Buestami v Allianz Australia Finance Ltd

Medium Neutral Citation: Buestami v Allianz Australia Finance Ltd [2025] NSWSC 465

Hearing dates: 01 July 2025

Date of orders: 01 July 2025

Decision date: 01 July 2025

Jurisdiction: Common Law

Before: Garling J

Decision: 1. Order in the nature of certiorari quashing the decision and the consequent Review Panel Certificate of the second defendant, namely the certificate and decision dated 12 September 2024 in matter R-M10541496/22.
2. Remit the matter to the third defendant, the President of the Personal Injury Commission of New South Wales, for re-allocation of the matter to a differently constituted Review Panel for determination of the matter according to law.
3. No order as to costs.

Catchwords: ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Decisions of medical assessor and delegate of President of Personal Injury Commission on review applications – Failure of Review Panel to exercise jurisdiction as required – Where Review Panel issued medical assessment certificate determining plaintiff’s whole person impairment at 8% - Where Review Panel failed to determine the extent of whole person impairment as it existed at the time of assessment – Where Review Panel failed to determine whole person impairment relating to subsequent injury and conduct appropriate calculation as required – Errors established – Medical assessment and review determination set aside – Matter remitted for re-determination

Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) s 63(3)
Motor Accident Permanent Impairment Guidelines (NSW) cls 1.21, 1.34, 1.220

Cases Cited: Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202; (2015) 71 MVR 454
Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; (2020) 93 MVR 378
State Government Insurance Commission v Oakley (1990) 10 MVR 570

Texts Cited: Not Applicable

Category: Principal judgment

Parties: Heri Marlis Buestami (P)
Allianz Australia Insurance Ltd (D1)

Representation: Counsel:
J Gumbert (P)
V Camporeale (D1)
Submitting (D2)
Submitting (D3)
Solicitors:
Colin Daley Quinn, Solicitors (P)
Sparke Helmore, Lawyers (D1)

File Number(s): 2024/454768

Publication restriction: Not Applicable

EX TEMPORE JUDGMENT

1. By a Summons filed on 6 December 2024, the plaintiff, Heri Marlis Buestami, seeks judicial review of a Review Panel Certificate dated 12 September 2024. All named defendants filed submitting appearances and did not make any submissions to the Court.

2. The Review Panel was constituted after a delegate of the President of the Personal Injury Commission decided, on 2 December 2022, to accept a Review Application lodged by Allianz Australia Insurance Limited ("Allianz"), the first defendant, with respect to a Medical Certificate issued on 28 September 2022 by Dr Yu Tang Shen.

3. The Review Panel was constituted by a member with legal qualifications and two medical assessors.

Relief Sought

4. The relief sought in the summons was in the following form:

“1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision and/or medical assessment and Review Panel Certificate of the second defendant, the review panel as was constituted by the President of the Personal Injury Commission of New South Wales (‘the Commission’), the third defendant, pursuant to section 63(3) of the Motor Accidents Compensation Act 1999 (‘the Act’), namely, the certificate and decision dated 12 September 2024 in matter R-M10541496/22, made purportedly pursuant to Part 3.4 of the Act (‘the review panel decision’).

2. An order in the nature of mandamus remitting the matters the subject of the review panel decision and the Review Panel Certificate to the third defendant for reallocation of the matter to a differently constituted review panel for determination of the matter according to law.”

Grounds for Relief

5. Two grounds were nominated for the relief. They are in the following terms:

“1. Ground 1: The review panel was required to determine the question of causation in accordance with clauses 1.5-1.7 of the Motor Accident Permanent Impairment Guidelines (‘the guidelines’), the Civil Liability Act 2002 and common law principles. The review panel fell into jurisdictional error in determining causation, as follows:

(a) The review panel failed to consider or apply the principles of causation set out in State Government Insurance Commission v Oakley (1**990) Aust Torts Rep 81-003; 10 MVR 570, and Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; 93 MVR 378, in particular, by failing to consider whether the psychological injury or exacerbation of psychological injury that the plaintiff sustained as a result of a subsequent dog bite should be treated as causally related to or independent of the injuries sustained in the accident. In particular, the review panel failed to consider:

(i) whether the dog bite injury would have occurred had the plaintiff not been in the condition caused by the first defendant’s negligence;

(ii) whether the added damage caused by the dog bite injury should be treated as caused by that negligence;

(iii) whether the psychological damage sustained by the plaintiff as a result of the dog bite is greater because of aggravation of the earlier injury caused by the motor accident.

Failing to determine the question of causation according to law is a jurisdictional error.

(b) The review panel asked itself the wrong questions, which were:

(i) whether the dog bite event itself was causally related to the injury sustained by the motor accident, and;

(ii) whether the specific nature of the impairment caused by the dog bite existed prior to the dog bite.

The correct questions were:

(iii) whether the psychological injury caused by the dog bite was causally related to the injury caused by the motor accident, and;

(iv) whether the psychological damage sustained by the plaintiff as a result of the dog bite is greater due to his earlier injury.

Asking itself the wrong question or failing to ask itself the correction questions is a jurisdictional error.

2. [Ground 2:] The review panel constructively failed to exercise its jurisdiction and statutory function and misapplied the guidelines by:

(a) Making a deduction for subsequent unrelated impairment in circumstances where it had failed to first lawfully determine whether the subsequent impairment was unrelated.

(b) Failing to comply with clause 1.21 of the guidelines by purporting to ‘set aside’ the impairment caused by the subsequent injury and assess the plaintiff’s impairment as it was before the subsequent dog bite, rather than as at the time of its assessment. It can be inferred from the review panel’s reasons that the plaintiff’s impairment in the category of ‘Travel’ at the time of assessment would have been at least class 3 rather than class 2 if the review panel had not wrongly excluded the present impairment that it considered to be related to the dog bite. This singular change would have resulted in a median class score of 3, and an aggregate score of 16, resulting in a total whole person impairment of 17% rather than 9% (guidelines at Table 17).

(c) If clause 1.34 of the guidelines applied by reason of a lawful finding of a subsequent unrelated injury or condition, failing to comply with that clause by failing to calculate the impairment caused by a subsequent and unrelated injury or condition (namely, the adjustment disorder caused by the dog bite). If the review panel had calculated the impairment caused by the adjustment disorder then, based on the review Panel’s reasons, it is possible that the only impairment caused by that condition would have been in the category of Travel. If the claimant was assessed at Class 1 for the adjustment disorder for all categories except Travel, and Class 3 for Travel, the median class score would be 1 and the aggregate score would be 8, resulting in whole person impairment of 1%. Even if this was deducted from the plaintiff’s whole person impairment of 17%, the plaintiff’s total whole person impairment would still exceed 10%.”

Factual Background

6. It is appropriate to briefly recount the factual background so as to provide the context in which to consider these proceedings and the plaintiff's submissions.

7. In 2002, the plaintiff was involved in a motor vehicle accident. When ultimately assessed, he was found to have a 1% whole person impairment relating to that accident.

8. Many years later, whilst working as a driver for the Iraqi Consulate, on 5 October 2017, the plaintiff was involved in a second motor vehicle accident. He ceased working due to his injuries and disabilities. He claimed compensation for his whole person permanent impairment.

9. On 24 September 2020, Dr Jager assessed him as having a 9% whole person impairment as a consequence of Post-Traumatic Stress Disorder (“PTSD”) sustained in that second motor vehicle accident. A certificate was issued on 16 October 2020.

10. At a time which has not been clearly identified or articulated, but after the second motor vehicle accident, the plaintiff was bitten by a dog. This event led to further psychiatric symptoms.

11. The plaintiff claimed that by November 2021 his PTSD had deteriorated, and that a further assessment should be undertaken. The deterioration was disputed by Allianz, the insurer of the at-fault car in the second motor vehicle accident. It was following this dispute between the plaintiff and Allianz about the extent, if any, of the further deterioration to the whole person impairment determined by Dr Jager, that the Medical Certificate and Review Panel assessment the subject of these proceedings took place.

12. It is appropriate, before considering the grounds, to describe the Review Panel assessment.

Review Panel Assessment

13. The Review Panel determined that it was appropriate for it to re-examine the plaintiff. That re-examination ultimately took place on 4 March 2024 when two members of the Panel, being the two medical assessors, re-examined the plaintiff.

14. It is not clear from the statement of reasons of the Review Panel how, or if at all, the legally qualified member participated in, or was informed of, the results of that medical re-examination. The way in which the statement of reasons is expressed does not reveal what role, if any, was played by the legal member or how the legal member was informed, for the purpose of participating in the decision, about the results of the re-examination. However, no point is taken about that in these grounds.

15. In the course of the Panel's review, after clinically examining the plaintiff, during which a mental state examination took place and an assessment of his current functioning occurred by a method of questions and answers, the Panel reviewed the significant documentation with which it had been provided. It set out its comments with respect to the range of documents which it reviewed. Those comments included the following:

“154. The Panel found Mr Buestami less impaired than Dr Canaris as he has the capacity for independent living and the panel rated his self-care and personal hygiene as 2.

155. The Panel noted Dr Canaris was not aware of his ongoing recreational activities and had he been aware, he may have rated his social and recreational activities less impaired.

156. The Panel also identified a subsequent psychological injury and rated travel less impaired.”

16. The reference to Dr Canaris was a reference to a report he wrote on 7 July 2023, in which he had assessed the plaintiff's whole person impairment at 27%.

17. The Panel moved to its determinations. Those determinations included these remarks:

“160. He continued driving in the first two years after the subject accident, with some trauma symptoms, depression and anxiety symptoms, and maintained overall independence…

161. He then had a subsequent injury from a dog bite, he developed symptoms consistent with an adjustment disorder, he lost the ability to go out on his own due to his fear of being attacked.

…

163. The Panel consider for the purpose of WPI assessment, Mr Buestami's psychological condition has stabilised, and the level of psychological function is not likely to alter to a significant degree, with or without treatment, in the next 12 months, and MMI has been reached.”

18. The Panel then referred to causation and their obligation with respect to it, which is largely the subject of ground 1.

19. The Panel then came to assess the degree of permanent impairment. It did so by reference to the psychiatric impairment rating scales which are contained in the Motor Accident Permanent Impairment Guidelines (“the Guidelines”). Of central relevance is that the degree of permanent impairment for the category of travel was classified as number 2. The reason for that decision included the following:

“Mr Buestami is anxious when he leaves home and can go out independently. He gave up driving due to his anxiety.

His subsequent psychological injury caused unrelated travel impairments, which are set aside. He did not have a fear to go out alone, before the dog attack, and this impairment is not an aggravation of the earlier injury as there was no prior fear related to dogs.”

20. Together with the other five categories, an aggregate score of 15 was reached, which resulted in a whole person impairment of 8%.

21. Under the heading in the report "Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment", the Panel recorded:

“202. He achieved full remission and his pre-MVA WPI was 0%.

203. He developed an adjustment disorder after a dog bite, and developed further psychiatric impairment which has been set aside as it was unrelated to the subject accident.”

Ground 2 - Discernment

22. The plaintiff submits, both in writing and orally, in accordance with ground 2 of the Summons, that the Review Panel constructively failed to exercise its jurisdiction and its statutory function because it misapprehended and misapplied the Guidelines by undertaking an assessment in a way which did not follow the obligations contained in cl 1.21 of the Guidelines, cl 1.34 of the Guidelines, cl 1.220 of the Guidelines and Figure 2.

23. It seems to me that the Guidelines are quite clear in this area, and I will refer to them. Clause 1.21 is in the following form:

“The evaluation should only consider the impairment as it is at the time of the assessment.”

24. Clause 1.34 provides as follows under the heading "Subsequent Injuries":

“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of the subsequent impairment, its possible presence should be ignored.”

25. Clause 1.220 of the Guidelines provides that the standard form, which is in Figure 2, must be used when calculating permanent psychiatric impairment and by the use of the psychiatric impairment rating scale.

26. Figure 2, which appears at page 52 of the Guidelines applicable at the time, is, it must be said, disarmingly simple. It requires the identity and specification of the psychiatric diagnoses, then with respect to each of the six categories on the psychiatric impairment rating scale, a fixing of their class and the reasons for that decision. It then requires, in accordance with the provisions of the Guidelines, a calculation of the percentage whole person impairment relating to the aggregate score determined by reference to those classifications.

27. The following then occurs: that where there is any pre-existing or subsequent impairment, if either or both are applicable, a percentage whole person impairment is determined in the same way as it is with respect to the determination of the impairment as a whole. The classes are listed, a score is determined, a percentage whole person impairment is identified and, where the review panel thinks it appropriate, a final whole person impairment percentage is fixed by reference to the first calculation, namely, the existing impairment of the whole person, followed by a deduction for the whole person impairment referable to the subsequent event. I attach a copy of Figure 2 to this judgment labelled “Annexure A”.

28. However, that is not what happened in the challenged Review Assessment Panel’s Certificate.

29. First, contrary to the obligation in cl 1.21 of the Guidelines, the Review Panel at no time determined the extent of the whole person impairment as it existed at the time of their assessment. Secondly, at no time, as required by cl 1.34 of the Guidelines, did the Review Panel determine the whole person impairment relating to the subsequent event, namely, the unrelated event of a dog bite; nor did it then undertake a calculation which reflected the obligations in the Guidelines as appear in diagrammatic form in Figure 2.

30. Rather, in a convoluted way, contrary to that provided in the Guidelines, the Review Panel sought to “set aside”, to use its terms, any impairment related to the subsequent dog bite event because the Review Panel concluded that the adjustment disorder which it diagnosed as relating to that event was wholly unrelated to the motor vehicle accident.

31. Accordingly, the result produced by the Review Panel was not an assessment which accorded with either of the requirements of the Guidelines. It clearly mistook its obligation, and it has produced a Certificate which does not reflect the jurisdiction which it is obliged to exercise. It is erroneous at law, and it constitutes a failure to properly exercise its jurisdiction.

32. For that reason alone, the review panel Certificate must be set aside and the relief sought by the plaintiff granted.

Ground 1

33. I should say something about ground 1. Ground 1 involved a somewhat complex submission in which the plaintiff sought to engage an obligation said to exist at common law as a consequence of a number of decisions, but particularly the decision of Malcolm CJ in the Supreme Court of Western Australia in State Government Insurance Commission v Oakley (1990) 10 MVR 570, the decision of the New South Wales Court of Appeal in Falco v Aiyaz*; Falco v Falzon* [2015] NSWCA 202; (2015) 71 MVR 454 and the decision of the Wright J in Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; (2020) 93 MVR 378.

34. In the absence of any submissions from any contradicting party, and in light of the complexity of the issues surrounding causation which the plaintiff sought to raise, it is best that I express no opinion on these complex issues. It is sufficient for me to say that it is difficult to accept that, even if the plaintiff’s arguments are correct, and they may well be, any error on the face of the record is apparent. However, as I have earlier said, I do not need to consider the merits of ground 1 because, even if upheld, it would lead to no different consequence.

Conclusion

35. I conclude by expressing my view that it is unfortunate that the Review Panel, of which a lawyer was a member, does not seem to have undertaken its ordinary and routine task of making an assessment which accorded with the procedure mandated by the Guidelines. Perhaps it is the absence of any separate report setting out the assessment of the two medical members which led to utter confusion about the proper exercise of its jurisdiction when the Panel produced its report. However, there is no need to reach a final conclusion about that.

Orders

36. The plaintiff is entitled to the relief he sought and, accordingly, I make the following orders:

37. Order in the nature of certiorari quashing the decision and the consequent Review Panel Certificate of the second defendant, namely the certificate and decision dated 12 September 2024 in matter R‑M10541496/22.

38. Remit the matter to the third defendant, the President of the Personal Injury Commission of New South Wales, for re-allocation of the matter to a differently constituted Review Panel for determination of the matter according to law.

39. No order as to costs.

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Annexure “A”