded that her physical activities have been restricted as this aggravates her pain.
7. [BQL] had psychological treatment on one occasion with her family, but it was reported to have provided no particular benefit.
8. It was reported that [BQL] had interrupted sleep and has had psychological treatment on one occasion on 21 January 2022 with Howard Wiggins, psychologist, who reported sleep difficulties and high levels of pain.
9. It was noted that Dr Rastogi diagnosed post-traumatic stress disorder on 3 June 2022 due to intrusive dreams, avoidance and reluctance with going to school, as well as being more cautious. Dr Rastogi opined that [BQL] had not reached maximum medical improvement.
10. In terms of [BQL]'s current symptoms, the Medical Assessor recorded she is sleeping well with an occasional dream about the accident approximately twice per month. Her mood is happy and there are no panic attacks, although she worries about her grandparents and their health. She is reasonably happy at school, although cannot attend school approximately every two weeks due to the pain in her neck and in the middle of her back. The cause of the pain was reported to be unclear.
11. She can get up in the morning, make her bed and have breakfast. Her grandfather drives her to school. Her grandfather collects her from school. She will do her homework and go to bed by 8.30pm. She goes for a walk with her father on Saturday. They go to church on Sunday.

1. The Medical Assessor noted that [BQL] was concerned about the pain she was suffering from the accident, which was reported to be the main issue. It was reported that [BQL] and her grandmother both stated that if it were not for the pain, she would be back to normal. Both [BQL] and her grandmother indicated that she did not need any psychological treatment or counselling and agreed that, if it were not for the pain, [BQL] would be well.
2. The Medical Assessor noted there was no impairment of adaptation, mild impairment of social and recreational functioning, no impairment of self-care and personal hygiene, no impairment of social functioning, no impairment of concentration, persistence and pace from a psychological perspective, and no impairment of travel or travel restrictions.
3. The Medical Assessor formed the view that [BQL] suffered from an acute stress reaction following the accident where there were some fears, some nightmares, intrusive thoughts and recollections, as well as some avoidance and hypervigilance. However, the Medical Assessor opined that those symptoms had now abated and the main ongoing issue is with chronic and recurrent pain, which impacts on socialisation and school attendance. He concluded there was no diagnosable psychiatric condition attributable to the subject accident.
4. The Medical Assessor held:

(a) there were no psychological injuries caused by the motor accident;

(b) the injury of post-traumatic stress disorder was not caused by the motor accident, and

(c) the injury of acute stress reaction caused by the motor accident has resolved. This psychological condition is a 'threshold injury' for the purposes of the MAI Act and has now resolved.

1. The insurer did not put on written submissions directed to the Panel. Rather, it relied on its submissions dated 27 May 2022, which were prepared in response to [BQL]'s application for a threshold injury dispute. The insurer's submissions in reply to [BQL]'s application for review of Medical Assessor Rikard-Bell's assessment, dated 28 June 2023, were also provided. Both sets of submissions have been considered by the Panel.
2. The insurer also made submissions via the Portal on 28 October 2025 that [BQL]'s school records suggest that she had notable absences from school prior to the accident, and that therefore any absenteeism following the accident cannot be attributed to it.
3. The insurer submits that [BQL]'s alleged injuries meet the definition of "minor injury" (now "threshold injury") for the purposes of the MAI Act.
4. The insurer submits that [BQL] has not suffered a recognised psychiatric illness as per the DSM-5. In the alternative, if it is found that a psychiatric illness has been sustained by [BQL], the insurer submits that this is a minor psychological injury for the purposes of the MAI Act.
5. The insurer refers to the Certificate of Capacity by Dr Patu which stated a diagnosis of "sometimes nightmares" and the report of psychologist Mr Wiggins which does not state a formal psychiatric disorder.
6. No psychological treatment has been undertaken by [BQL] post-accident and, while it is alleged that she suffers from post-traumatic stress disorder, the insurer submits that a clinical rationale for this has not been provided. In the absence of a formal diagnosis and noting the lack of psychological treatment to date, the insurer submits that [BQL]'s symptoms are not sufficient to warrant a classification of a non-threshold injury as per the MAI Act.
7. The insurer also disputes that there are any material errors within Medical Assessor Rikard-Bell's certificate, and says it is evident that the Medical Assessor was aware of, and had sufficient regard to, Mr Wiggins' report. The insurer submits that Medical Assessor Rikard-Bell's findings were consistent with the history taken at the assessment.

1. [BQL] did not put on submissions addressed to the Panel and relied on her submissions dated 14 June 2023 which were addressed to President's delegate.
2. [BQL] submits that the Medical Assessor failed to properly consider or engage with the report of Howard Wiggins dated 21 January 2022.
3. Specifically, [BQL] submits that the Medical Assessor's statement that Mr Wiggins "noted ongoing pain as the main problem" is incorrect. Rather, [BQL] submits that Mr Wiggins records other symptoms being difficulty sleeping and loss of memory, and does not suggest that these symptoms are any less severe than [BQL]'s symptoms of physical pain.
4. [BQL] submits that this is germane to the diagnosis of injury, as Dr Rastogi diagnosed post-traumatic stress disorder based on symptoms including intrusive dreams and flashbacks of the accident. By failing to reference the other symptoms noted by Mr Wiggins, the Medical Assessor cannot be said to have the correct history of symptoms, which is critical to the diagnosis. If [BQL]'s history of symptoms had been adequately considered, [BQL] submits that this is capable of changing the diagnosis to one of non-threshold injury.

1. The parties each prepared a bundle of documents containing the material they relied on for the purposes of the Review.
2. In response to the Panel's directions, [BQL] has produced several additional bundles, including a bundle dated 16 June 2025 containing updated clinical notes of The Practice Blacktown, a bundle dated 5 August 2025 containing the Department of Education records, and a bundle dated 23 September 2025 containing the clinical notes and file of Minto Mediclinic.
3. The material contained in all bundles has been considered by the Panel and relevant aspects are briefly summarised below.

Discharge Referral from Campbelltown Hospital Emergency Department

1. The discharge referral from the Emergency Department Campbelltown Hospital for [BQL]'s presentation on 26 June 2021 states that she was brought in by her parents after a motor accident and possibly has a whiplash injury of the neck.
2. The CT scan was reported to show no fractures.
3. There was a congenital non-union of the posterior arch of C1. There was a mild reversal of the normal cervical lordosis likely to be positional or related to a collar.

1. Clinical notes from The Practice Blacktown up to 9 April 2025 were provided in two bundles. It is noted that the clinical notes in the bundle provided 16 June 2025 do not show the dates of the consultations.
2. In terms of Active Past History, "MVA 26/6/21" was listed on 28 June 2021 and "nightmares post-MVA 26/6/21" was listed on 13 December 2021.
3. The entry dated 28 June 2021 states [BQL] was involved in a motor accident on 26 June 2021 being a back seat passenger. The vehicle in which she was travelling was struck by another vehicle on the front end. She had a painful neck and went to Campbelltown Hospital. She had a CT scan of the cervical spine which showed no fracture. She was prescribed Panamax and advised to rest.
4. On 5 July 2021 and 13 July 2021, it was recorded that [BQL] was stable and "sleeping ok".
5. On 13 December 2021, it was recorded "Reason for visit: MVA 26/6/21 sleep? disturbed, Referral psychologist -, ? nightmares - post MVA 26/6/21", "Diagnosis: MVA 26/6/21, ? nightmares - post MVA 26/6/21". She was referred to a psychologist.
6. On 20 December 2021, it was recorded "Reason for visit: MVA 26/6/21, ? nightmares - post MVA 26/6/21, Referral CBT-", "Diagnosis: MVA 26/6/21, ? nightmares - post MVA 26/6/21", "Actions: Letter written to Associated Counsellors and psychologists - Campbelltown printed".
7. On 17 January 2022, it was recorded "Reason for visit: ? nightmares- post MVA 26/6/21, MVA 26/6/21, ? back pain", "Diagnosis: ? nightmares - post MVA 26/6/21, MVA 26/6/21", "Actions: Letter to Campbelltown Physio printed. Letter written to old Guildford physio. Letter written to Associated Counsellors and psychologists - Campbelltown printed".
8. The referral letters to Associated Counsellors and Psychologists dated 13 December 2021 and 20 December 2021 note [BQL]'s nightmares post-accident, with referral for review and assessment and counselling.

1. The file of Minto Mediclinic as at 22 September 2025 has been considered. The Panel notes that these records consist of a single visit by [BQL] on 24 July 2024 regarding an upper respiratory tract infection. A medical certificate was provided, certifying [BQL] to be unfit for school from 23 July 2024 to 25 July 2024, inclusive.

1. Howard Wiggins, psychologist, had a telehealth session with [BQL] on 21 January 2022. Mr Wiggins noted that [BQL] reported disrupted sleep, loss of memory, difficulty hearing, and having high levels of chronic pain in her back, causing difficulty moving and being active. [BQL] was recorded to have reported feeling that little to no change has occurred in her injury since the accident.
2. Mr Wiggins concluded: "It is recommended that PRIORITY ATTENTION be directed to referring Mikaele to have an IME for her injury. Further counselling support should be reviewed after an IME assessment."[6]

1. Dr Richa Rastogi, psychiatrist, examined [BQL] on 3 June 2022.
2. It was reported that [BQL] was a backseat passenger in a vehicle driven by her grandfather and was wearing a seat belt. They were approaching a roundabout. The vehicle at fault failed to give way causing the collision. The airbags did not deploy. She had immediate pain in the back, neck and pinna, and an earache. She was able to self-extricate. The vehicle was written off. There was no attendance by police or paramedics. She was taken to Campbelltown Hospital.
3. She has occasional waking due to back pain interrupting her sleep. She has good hearing and denies hearing deficits.
4. Dr Rastogi noted she is able to travel as a passenger in her father's car only. [BQL] was said to report nightmares and dreams of the accident and "car crashing with fear and arousal and interrupted sleep". "She is more fearful and avoidant." "There are some avoidance behaviours."
5. She is reluctant to travel in a motor vehicle when her grandfather is driving. She is always on edge in a motor vehicle. She prefers to stay home and is reluctant to go out with others. She prefers to be alone and hates noise. She is less interactive, spends more time in her room and is withdrawn. She socially interacts but is reluctant to go to school. She is now "clingier" and has had absences from school.
6. The letter from [BQL]'s psychologist, Mr Wiggins, dated 21 January 2022 was referenced.
7. Dr Rastogi noted [BQL] was anxious and her affect was reactive during her examination. Dr Rastogi diagnosed post-traumatic stress disorder. Dr Rastogi does not refer to the DSM-5-TR criteria, but rather notes:

"She is experiencing intrusive dreams, flashbacks of accident, arousal, startled responses, fear and avoidance and reluctance to go to school. She is more withdrawn and wanting to stay home. There is underlying anxiety and fears that are affecting her social and school attendance. This has mildly restricted to do things and she is more cautious.

She does display poor stress coping and poor distress tolerance making her more vulnerable. She has not received any psychological treatment till date."

1. Dr Rastogi opined that [BQL]'s prognosis was "yet to be determined as she has not received any treatment".

1. [BQL]'s application for personal injury benefits dated 25 September 2021 has been considered. In respect of the accident, the application states "I was in shock and in pain with my neck and my ears were not connected". In respect of her injuries, the application states "Her neck in pain and she felt like her ears came off and her earrings were in the floor in the car when the car crashed" [sic].

1. Two Certificates of Fitness have been provided.
2. In the Certificate of Fitness dated 25 September 2021, [BQL]'s diagnosis is recorded as "soft tissue injury neck", with treatment listed as "Analgesia + massage + exercises".
3. In the Certificate of Fitness dated 20 December 2021, [BQL]'s diagnosis is recorded as "Sometimes Nightmares", with treatment listed as "Counselling as needed" and referral listed as "Psychologist as needed".

1. The NSW Department of Education records produced under cover letter dated 31 July 2025 have been considered.
2. These records consist of documents from Elizabeth Macarthur High School, Harrington Park Public School and Thomas Acres Public School.
3. [BQL]'s enrolment forms and supporting documents have been considered.
4. The records also include [BQL]'s school reports and NAPLAN results. In respect of one subject, it was noted that [BQL]'s frequent absences have impacted her progress and success.
5. The school absences for the period 1 January 2017 to 9 August 2023 record 31 partial absences and 249 whole absences for the period. It is noted that some of these absences were due to COVID-19 restrictions. Other reasons include weather, viral illness with a cough, a physiotherapy appointment and other illnesses.
6. An email dated 8 August 2023 notes that [BQL] had not attended school that term, and her attendance has been an ongoing concern.
7. [BQL]'s medical certificates certifying absences from school for various dates in 2025 are noted. [BQL]'s list of absences are recorded to be due to various reasons, including being sick, having a bad flu, having a viral illness, her family being too busy, and appointments.

1. [BQL] was examined on 9 April 2025 via MS Teams.

1. The re-examination was undertaken by Medical Assessor Thomas Newlyn and Medical Assessor Paul Friend. Medical Assessor Friend was the lead interviewer.
2. [BQL] (here after referred to [BQL]) attended with her grandmother [DBG].
3. The Samoan interpreter engaged by the Commission, Sapena Asiata, National Accreditation Authority for Translators and Interpreters number 35855, was present throughout the examination.
4. [BQL] was born in Australia and speaks good English. Her grandmother had limited English and required the services of the interpreter.
5. Generally, [BQL] was asked questions and her grandmother was asked to clarify and provide further information, from time to time.

Psychosocial history and pre-accident history

1. [BQL] was born in Sydney and has always lived in Sydney.
2. Her grandmother reported when asked that there were no problems during [BQL]'s mother's pregnancy. She was born by vaginal delivery. She had normal development, as a baby and young child.
3. [BQL] has not been involved in any previous motor accidents or sustained any significant injuries. She has not undergone any previous psychiatric or psychological treatment.
4. [BQL] enrolled in primary school at Thomas Acres Public School for Kindergarten and Year 1. She subsequently was enrolled at St Andrews Public School for Years 2 to 4 and Harrington Park Public School for Years 5 to 6. The changes in school were necessitated by the family relocating.
5. [DBG] stated that [BQL]'s parents had separated when she was one year old and there had subsequently been no contact with her mother.
6. [BQL] currently lives with her father [redacted], her grandfather, [redacted], and grandmother [DBG]. Her father's brother and his wife and his sister and her three children, also live in the same house.
7. [BQL] did not experience any significant adversity or abuse prior to the accident.

1. This history is the combination of that provided by [BQL] and [DBG].
2. [BQL] was travelling in the back seat. Her grandfather was driving and her grandmother was sitting in the front seat.
3. There was a sudden collision with a red vehicle that came from the left. The red vehicle was smaller than the vehicle in which they were travelling, which was a Toyota Prado Landcruiser. The red vehicle spun twice and twice collided with the Toyota Prado Landcruiser.
4. [BQL] was thrown forward and hit her head on the back of the seat in front. She felt pain in her back and her neck. Her earrings fell off and she initially thought that her ears had fallen off.
5. [BQL] initially remained in the vehicle. She exited the vehicle when passerby came and tapped on the windows. She sat down on the grass.
6. Her grandmother was unable to exit the vehicle because the door was jammed. She had to climb onto the back seat and exit through one of the back doors.
7. [BQL] believes the police came to the accident but an ambulance did not attend.
8. The Toyota Prado Landcruiser was later written off.

History of symptoms and treatment following the motor accident

1. [BQL] and her grandparents were taken by her aunt to Campbelltown Hospital.
2. She remembers having scans or X-rays of her neck and back and being given several injections, she believes to help "straighten" her neck and back.
3. It is recorded in the discharge referral from Campbelltown Hospital for the presentation on 28 June 2021 that she had CT scans of the cervical scan and was administered analgesia but the specific analgesia is not specified.
4. It was noted in the report of the CT scan of the cervical scan that there was a congenital non-union of the posterior arch of C1.
5. [BQL] stated they were discharged the following morning at 5.00am and went home.
6. She continued to have pain in her back and neck which was exacerbated when she tried to run or play any sport. She had previously played rugby and soccer.
7. She developed what she referred to as flashbacks which were recurrent intrusive images and memories of the motor accident including feeling that her ears had fallen off. These could occur spontaneously or when she was in pain.
8. She had nightmares with a content about the motor accident which could wake her from sleep, from time to time.
9. The pain in the neck and back woke her from sleep, multiple times each night.
10. [BQL] became scared of playing sport and initially had many days off school. It appears that she was only attending two days each week and there was a period of school refusal.
11. Her grandmother reported that it took about eighteen months for [BQL] to recover sufficiently to attend school five days each week. [BQL] agreed with that estimate.
12. She ceased playing sport following the motor accident because of the ongoing pain in the neck and back.
13. [BQL] had physiotherapy for two years following the motor accident.
14. She took Panadol for the pain.
15. She and her grandparents were referred to Howard C Wiggins, consultant psychologist, attending on the first occasion on 21 January 2022.
16. Mr Wiggins stated in his report of that date that she had disrupted sleep, loss of memory, difficulty learning and had high levels of chronic pain in her back. She reported there being little change in her injuries since the motor accident.
17. [BQL] could not remember much about the counselling with Mr Wiggins. Her grandmother believed they had consulted someone for two to three sessions.

Details of any relevant injuries or conditions sustained since the motor accident

1. [BQL] has not been involved in any subsequent motor accidents or accidents of any kind, developed any new medical conditions or sustained any fractures. This was confirmed by her grandmother.

1. [BQL] continues to have similar symptoms. She has pain in her neck and back. The pain in her back is in the middle and on both sides.
2. The pain wakes her up from sleep, three to five times every night. She has pain when she wakes in the morning.
3. The pain is exacerbated by walking or running. She avoids playing any sport because of the pain.
4. She continues to have what she refers to as "flashbacks" which are intrusive images and memories of the motor accident which can cause her to lock herself in a room. They can occur spontaneously, when she is travelling in a motor vehicle and when she is experiencing increased pain.
5. She has nightmares with a content related to the motor accident which can wake her from sleep from time to time. The main disturbance for her sleep is the back and neck pain.
6. [BQL] feels all right sitting in the classroom. She has increased homework with being in Year 7 and says that is also all right.

1. [BQL] continues to take Panadol when needed for pain.
2. She is not undertaking any other treatment.
3. She had three sessions of psychological treatment, as far as could be determined.

1. [BQL] was on time, alert and orientated.
2. She was examined by video teleconference with her grandmother.
3. She answered questions about her symptoms, particularly her physical symptoms, without difficulty.
4. [BQL] has recurrent intrusive images and memories of the motor accident which occur spontaneously, sometimes if she travels in a motor vehicle and if she experiences increased pain.
5. She has nightmares with a similar content to the intrusive images and memories of the motor accident which wake her from sleep from time to time.
6. She had ongoing pain in her neck and back which wakes her from sleep four to five times each night.
7. She can concentrate at school and to do her homework.

1. [BQL] gets out of bed between 7.00am and 7.30am on schooldays. She relies on her grandmother to wake her.
2. She sleeps in until 10.00am on Saturdays.
3. Her aunt usually makes her breakfast and also makes her lunch to take to school. Her aunt has always done these tasks.
4. She dresses herself and makes her bed, although it is difficult to make her bed, at times, because of her back and neck pain.
5. Her grandfather drives her to and from school.
6. She has a sleep after school and then completes her homework.
7. The family goes to Church on Sundays. She is usually driven by her father.
8. There are occasionally special celebrations such as for birthdays which she attends but sometimes needs to sit down because of her back and neck pain.
9. She does not do any other activities at the weekend. She has ceased playing any sport because of her ongoing back and neck pain.
10. She does not avoid travelling by motor vehicle because of her symptoms.
11. She has friends at school and at Church but does not do any activities with them outside of school or Church.
12. She can concentrate at school in the classroom unless others are making a lot of noise. It is easier to do her homework at home because there is no distracting noise.
13. She watches the Canterbury Bankstown Bulldogs rugby league team on television. She can follow the match and understand it.
14. She has read various books including several of the Harry Potter books, Matilda, and Willy Wonka and the Chocolate Factory.
15. She is attending school full time except when there is a sporting activity on, in which case she is inclined to avoid going to school because of the pain and not wanting to see others play sport.
16. The Medical Assessors asked about other symptoms and activities.
17. [BQL] has gone on one school excursion in primary school. She found it a "bit noisy" on the bus and did not like the speed bumps because it hurt her back.
18. She has so far not been on any school excursions in Year 7.
19. She does not travel by public transport.
20. She has always lived in Australia and has never visited Samoa.
21. She described feeling sad and seeing herself in a nightmare and crying.

1. [BQL]'s account was consistent throughout the examination and as far as could be determined her grandmother's account was consistent.
2. It is noted that the report of Howard C Wiggins reports that [BQL] had difficulty with hearing and loss of memory. [BQL] did not report difficulty with hearing or loss of memory at the examination.
3. It is noted that the report of Dr Richa Rastogi, dated 3 June 2022, states she was reluctant to travel by motor vehicle when her grandfather was driving and preferred to stay home. It also states the accident occurred when they were approaching a roundabout. [BQL] said her grandfather drove her to and from school each day, and did not indicate being uncomfortable travelling in a motor vehicle when her grandfather was driving.
4. The report by Dr Rastogi also stated that [BQL] was always on edge when travelling in a motor vehicle. At the examination, [BQL] did not describe in those terms but did report experiencing intrusive images and memories of the motor accident.
5. [BQL] was approximately 8½ years of age at the time of the motor accident and had incomplete memories of what occurred which was consistent with her age at the time of the motor accident.

1. [BQL] reaches criterion for a diagnosis of an adjustment disorder with mixed anxiety and a depressed mood.
2. She does have recurrent images and memories of the motor accident which can occur spontaneously or travelling in a motor vehicle or when experiencing increased pain.
3. She has nightmares with a similar content.
4. Based on [BQL]'s reports and the documentation before the Panel, these commenced within three months of the accident (criterion A) and are clinically significant (criterion B).
5. She now attends school five days each week and only avoids attends attending on days when there is a sporting activity. This is because of the pain that she experiences, if she tries to run or play sport.
6. She can concentrate at school and to do her homework. She can read books.
7. She socialises at school and at Church.
8. She did not describe sufficient symptoms to reach criterion for a diagnosis of post-traumatic stress disorder or a Phobic Disorder related to motor vehicle travel, satisfying criterion C.
9. The symptoms do not represent normal bereavement, satisfying criterion D.
10. Dr Richa Rastogi made a diagnosis of post-traumatic stress disorder. The Medical Assessors considered this diagnosis and determined that [BQL] did not describe sufficient symptoms to meet criterion for this diagnosis. She described nightmares with themes related to the motor accident and recurrent intrusive images and memories, consistent with criterion B. She otherwise did not describe symptoms consistent with satisfying the balance of the criteria.
11. The accident involved a collision on a side street between the vehicle [BQL] was travelling in and another vehicle. There was a loud bang, which [BQL] reports to have been frightening. The airbags deployed. [BQL] lost her earrings and felt that her ears may have come off. However, at no stage did [BQL] report fearing for her life or report that the accident was life-threatening. Therefore, the Panel is also not satisfied that criterion A of post-traumatic stress disorder is satisfied.

1. The Panel refers to and adopts the findings of its medical members as set out in the Medical Examination report extracted above.
2. The Panel is satisfied, based on the documentation before it as summarised above, and the clinical judgment of the Medical Assessors exercised when examining [BQL], that [BQL] satisfies the DSM-5-TR criteria for adjustment disorder with mixed anxiety and depressed mood. [BQL] reaches criterion for this condition as described at paragraphs [177] to [185] above.
3. Adjustment disorder with mixed anxiety and depressed mood is defined by part 1, cl 4(2)(b) of the MAI Regulation to be a threshold injury for the purposes of the MAI Act.
4. The assessment of whether the injury is a 'threshold injury' is not a direct measure of symptoms or disability. A finding that the injury is a 'threshold injury' indicates that there was an injury caused by the motor accident and that there may be continuing symptoms, however the injury satisfies the definition of a threshold injury under the MAI Act and the Regulation.

1. Causation is not specifically addressed in Part 5 of the Guidelines. However, in Part 6, which deals with assessing the degree of permanent impairment arising from an injury caused by a motor accident, cls 6.5 to 6.7 set out how causation of injury is to be assessed:

6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:

'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:

1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.

2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'

This, therefore, involves a medical decision and a non-medical informed judgement.

6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes."

1. Justice Wright stated in Briggs v IAG Ltd (t/as NRMA Insurance)[7] at [35]:

"The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries."

1. The provisions of the Civil Liability Act 2002 (NSW) (CL Act) apply in determining the issues of negligence and causation.[8] It is therefore necessary for the Panel to consider whether the accident caused or contributed to the injuries. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible.[9]
2. [BQL] had no impairment of functioning, and no psychiatric or psychological symptoms or exposure to traumatic events prior to the accident.
3. She has subsequently not been involved in any motor accidents, experienced other traumatic events or developed any new and unrelated medical conditions.
4. The Panel finds that an accident of the type experienced by [BQL] could have caused an adjustment disorder. The Panel finds there is no other cause for the condition of adjustment disorder with mixed anxiety and depressed mood other than the accident on 28 June 2021, and that the accident did cause [BQL]'s injury.

1. The Panel has found that [BQL] suffered an adjustment disorder with mixed anxiety and depressed mood caused by the accident.
2. While the conclusion of the Panel is substantially the same as Medical Assessor Rikard-Bell in that [BQL]'s injuries are threshold injuries, its findings differ from those made by Medical Assessor Rikard-Bell. Accordingly, the Panel revokes the Medical Assessor's certificate dated 16 May 2023 and certifies that adjustment disorder with mixed anxiety and depressed mood caused by the accident is a threshold injury for the purposes of the MAI Act.

1. These reasons contain sensitive personal information of a young child. Having weighed the matters referred to in r 132(4) of the Rules, including the safety, health and wellbeing of the claimant, and whether the public interest in giving the direction significantly outweighs the public interest in open justice, the Panel is satisfied that this decision should be de-identified before it is published. The Panel also notes that it informed the parties of its intention to de-identify the decision and invited submissions from the parties. It received no submissions in response.
2. The Panel directs that, pursuant to r 132 of the Rules, the decision be de-identified prior to publication.

[3] Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47].

[5] There are inconsistent references in the Medical Assessment as to whether the claimant resides with her paternal grandparents or maternal grandparents. Given the additional history provided, the Panel assumes that any references to "maternal grandparents" is a typographical error and should read "paternal grandparents".

[6] In the absence of submissions on this point, the Panel has assumed that the reference to "Mikaele" is a typographical error and should be read as a reference to the claimant.

[7] [2022] NSWSC 372.

[9] Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50].