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Cases Cited: Abdal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 478
Ballas v Dept of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504
Ferguson v State of New South Wales [2017] NSWSC 887
Heise v Employers Mutual Limited [2022] NSWCA 283
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
Tasevski v Westpac Banking Corp [2024] NSWSC 401
Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited: Motor Accident Permanent Impairment Guidelines, Version 1, 1 June 2018, cll 1.2, 1.18, 1.21, 1.35, 1.201–1.224
NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021

Category: Principal judgment

Parties: John Georges (Plaintiff)
Alicia Sarah Musico (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant) (Submitting appearance)
Review Panel Constituted Under Section 63 of the Motor Accidents Compensation ACT 1999 (Third Defendant) (Submitting appearance)

Representation: Counsel:
EG Romaniuk SC and G Young (Plaintiff)
J Gumbert (First Defendant)
Solicitors:
JP Law Solicitors (Plaintiff)
Sparke Helmore Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2025/00164959

Publication restriction: Nil

JUDGMENT

1. The plaintiff (Mr Georges) seeks judicial review of a decision dated 31 January 2025 by a review panel (Review Panel) exercising jurisdiction under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). The Review Panel revoked a certificate dated 28 July 2023 by Medical Assessor Canaris, who had assessed the plaintiff’s permanent impairment resulting from a motor traffic accident at 20%. The Review Panel substituted a medical assessment certificate (MAC) certifying that the claimant has a 5% impairment as a result of the psychological injury caused by the accident. This meant that, under s 131 of the MAC Act, no damages can be awarded to Mr Georges for non-economic loss.

2. Mr Georges claims that the Review Panel’s reasons, which total 65 pages, reveal both jurisdictional error and error of law on the face of the record.

3. For the following reasons, the amended summons filed 22 May 2025 will be dismissed, with costs.

Legislative framework

4. Mr Georges and the first defendant’s insurer (AAI Limited) were in dispute as to whether the degree of his permanent impairment as a result of the injury caused by the motor accident was greater than 10%. Section 132 of the MAC Act provides that damages may not be awarded for non-economic loss until a medical assessor appointed by the Personal Injury Commission of New South Wales (the Commission) has carried out an assessment of the medical assessment matter.

5. A medical dispute about a medical assessment matter can be referred to the Commission for assessment, pursuant to Pt 3.4 of the MAC Act. The President of the Commission appoints medical assessors to assess medical disputes, pursuant to s 33(1)(b) of the Personal Injury Commission Act 2020 (NSW).

6. Medical assessors and review panels are required by s 133(2) of the MAC Act to make an assessment of the degree of permanent impairment in accordance with guidelines issued by the State Insurance Regulatory Authority (SIRA) under s 44(1)(c) of the MAC Act. SIRA has published Motor Accident Permanent Impairment Guidelines (PI Guidelines). Version 1 of the PI Guidelines effective from 1 June 2018 applied to the medical assessments carried out by both the Medical Assessor and the Review Panel in the present proceeding.

7. A medical assessor to whom a dispute has been referred is required to issue a MAC pursuant to s 61 of the MAC Act. Following the issue of a certificate, a matter may be referred to a review panel by the President but “only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application” (s 63(2B)). The review panel must be constituted by three persons chosen by the President, two of whom must be medical assessors and the third a member assigned to the Commission’s Motor Accident Division (s 63(3)). Significantly, in conducting a review, a review panel is not limited to a review only of that aspect of the assessment that is alleged to be incorrect. The review panel is required to conduct “a new assessment of all the matters with which the medical assessment is concerned” (s 63(3A)).

8. This may be contrasted with the position under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act), where the scope of a medical appeal panel’s review is narrower than that under the MAC Act because the review is “limited to the grounds of appeal on which the appeal is made” (see s 328(2)). The available grounds of appeal are stated in s 327(3) of that Act, and include that the “assessment was made on the basis of incorrect criteria” and that “the medical assessment certificate contains a demonstrable error”. No equivalent provisions are to be found in the otherwise broadly similar provisions concerning applications for review under the MAC Act. As will be developed, this difference between the two schemes is important in understanding and applying the decision of the Court of Appeal in Ballas v Dept of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86.

9. There are, however, substantial similarities in those parts of the PI Guidelines and the guidelines under the workers compensation scheme relating to the permanent impairment rating scale (PIRS). There are some differences (for example, in relation to the category of adaptation). However, such differences do not appear to be significant for the purpose of this proceeding.

10. It is well to set out in full some relevant parts of s 44 of the MAC Act (as in force at the time of Mr Georges’ accident) which contains several provisions illuminating the legal status of the PI Guidelines:

44 Medical Guidelines of Authority

(1) The Authority may issue guidelines (Motor Accidents Medical Guidelines) with respect to the following:

…

(c) the assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident,

(d) the procedures for the referral of disputes for assessment or review of assessments, and the procedure for assessment and review of assessments, under Part 3.4.

(2) The Authority may amend, revoke or replace Motor Accidents Medical Guidelines.

(3) Motor Accidents Medical Guidelines may adopt the provisions of other publications, whether with or without modification or addition and whether in force at a particular time or from time to time.

(4) Motor Accidents Medical Guidelines (including any amendment, revocation or replacement) are to be published in the Gazette and take effect on the day of that publication or, if a later day is specified in the Guidelines for that purpose, on the day so specified.

(5) Motor Accidents Medical Guidelines:

(a) are not to be construed as requiring medical treatment to be carried out in accordance with Motor Accidents Medical Guidelines, and

(b) are to be consistent with a high standard of medical care, dental care, rehabilitation, aftercare and continuing care as exists in the community at that time.

(6) Motor Accidents Medical Guidelines must be developed in consultation with relevant medical colleges, including the Royal Australasian College of Physicians, the Royal Australasian College of Surgeons, the Royal Australian College of General Practitioners, the Australian Orthopaedic Association, the para-medical professional associations and other relevant colleges and associations.

(7) Sections 40 (Notice of statutory rules to be tabled) and 41 (Disallowance of statutory rules) of the Interpretation Act 1987 apply to a guideline under this section in the same way as those sections apply to a statutory rule.

11. The introduction to the relevant PI Guidelines states that they are “based on” a 1995 publication by the American Medical Association which is known as the “AMA4 Guides”, but there are several significant departures, as noted in cl 1.2 of the PI Guidelines (italics and underlining in original, bold emphasis added):

1.2 These Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (third printing, 1995) (AMA4 Guides). However, there are some very significant departures from that document in these Guidelines. A medical assessor undertaking impairment assessments for the purposes of the Act must read these Guidelines in conjunction with the AMA4 Guides. These Guidelines are definitive with regard to the matters they address. Where they are silent on an issue, the AMA4 Guides should be followed. In particular, chapters 1 and 2 of the AMA4 Guides should be read carefully in conjunction with clauses 1.1 to 1.46 of these Guidelines. Some of the examples in the AMA4 Guides are not valid for the assessment of impairment under the Act. It may be helpful for medical assessors to mark their working copy of the AMA4 Guides with the changes required by these Guidelines.

12. Reference should also be made to cl 1.21, which provides that the “evaluation should only consider the impairment as it is at the time of the assessment”.

13. Clause 1.35 states that psychiatric impairment “is assessed in accordance with ‘Mental and behavioural disorders’ within these Guidelines”.

14. Despite their length, it is desirable to set out some parts of the PI Guidelines relating to “Mental and behavioural disorders”, which contain and describe the PIRS (noting the emphasis in cl 1.220):

Introduction

1.201 Psychiatric disorders have complex effects on the individual, and impairment must be assessed by a psychiatrist.

1.202 The AMA4 Guides do not give percentages of psychiatric impairment in Chapter 14 (pages 291–302), which deals with mental and behavioural disorders. Medically determinable impairments in thinking, affect, intelligence, perception, judgement and behaviour are difficult to translate into functional limitations.

1.203 The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA4 Guides (pages 291–302) is to be used for background or reference only.

1.204 The PIRS draws heavily on Chapter 14 of the AMA4 Guides.

1.205 The AMA4 Guides provide a framework to determine whether a motor accident has caused psychiatric impairment. They bridge the gap between impairment and disability by focusing on four areas or aspects of functioning:

1.205.1 activities of daily living (ADL). Three aspects of ADL are used in the PIRS system

1.205.2 social functioning

1.205.3 concentration, persistence and pace

1.205.4 adaptation.

1.206 These areas are described in detail on pages 294–295 of the AMA4 Guides.

1.207 Activities of daily living include self-care, personal hygiene, communication, ambulation, travel and social and recreational activities.

1.208 Social functioning refers to the capacity to get along with others and communicate effectively.

1.209 Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings.

1.210 Adaptation (also called deterioration or de-compensation in work or work-like settings) refers to the repeated failure to adapt to stressful circumstances.

1.211 Impairment is divided into five classes ranging from no impairment to extreme impairment.

1.212 Mental and behavioural disorders resulting from an organic brain injury are most suitably assessed as an organic problem under clause 1.156 to 1.176 in these Guidelines.

…

The psychiatric impairment rating scale

1.219 Behavioural consequences of psychiatric disorders are assessed on six areas of function, each of which evaluates an area of functional impairment:

1.219.1 self-care and personal hygiene (Table 11)

1.219.2 social and recreational activities (Table 12)

1.219.3 travel (Table 13)

1.219.4 social functioning (relationships) (Table 14)

1.219.5 concentration, persistence and pace (Table 15)

1.219.6 adaptation (Table 16).

1.220 Impairment in each area of function is rated using class descriptors. Classes range from 1 to 5 according to severity. The standard form (Figure 2) must be used when scoring the PIRS. The classes in each area of function are described through the use of common examples. These are intended to be illustrative rather than literal criteria. The medical assessor should obtain a history of the injured person’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The medical assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors.

1.221 Where adaptation cannot be assessed by reference to work or a work-like setting, consideration must be given to the injured person’s usual pre-injury roles and functions such as caring for others, housekeeping, managing personal/family finances, voluntary work, education/study or the discharge of other obligations and responsibilities.

Adjustment for the effects of treatment

1.222 An adjustment for the effects of prescribed treatment may be made by the medical assessor if all of the following requirements are met:

1.222.1 there is research evidence demonstrating that the treatment prescribed is effective for the injured person’s diagnosed psychiatric condition

1.222.2 the medical assessor is satisfied that the treatment has been appropriate, for example, medication has been taken in the appropriate dose and duration

1.222.3 there is clear clinical evidence that the treatment has been effective, that is, the injured person’s symptoms have improved and/or functioning has improved, and

1.222.4 it is the clinical judgement of the medical assessor that ceasing treatment will result in a deterioration of symptoms and/or a worsening in function.

1.223 The medical assessor may increase the percentage of WPI by:

1223.1 0% WPI (no or negligible treatment effect)

1223.2 1% WPI (a mild treatment effect)

1223.3 2% WPI (a moderate treatment effect), or

1223.4 3% WPI (a full remission).

1.224 This clause does not apply to the use of analgesics, anti-inflammatory or antidepressant drugs for analgesia or pain management.

15. Various Tables, as referred to in cl 1.219 of the PI Guidelines, are then set out (they are reproduced at [33]ff below).

16. I will return below to address the legal status of the PI Guidelines and some relevant legal principles concerning their construction and application.

Background matters summarised

17. On 22 March 2017, Mr Georges was rear-ended by Ms Muscio while stopped at traffic lights, causing him to experience neck pain, headache and left shoulder pain radiating to his left arm and hand. He was subsequently diagnosed with spinal injury and underwent surgical procedures, which appear not to have been successful in alleviating his ongoing pain.

18. Mr Georges made a claim for damages under the MAC Act for both physical and psychological injuries. Subsequently, a dispute arose with AAI concerning, amongst other things, whether Mr Georges’ psychological injuries had resulted in a degree of impairment of greater or less than 10%.

(a) Medical Assessor Canaris’ MAC

19. In submissions to the Medical Assessor dated 23 September 2022, AAI contended that Mr Georges had a pre-accident history of psychiatric conditions and that the symptoms which arose after the accident had not been caused by it. AAI referred to the fact that, as at 5 August 2022, Mr Georges was receiving carer’s benefits for caring for his wife. It said that various records demonstrated that his wife’s health was a significant source of stress for Mr Georges. It also referred to the fact that Mr Georges’ business, which he had launched in October 2012, had gone into voluntary liquidation and been deregistered by 31 December 2021, following a commercial dispute with his partners which resulted in litigation. This was said to be the primary cause of Mr Georges’ psychological symptoms.

20. In reply submissions to the Medical Assessor dated 10 January 2023, Mr Georges denied that there was significant evidence of his pre-accident psychiatric conditions. He acknowledged that he experienced stress in relation to his family and business, but maintained that he was “dealing with” these issues prior to the accident. He also described the various medical procedures and treatments which he had undergone following the accident.

21. On 28 July 2023, Medical Assessor Canaris issued his MAC. He certified that the accident had caused Mr Georges to suffer persistent depressive disorder with persisting major depressive episodes and anxious distress, giving rise to a 20% WPI (which included an adjustment upwards of 1% for the effects of prescribed treatment under cl 1.222). He also certified that the accident had caused somatic symptom disorder with predominant pain, but considered this did not give rise to any WPI. Medical Assessor Canaris’ essential findings were set out in the following PIRS rating table, which was attached to his MAC:

| Category | Class | Reasons for Decision | | 1. Self-Care and Personal Hygiene | 2 | He does not bother changing his clothes unless he has an appointment or assessment saying there is no point as he is in his room all day. He night shower once every two or three days saying, "My wife will get angry and say I have to get up and shower - that's a big job - if I have to get up and brush my teeth" and he sometimes does not brush his teeth blaming this on pain. He said he needs physical help with showering "but I hate bothering people". He does not feel like eating blaming this on his heartburn and reflux "but then I get really hungry, and I overeat, and I eat the wrong food". Comment: Some impairment in this domain is attributable to pain but some is also attributable to his psychiatric condition - hence Class 2 in this category. | | 2. Social and Recreational Activities | 3 | He does not go out anywhere socially and "I've lost the people that were around me - even my own brother - I haven't heard from him for a long time - people don't check in on me - I have pain and I feel awkward - I'm burping, and I stutter a lot and my face always looks angry because I'm dealing with the pain ... ". His anxiety is a major contributor to his reluctance to go out socially. Comment: I considered the contribution of pain in this category. On balance, he has Class 3 attributable to his depression even when pain is taken into account. | | 3. Travel | 2 | He is very limited in his driving and might venture out to get his medication "if I'm not in extreme pain or drugged out on medication". He "won't go out of local areas". His anxiety contributes significantly to his reluctance to travel. Comment: I have allowed for the contribution of pain in this domain. | | 4. Social Functioning | 2 | He is very irritable "and I spend the very large majority of my time on my own". He isolates from his family and speaks to them "briefly". There have been arguments because of his irritability and impatience and his family are very frustrated with him. His wife "is a good-hearted lady and she won't leave me - she helps me ... I can't fend for myself". His wife has resumed sleeping in his room "since my heart attack" because his cardiologist has said he is still at risk. Comment: His family relationships are strained but still intact. | | 5. Concentration, Persistence and Pace | 3 | He said, "I don't have the energy to do anything" and he is "exhausted - I have to brush my teeth, it's too much ... ". His medication leave him feeling "very groggy - if I'm in extreme pain, my concentration is not very good - when the pain is at a medium or I've taken my medication, I'm just brain fogged - I get about three hours of sleep a night. .. it's my pain and my reflux - it just wakes me up - it's burning ... ". When his pain is better, he "can go down the street and get my medication ... I'm always at some level suppressing pain ... ". At his best, he can watch a documentary or a show but would often have to rewind "because my brain has gone somewhere else... this week we watched a movie with my wife ... the next day I couldn't remember the movie or any of the characters ... ". Comment: While pain undoubtedly contributes to his impairment in this domain, the history of on offer suggests that his concentration is at least moderately impaired even when pain is relatively well controlled. I noted in this context his manifest agitation over the course of the interview. I also noted that he sometimes lost track of what he was saying or repeated himself which seemed a function of his high anxiety very much. | | 6. Adaptation | 5 | He is on the disability support pension. He has spent a lot of time thinking of what he could do "but I don't know what I can do anymore - like I tell you, even brushing my teeth is a challenge - a chore - I'm groggy with the medication - and I blow up very easily - who is going to put me on ... ". I noted in this context his lack of energy, his poor concentration, his difficulties with travel, and his social withdrawal. Comment: I also noted his agitation over the course of the interview. His impairment in this category appears predominantly attributable to his depression even when the contribution of pain is considered. |

(b) Review Panel**’s MAC**

22. Following receipt of Medical Assessor Canaris’ MAC, AAI applied under s 63 of the MAC Act for referral of the assessment to a review panel. It submitted, inter alia, that Medical Assessor Canaris failed to provide a proper path of reasoning for his findings in relation to the cause of Mr Georges’ psychiatric impairment following the accident. On 13 October 2023, a delegate of the President of the Commission granted the application and referred the matter to the Review Panel. The delegate was satisfied there was reasonable cause to suspect that Dr Canaris’ assessment was materially incorrect.

23. In submissions to the Review Panel dated 14 October 2024, AAI again emphasised Mr Georges’ pre-accident history of psychiatric conditions, noting that psychological symptoms, treatment and medications had been recorded in Mr Georges’ medical records two months prior to the accident. The AAI also again sought to characterise Mr Georges’ business failures and financial stress as the primary cause of his psychological injuries, together with his wife’s ill health. In light of these factors, AAI submitted that Mr Georges’ psychological impairment would have been largely the same but for the injury. It submitted that it was incumbent upon the Review Panel to deduct Mr Georges’ pre-existing psychological impairment from any impairment caused by the accident.

24. In responsive submissions to the Review Panel dated 28 October 2024, Mr Georges denied there was significant evidence of his pre-accident psychological symptoms. He submitted that any pre-accident psychological symptoms were a reasonable response to his circumstances at the time and did not significantly affect his capacity to carry out personal and professional duties prior to the accident. Mr Georges also denied that there were significant business disputes prior to the accident and claimed that it was the “major psychological injuries” caused by the accident which led to business troubles.

25. On 22 October 2024, the Review Panel notified the parties that it intended to re-examine Mr Georges virtually via Microsoft Teams. An application by AAI opposing this course of action was dismissed by the Review Panel which, in reasons given on 5 November 2024, explained that it was satisfied that AAI’s concerns could be adequately addressed through a virtual assessment. The virtual re-examination of Mr Georges took place on 19 December 2024. It was conducted by the two medical assessors (who were both psychiatrists) on the three-person Review Panel.

26. On 31 January 2025, the Review Panel revoked Medical Assessor Canaris’ MAC and certified that Mr Georges’ degree of impairment was not greater than 10%. In its lengthy statement of reasons, the Review Panel stated at [48] that it had considered all the material put before it in a joint bundle which totalled nearly 1000 pages. It comprehensively summarised Mr Georges’ medical records, the medico-legal evidence, Mr Georges’ business and litigation records and the parties’ written submissions. Its essential findings following the re-examination of Mr Georges were set out in the following PIRS rating table:

| Category | Class | Reasons for Decision | | 1. Self-Care and Personal Hygiene | 2 | The claimant said he has two meals a day and his weight has been stable for more than 12 months now. He avoids some foods but binge-eats. He showers a few times a week and does not need prompting, but needs physical assistance. His physical injuries and pain are not assessable in the PIRS. There is no evidence of significant neglect of self-care on mental state examination. He has a mild impairment. | | 2. Social and Recreational Activities | 2 | The claimant wants to do things and go fishing, but cannot do it physically. His physical injuries and pain are not assessable in the PIRS. He can enjoy regular activities which do not aggravate his physical injuries and pain such as watching TV. From a psychological perspective, there is mild impairment. | | 3. Travel | 1 | He can drive everywhere from a psychological perspective. His driving is only limited by his physical injuries and pain, which are not assessable in the PlRS. Medication side effects are not assessable. There is no psychological deficit | | 4. Social Functioning | 2 | The claimant's relationship with his wife and children have deteriorated but remain intact. He is close to his parents but not his siblings. He does not talk to any friends. He tried to reach out but they did not respond. He has a mild impairment | | 5. Concentration, Persistence and Pace | 2 | The claimant's medication causes concentration difficulties, and these are not assessable in the PIRS. Off Seroquel and Amitriptyline, he exhibited reasonably good concentration, persistence and pace during the assessment for 90 minutes, which is an intellectually demanding task. He has a mild impairment. | | 6. Adaptation | 3 | The claimant worked after the accident until physically he could not continue his business. He has been on a disability support pension from Centrelink for around 2 years for his physical injury and psychological injury. From a psychological perspective, he has a partial work capacity, and can contribute to the family life roles, around 20 hours per week. He has a moderate impairment. |

27. Various matters in this table were also addressed in the body of the Review Panel’s reasons. It is well to reproduce a number of those passages which are of particular relevance. In a section of the statement of reasons headed “Clinical Examination”, which plainly referred to the examination conducted by the two psychiatrists on 19 December 2024, the Review Panel made the following observations as to Mr Georges’ “current functioning”:

202. The claimant is 50 years old and living with his wife and children. He said he drives locally, 3-4km to the shopping centre at Castle Hill and shops, but cannot carry heavy items. He buys milk and his medication. He said he cannot focus due to heavy analgesic medications and feels '"groggy". When in severe pain, he does not drive. Aside from analgesic medications and physical injuries and pain affecting his driving, he identified no other problems driving. Specifically, his driving is not affected by his psychological condition.

…

205. He does not use the computer. His wife and sons help him with his emails. He googles things on his phone on the couch. He goes out to the shops on his own sometimes.

206. He has not spoken to or seen his friends for years and "a long time". He said he tried to reach out but people avoided him because of the way he is and he gets irritated.

207. He checks in on his mother and father, and sees them a couple of times a week. He visits for 10 minutes, has coffee with them and then returns home. He is not close to his siblings, and said they got angry with him. He does not know why, and this was a couple of years ago.

208. The claimant said he does not have much to do with his wife and sons, generally only talking at home. He said they have their lives and their work. His two eldest are working full­time."

….

211. The Medical Assessors discussed with the claimant their opinion that his concentration at the re-examination had been good. He acknowledged this and explained he had not taken his Seroquel or Amitriptyline that day. These are the medications that cause sedation and concentration difficulties.

212. In terms of his previous recreation and hobbies, the claimant said he used to enjoy going to holidays, fishing, training, interacting with people and going to business meetings. and going places. The claimant said he can't do these activities now physically because he cannot fly in an airplane and he has restricted movement. He said he cannot fish because of his physical restrictions. He reported he wants to go and do things and go on holiday, but his family doesn't want to go with him because he gets angry.

213. He said that mostly the only people he talked to are his wife and three sons but even then, they don't communicate much."

28. Commenting on Mr Georges’ “employment history” at page 51 of its reasons, the Review Panel made the following comments:

216. After high school, the claimant studied a Diploma of Logistics and later completed a degree in Finance. He had been self-employed since 2012 and said he also did charity work, feeding homeless people at the same time, which was not paid work.

217. In his business he said he was doing sales work, marketing work, and facilitating the production of products. He was on the road a lot, driving to different places for work.

218. Since the accident, he had not worked at all. He said because of his physical restrictions and medication side effects he cannot work.

219. He has been on a disability support pension from Centrelink for about two years for a combination of physical and psychiatric disability.

220. He hasn't done the charity work since the accident. He said that he used to load the van with food and then drive to different places for homeless people, but since the accident, he cannot carry things and load the van, and he finds that he is not safe to be driving the van on medication, particularly Seroquel and Amitriptyline, which are quite sedating.

29. Commenting on the effect of Mr Georges’ treatment at page 61 of its reasons, the Review Panel observed:

234. In the opinion of the Medical Assessors’ the claimant’s treatment has had negligible effect in symptomatic relief and in functional improvement. Should the claimant’s prescribed psychiatric medication be weaned and withdrawn the Medical Assessors are of the opinion that the psychological injury would be unlikely to deteriorate. For these reasons the assessment of treatment effect was assessed as 0% whole person impairment.

30. Finally, and importantly, in concluding that the degree of permanent impairment of Mr Georges as a result of the psychological injury caused by the accident was not greater than 10% WPI, the Review Panel made abundantly clear that this conclusion relied heavily on the clinical judgment of the two psychiatrists on the Review Panel. This is reflected in the following paragraphs from the reasons:

255. The clinical judgement of the medical members of the Panel, both of whom are psychiatrists, is the most important tool in the application of the PIRS: cl 1.217 Impairment Guidelines. The Panel notes that the evaluation of impairment should only consider the impairment as it is at the time of the assessment: cl 1.21 Impairment Guidelines.

256. The Panel agrees with and adopts the precise examination findings and conclusions of its medical members based on their examination of the claimant, and their specific findings with respect to each PIRS category and permanent impairment. The Panel finds that the claimant has a permanent impairment of 6% as a result of the adjustment disorder.

The legal status of the PI Guidelines and some related legal principles

31. It appeared to be common ground that the PI Guidelines have the effect of legislation (see, by way of analogy, Ballas at [97] regarding the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed, 1 March 2021 (Workers Compensation Guidelines)). I am satisfied that the PI Guidelines also have this effect. They are given statutory force by s 133(2) of the MAC Act (see Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [16]–[18] per Basten JA, Macfarlan JA agreeing, noting that that case dealt with an earlier iteration of the guidelines).

32. Moreover, as noted above, the PI Guidelines must be published in the Gazette (s 44(4) of the MAC Act) and it is expressly provided in s 44(7) that ss 40 and 41 of the Interpretation Act 1987 (NSW) (which relate respectively to the tabling of statutory rules and their disallowance) apply to the PI Guidelines in the same way as those provisions would apply to a statutory rule. These features support a conclusion that, despite the drafting of the PI Guidelines, which is not in the form of primary or secondary legislation, the PI Guidelines have the same effect as primary or secondary legislation. Nevertheless, in construing the PI Guidelines, appropriate allowance should be made for their form (see, by way of analogy, Heise v Employers Mutual Limited [2022] NSWCA 283 at [57] per Kirk JA, Mitchelmore JA and Griffiths AJA agreeing and Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095 at [30] per Griffiths AJ).

33. Of particular relevance for present purposes are cll 1.219 and 1.220 of the PI Guidelines, which deal with the PIRS (set out at [14] above). Clause 1.219 provides that the behavioural consequences of psychiatric disorders are to be assessed on six scales, each of which evaluates an area of functional impairment. Clause 1.220 provides that impairment across each of these scales is to be rated using class descriptors, with classes ranging in ascending order from 1 to 5, in accordance with severity. The “class descriptors” (sometimes described as “exemplars”) are contained in the tables referred to cl 1.219. Because Mr Georges complains about his classification in respect of all six of these tables, it is necessary to set out each of them individually, beginning with Table 11, which concerns self-care and personal hygiene. It provides:

Class 1 No deficit, or minor deficit attributable to normal variation in the general population.

Class 2 Mild impairment. Able to live independently and look after self adequately, although may look unkempt occasionally. Sometimes misses a meal or relies on takeaway food.

Class 3 Moderate impairment. Cannot live independently without regular support. Needs prompting to shower daily and wear clean clothes. Cannot prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2–3 times per week to ensure minimum level of hygiene and nutrition.

Class 4 Severe impairment. Needs supervised residential care. If unsupervised, may accidentally or purposefully hurt self.

Class 5 Totally impaired. Needs assistance with basic functions, such as feeding and toileting.

34. Table 12, which concerns social and recreational activities, provides:

Class 1 No deficit or minor deficit attributable to normal variation in the general population. Able to go out regularly to cinemas, restaurants or other recreational venues. Belongs to clubs or associations and is actively involved with these.

Class 2 Mild impairment. Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team.

Class 3 Moderate impairment. Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn.

Class 4 Severe impairment. Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or the garden when others visit family or flatmate.

Class 5 Totally impaired. Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member.

35. Table 13, which concerns travel, provides as follows:

Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to travel to new environments without supervision.

Class 2 Mild impairment. Able to travel without support person, but only in a familiar area such as local shops or visiting a neighbour.

Class 3 Moderate impairment. Unable to travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment.

Class 4 Severe impairment. Finds it extremely uncomfortable to leave own residence even with a trusted person.

Class 5 Totally impaired. Cannot be left unsupervised, even at home. May require two or more persons to supervise when travelling.

36. Table 14, which concerns social functioning, provides:

Class 1 No deficit, or minor deficit attributable to normal variation in the general population. No difficulty in forming and sustaining relationships; for example a partner or close friendships lasting years.

Class 2 Mild impairment. Existing relationships strained. Tension and arguments with partner or close family member, loss of some friendships.

Class 3 Moderate impairment. Previously established relationships severely strained, evidenced for example by periods of separation or domestic violence. Partner, relatives or community services looking after children.

Class 4 Severe impairment. Unable to form or sustain long-term relationships. Pre-existing relationships ended; for example, lost partner, close friends. Unable to care for dependants; for example, own children, elderly parent.

Class 5 Totally impaired. Unable to function within society. Living away from populated areas, actively avoids social contact.

37. Table 15, which concerns concentration, persistence and pace, provides:

Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe.

Class 2 Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes; for example, then feels fatigued or develops headache.

Class 3 Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting.

Class 4 Severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services.

Class 5 Totally impaired. Needs constant supervision and assistance within an institutional setting.

38. Finally, Table 16, which concerns adaptation, provides as follows:

Class 1 No deficit, or minor deficit attributable to normal variation in the general population. Able to work full time. Duties and performance are consistent with injured person’s education and training. The injured person is able to cope with the normal demands of the job.

Class 2 Mild impairment. Able to work full time in a different environment. The duties require comparable skill and intellect. Can work in the same position, but no more than 20 hours per week; for example, no longer happy to work with specific persons, work in a specific location due to travel required.

Class 3 Moderate impairment. Cannot work at all in same position as previously. Can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different; for example, less stressful.

Class 4 Severe impairment. Cannot work more than one or two days at a time, less than 20 hours per fortnight. Pace is reduced, attendance is erratic.

Class 5 Totally impaired. Cannot work at all.

39. The task of a medical assessor in assessing psychiatric impairment under the broadly similar PIRS in the Workers Compensation Guidelines was considered by the Court of Appeal in Ballas. At [93]-[94] of the joint judgment of Bell P and Payne JA (Emmett AJA agreeing) it was stated:

[93] Whilst it is no doubt correct that an AMS must exercise a degree of clinical judgment in assigning a class of seriousness to each area which he or she is required to address in completing a medical assessment, the characterisation of conduct as going to “social and recreational activities” on the one hand, as opposed to any of the other five scales on the other hand, is not a matter of discretion.

[94] Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, ie whether it goes to “self care and personal hygiene”, “social and recreational activities”, “travel”, “social functioning (relationships)”, “concentration, persistence and pace” or “employability”. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the AMS taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.

40. Relying on Ballas, Mr Georges submits that the Review Panel’s application of the PIRS should not be understood to involve the exercise of discretion and that this Court is therefore obliged to apply the correctness standard of review, familiar from cases such as Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9. However, it is clear that the Court’s remarks in Ballas were directed to the characterisation of conduct as falling within one as opposed to another category of functioning. Their Honours did not say that the decision to assign one seriousness classification rather than another attracts a correctness standard of review. Indeed, it was recognised that this exercise involves “a degree of clinical judgment” (at [93]).

41. There is also good reason why, in a judicial review, appropriate allowance must be made for the clinical judgment of a medical assessor or review panel in applying a PIRS. As Basten AJ observed in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64] (again with reference to the PIRS in the Workers Compensation Guidelines and with footnotes omitted):

…[T]he plaintiff complained that he had been placed in class 2, rather than class 3, with respect to social functioning. Two observations may be made about such a complaint. First, as the guidelines indicate, “[e]valuation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method”. It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself “the wrong question”, thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error.

42. His Honour made essentially the same point at [68], where he observed that mere disagreement with an outcome does not give rise to a basis for intervention because such a disagreement “relates to a factual assessment and, in its terms, engages no legal principle and therefore cannot demonstrate error of law on the face of the record”. That observation also extends to jurisdictional error.

43. I consider that these observations also apply to the PI Guidelines, which include the following significant provisions (emphasis added):

1.201 Psychiatric disorders have complex effects on the individual, and impairment must be assessed by a psychiatrist.

…

1.217 The scale must be used by a properly trained medical assessor. The psychiatrist’s clinical judgement is the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis, and based on the psychiatrist’s clinical experience.

44. Mr Georges also urges the Court to rely on Ferguson v State of New South Wales [2017] NSWSC 887 in considering the task of the Review Panel in applying the PI Guidelines. The medical appeal panel in that case was said to have erred in finding that it was a demonstrable error for the medical assessor to assess the plaintiff’s impairment in respect of “social functioning” as class 3 instead of class 2. A key issue was the manner in which the panel dealt with a “life partnership involving sexual intimacy”. The panel considered that the “evidence does not sustain a finding that the relationship is strained, rather that its nature may have altered” (at [26]). In reasoning in this way, Campbell J considered that the panel asked itself the wrong question, since “material alteration in the nature of a relationship may evince strain, even severe strain” (at [29]). His Honour said (emphasis in original, citations omitted):

[32] The Appeal panel also decided there was no material (no evidence) before the AMS which could support a Class 3 assessment in relation to social functioning. This is clearly a question of law …

[33] In my judgment the material before the AMS could support a Class 3 rating or assessment for impairment of social functioning; that is to say, a moderate impairment of social functioning. And the Appeal Panel’s decision that it could not is an error of law. Given that the Appeal Panel’s reasons form part of the record (s 69(4) Supreme Court Act 1970 (NSW)), the error is an error of law on the face of the record. Had that error of law not been made, the Appeal Panel’s decision might have been different by reason of the possibility that assessing the matter according to law it may then have confirmed the AMS’s assessment.

45. In Lancaster at [69], Basten AJ opined that “the Court’s reasoning in Ferguson was perilously close to a merit assessment of a factual issue. It provides no assistance.” I respectfully agree.

46. It will be necessary later to refer to some other important aspects of Lancaster because I consider Basten AJ’s judgment lends strong support to AAI’s stance in this proceeding. In particular, I regard Lancaster to be inconsistent with Wright J’s recent decision in Abdal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 478, upon which Mr Georges heavily relies.

47. It has been observed, in respect of the PIRS tables in the Workers Compensation Guidelines, that the descriptors or exemplars provided for each PIRS category of function are examples only and serve neither as the sole nor the minimum basis for assigning a particular class rating (see Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [40]). I agree with these observations and consider that they also apply to the PIRS in the PI Guidelines. Indeed, it is important not to lose sight of the fact that cl 1.220 of the PI Guidelines expressly states that the class descriptors “are intended to be illustrative rather than literal criteria.”

Consideration and disposition

48. Mr Georges complains about the Review Panel’s class rating in respect of each of the PIRS. In each case, his fundamental complaint is the same (without alteration):

The Review Panel misconstrued the exemplar descriptions and misconstrued how the rating task was to be done. The Review Panel did not make findings directed at the rating task with the effect that the findings made are not capable of being supportable on the material before it. The Review Panel, as such, treated the rating task as a discretionary matter.

49. Before addressing Mr Georges’ challenge to the Review Panel’s class ratings, it is desirable to address at the outset Mr Georges’ heavy reliance on two recent decisions of the Court, which senior counsel contends point heavily in Mr Georges’ favour.

50. The first is Schmidt AJ’s decision in Tasevski v Westpac Banking Corp [2024] NSWSC 401. It involved judicial review of a decision of a medical appeal panel under the 1998 Act. Her Honour held that the correctness standard applied, following the Court of Appeal’s decision in Ballas.

51. Significantly, in relation to the assignment of a class 2 to a particular scale, her Honour made the following observations at [30]-[32]:

Class assignment of one scale thus does not permit account to be taken of conduct relevant to another scale, because, as explained in Ballas, scale assignment of conduct can only have one conclusion. The statutory scheme thus requires an assessor to reach a conclusion about the correct class assignment for that scale, by considering the relevant conduct in light of the class description, which is given by way of example.

When the Guidelines require the assessor to assign particular conduct to the relevant scale and then assign each scale to one of the statutory classes, the assessor undoubtedly has to exercise a degree of clinical judgment: Ballas at [93]. That is what gives rise to the possibility that reasonable minds may differ. But still the exercise which the assessor has to undertake in arriving at a conclusion about the correct class is confined by the considerations which the Guidelines require. Assignment of conduct to the relevant class is not left to be determined as a matter of discretion.

This does leave open the possibility that the evidence relevant to a particular scale will establish that it lies on the border of two classes, in this case the mild and moderate classes…

52. The medical appeal panel there affirmed the medical assessor’s view that the plaintiff’s self and personal hygiene scale fell into class 2, whereas the plaintiff contended that the relevant evidence established that the correct classification was class 3.

53. It was common ground in Tasevski that the medical appeal panel had misunderstood its statutory task and misstated the effect of Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324. Her Honour also found at [54] that the appeal panel had overlooked that, following Ballas, it had to decide the correct identification of which scale or category of functional impairment particular conduct fits into and then confine the assessment to the relevant conduct. Furthermore, her Honour considered that although the appeal panel noted the plaintiff’s reliance on evidence about her age, sex, culture and long-term marital status as warranting a class 3, the appeal panel ultimately failed to take those matters into account.

54. I consider that Tasevski is distinguishable on the following grounds:

(a) The parties agreed there that the medical appeal panel’s description of its statutory function was “entirely wrong” and that the Panel had misstated the effect of the Court of Appeal’s decision in Vannini (as well as other authorities). (b) The only relevant category in dispute was that relating to self-care and personal hygiene as applied to a 62-year-old woman of Macedonian background. Schmidt AJ found that the medical appeal panel had failed to take into account the plaintiff’s age, sex, culture and long-term marital status, notwithstanding that she had raised those matters. Her Honour held that the failure to take those things into account was contrary to cl 11.12 of the Workers Compensation Guidelines. Although there is a similar requirement in cl 1.220 of the PI Guidelines, Mr Georges does not complain that this requirement was not met in his case. (c) The facts and circumstances in Tasevski are far removed from those here.

55. As noted above, Mr Georges also placed heavy reliance on Wright J’s recent decision in Abdal. In contrast with Tasevski, this was a decision which related to a medical assessment by the Commission for the purposes of both the motor accident and workers’ compensation schemes in NSW. The sole focus of the judicial review challenge there was in relation to the area of functional impairment under the PIRS category relating to “concentration, persistence and pace”. In brief, his Honour upheld the plaintiff’s claims that the medical assessor had made reviewable errors in not making findings as to factual matters that distinguish between a class 2 and class 3 rating for that PIRS category.

56. His Honour held at [93] that the medical assessor had committed the following jurisdictional errors and errors of law on the face of the record:

…

(1) wrongly relied on findings that did not provide a proper basis for making an assessment of the severity of impairment in respect of the “concentration, persistence and pace” functional area or for distinguishing between a class rating of 2 and a class rating of 3 in respect of that area of functional impairment, having failed to carry out his functions under the MAI Act in accordance with the MA Guidelines by obtaining necessary information during his interview with the plaintiff or by evaluating directly relevant medico-legal reports; and

(2) wrongly characterised the conduct or ability of the plaintiff to participate in an hour long audio-visual interview with the medical assessor “without overt cognitive difficulties” as going to the “concentration, persistence and pace” area of functional impairment as defined in the MA Guidelines and thus took into account an irrelevant consideration.

57. The steps in his Honour’s reasoning may be summarised as follows (noting that although a later iteration of the guidelines applied in Abdal, the provisions were substantially the same as the PI Guidelines here):

(a) Applying Ballas, the characterisation of conduct or ability as going to the area of impairment concerning concentration, persistence and pace is not a matter of discretion (at [69]). (b) The medical assessor’s findings were “entirely general” and did not address the exemplars for a class 2 rating (at [72]). (c) Although the medical assessor said that he relied on the plaintiff’s reports of having difficulty with focus and concentration, there was no evaluation of those reports or any determination of their validity and relevance (at [73]). (d) Even if the reports were reliable, they did not clearly relate to conduct or ability which went to the relevant area of functional impairment because that area (as defined in the equivalent provision in cl 1.209 of the PI Guidelines) relates to whether the plaintiff had the ability to sustain focused attention in relation to tasks commonly found in work settings, whereas the reports relied on by the medical assessor “were not identified as arising in a work-related context or as indicating the plaintiff’s ability or inability to function in any particular way for any length of time in relevant work settings” (at [73]). (e) Merely because the medical assessor considered that the plaintiff had demonstrated no overt cognitive difficulties during an hour-long audio-visual link interview “would not, without more, justify a particular class rating” in relation to concentration, persistence and pace (at [79]). (f) Wright J said at [80] (emphasis added):

Put another way and applying the reasoning in Ballas at [94], by effectively assigning his observation of the lack of overt cognitive difficulties during his interview with the plaintiff to the “concentration, persistence and pace” area of functional impairment, the medical assessor took into account an irrelevant consideration, given the definition of the “concentration, persistence and pace” area of functional impairment in cl 6.209 and the illustrative descriptors in Table 6.15 of the MA Guidelines. This conclusion may also receive some limited support from the fact that “cognitive impairment” is referred to in the illustrative descriptors for class 3 in respect of the “travel” area of functional impairment in Table 6.13 of the MA Guidelines but cognitive difficulties or absence of such difficulties is not referred to in Table 6.15 or cl 6.209.

(g) The medical assessor had failed to comply with the equivalent to cl 1.18(b) of the PI Guidelines because he did not obtain the information as to the plaintiff’s ability to focus attention in relation to tasks commonly found in work settings and whether that attention could be sustained for a sufficiently long time including, for example, that the plaintiff could focus on intellectually demanding tasks for up to 30 minutes (at [85]). (h) Moreover, Wright J found that the medical assessor had failed to review and evaluate available evidence in various medical reports relating to the plaintiff’s functioning and ability concerning concentration, persistence and pace, and contrary to the equivalent of cl 1.18(a) of the PI Guidelines (at [87]ff).

58. For the following reasons, I do not consider that Abdal supports the plaintiff’s case. First, as Leeming JA observed in Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [40], the task of a medical assessor in assessing the degree of permanent impairment is “to determine a quintessentially factual issue”. As might be expected in cases which invariably reflect a broad range of different facts and circumstances relating to claims for compensation, the facts in Abdal are different to the facts here.

59. Secondly, if necessary, I would go a step further and state, with respect, that for the following reasons, Abdal is plainly wrong and I would decline to follow it. In particular, I respectfully consider that his Honour’s approach involved an incorrect level of judicial review scrutiny to a decision which necessarily involved the application of high levels of medical expertise. I also respectfully consider that his Honour erroneously applied, outside the context in which they were made, statements in the joint judgment of Ballas.

60. It is most regrettable that his Honour’s attention was not drawn to some relevant authorities which sit uncomfortably with his approach, namely Basten AJ’s decision in Lancaster and Garling J’s decision in Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504. For the following reasons, I consider that these authorities correctly state the law to be applied in a judicial review of a medical assessment where it is claimed that the assessor has erroneously determined the class of functioning under the PIRS, for example, where it is claimed that the assessment ought to have been class 3 and not class 2. I shall summarise each of those authorities in turn.

(a) Lancaster

61. I have referred above to what Basten AJ said in Lancaster regarding the confined nature of a judicial review of a medical assessor’s decision as to the appropriate class to apply under the PIRS. His Honour correctly emphasised the limited scope for judicial review of a medical assessment and the need to avoid judicial review descending into an impermissible merits review. His Honour properly emphasised at [64] that it was not the function of a judicial review court to review the classification by a medical appeal panel with reference to a determination whether, for example, a person should be placed in class 2 rather than class 3 of one of the PIRS categories.

62. There are several provisions in the PI Guidelines which reinforce the need for judicial restraint in judicial review of such an assessment, with particular reference to the crucial role of clinical judgment by medical specialists in making an evaluation. Thus cl 1.201 expressly acknowledges that psychiatric disorders have complex effects and that impairment “must be assessed by a psychiatrist”. This is further reinforced in cl 1.217 which states that the PIRS “must be used by a properly trained medical assessor” and that the psychiatrist’s “clinical judgement is the most important tool in the application of the scale”. It is also relevant to note cl 1.220 (the terms of which are set out at [14] above), which explicitly states that the class descriptors in the PIRS “are intended to be illustrative rather than literal criteria”. The medical assessor is directed to obtain a history of the injured person’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury, taking into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors. All these matters highlight the central role of medical expertise and clinical judgment in applying the PIRS. That is not to deny that medical assessments are judicially reviewable. In an appropriate case, jurisdictional error or error of law on the face of the record may be established (as Basten AJ acknowledged at [64]).

63. Another important aspect of Lancaster is Basten AJ’s analysis of Ballas. His Honour correctly emphasised that Ballas did not involve review of a decision by a medical assessor or medical appeal panel under the 1998 Act, but rather related to a challenge to a decision of a delegate under s 327(4) of the 1998 Act as to whether the appellant had identified a ground which was capable of constituting “demonstrable error” on the part of a medical specialist so as to warrant review by a medical appeal panel. His Honour said at [71]:

The function of the delegate under s 327(4) was to determine whether the appellant had identified a ground which was capable of constituting “demonstrable error” on the part of the medical specialist. That error did not need to be a legal error. Accordingly, the assessment of a particular activity under the wrong “scale” could constitute a factual error. Clearly it was an error which was reviewable by an appeal panel. As the joint reasons in Ballas sought to make clear, the exercise being undertaken by the medical specialist was evaluative, not discretionary. The use of the phrase “taking into account an irrelevant consideration” might suggest an error of a kind which would be described as jurisdictional error for the purposes of judicial review, and hence applicable in the present case. However, the Court in Ballas did not say that the delegate was required as a matter of law to identify a jurisdictional error on the part of the medical specialist. It was sufficient (as the Court held) that the delegate had failed, through a misunderstanding of her proper function, to accept an argument that was capable of amounting to “demonstrable error” on the part of the medical specialist.

64. This analysis is consistent with what the High Court said in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], namely that the Medical Panel’s role under the Accident Compensation Act 1985 (Vic) was not to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions (footnotes omitted):

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.

65. At [72], Basten AJ explained why the plaintiff’s reading of Ballas, with particular reference to the statement in Ballas at [94] that the characterisation of conduct did not involve an exercise of discretion, had to be read with caution:

The plaintiff’s reading of Ballas would have surprising consequences. It would mean that every time a medical specialist considered under one scale an activity which a court determined properly fell under another scale, he or she committed jurisdictional error which could be the subject of review in the Supreme Court. The proposition that gambling (or running) may fall within the descriptor “social and recreational activities” if carried out in company (whatever that might imply) but not if carried out alone, and the assessment by a medical specialist whom a court determined had failed to apply that distinction so as to render his or her determination a nullity would be a surprising consequence. It would involve reading down the term “recreational” by reference to the generic and imprecise exemplars in the class descriptions, so as to impose a legal constraint on the valid exercise of power by the medical specialist. A similar exercise would potentially be available for each of the other scale descriptors.

66. Later in Lancaster, in addressing the question whether the appeal panel fell into jurisdictional error in assigning a particular class to conduct within a particular scale or category, his Honour stated at [75] that “the issue raised is simply a factual assessment with which the plaintiff disagrees”. His Honour rejected the plaintiff’s claim that the appeal panel had failed to apply the relevant guidelines or the exemplars in the applicable guidelines.

67. Finally, Basten AJ explained why he would reject any submission which required the reasons of an appeal panel to “demonstrate a particular level of scrutiny and degree of specificity with which the facts were scrutinised”. His Honour referred to Wingfoot and the requirement that a medical panel provide a written statement of reasons under s 68(2) of that Act. The High Court stated that this required the panel to explain “the actual path of reasoning” by which it arrived at its ultimate opinion. At [78], Basten AJ described the plaintiff’s submission that the reasons must demonstrate a particular level of scrutiny and degree of specificity with which the facts were scrutinised as inviting “a merit review of factual findings with no attempt to identify an error of law on the face of the record”.

68. While acknowledging that Lancaster related to judicial review of a medical assessment under the 1998 Act, I consider that Basten AJ’s analysis and observations to which I have referred above, apply equally here, with particular reference to judicial review of a medical assessor’s (or review panel’s) classification under the PIRS.

(b) Espana

69. The same may be said about Garling J’s decision in Espana, which also involved judicial review of a decision of a medical appeal panel under the workers’ compensation regime. The assessment related to the plaintiff’s psychiatric or psychological disorder. The initial medical assessor had conducted an examination via AVL, which had taken approximately one hour. The medical appeal panel concluded that it was not necessary for it to re-examine the plaintiff. The plaintiff urged the panel to find that the assessor had erred in determining that a class 2 as opposed to a class 3 classification applied to both the social functioning category and the concentration, persistence and pace category.

70. In dismissing the judicial review challenge to the medical appeal panel’s decision affirming that of the medical assessor, Garling J referred approvingly to Basten AJ’s decision in Lancaster, including many of the paragraphs set out above. It is important to note what Garling J said at [53], with which I respectfully agree:

On a judicial review application to this Court, a ground which raises error in the outcome of an evaluative decision, i.e., where there is varying evidence and material before a Medical Assessor or an Appeal Panel which needs to be assessed and evaluated by the application of (here) psychiatric expertise, faces an almost insurmountable hurdle. More often than not, properly understood, such a ground will be nothing more than an invitation for the Court to entertain what is, in substance, a merits review.

71. There are two other passages in Espana which are of particular relevance and which highlight what I regard to be the incorrect approach in Abdal. The first is what his Honour said at [81]:

In making that assessment, the Appeal Panel is not required to discuss every argument put before it, nor is it required to identify its reasons for not accepting the plaintiff’s submissions to it. It is not required to explain why it rejected, or else did not rely on some of the material that was before it, including medical opinions, and preferred other opinions.

72. I also refer to, and respectfully agree with, what his Honour said at [86]:

In considering the Appeal Panel’s rejection of the plaintiff’s submissions to it with respect to the Concentration, Persistence and Pace scale, the substance of the complaints really invited a merits review by this Court. The substance of the submissions was that the extent of deterioration in the plaintiff’s concentration and persistence was such that he ought to have been categorised as a Class 3 impairment.

73. This is consistent with Basten AJ’s observations in Lancaster at [45] where, in discussing the obligation of a medical appeal panel to give reasons for its assessment, his Honour said:

… That purpose is to ensure that, to the extent possible, any error of law in the reasoning of the Appeal Panel is revealed and may be the subject of an application for judicial review. However, as a practical matter, the Appeal Panel is likely to determine the question before it as a matter of expert medical opinion, the basis for which is peculiarly a matter of its special expertise and which will rarely give rise to any error of law, except on the basis that it is devoid of support in the material before the panel.

74. In my respectful view, if the relevant principles set out in both Lancaster and Espana had been drawn to Wright J’s attention, I consider that it is highly likely that the outcome in Abdal would have been quite different.

75. I will now address Mr Georges’ challenge to the Review Panel’s class ratings in respect of each of the categories in the PIRS.

(c) Self-care and personal hygiene

76. Mr Georges contends that, in assessing his self-care and personal hygiene impairment as class 2, the Review Panel improperly relied on an absence of evidence concerning “significant neglect of self-care”. He submits that the exemplar descriptors do not use the word “significant” and do not “look to neglect of self-care as a mental state examination matter”. Moreover, he complains that his deteriorated state of self-care was not properly viewed in the context of the fact that he was living with his family at the relevant time.

77. Mr Georges also takes issue with the Review Panel’s finding that “he showers a few times a week and does not need prompting, but needs physical assistance”. He submits that the reference to showering a few times per week comes from Medical Assessor Canaris’ reasons, but emphasises that Medical Assessor Canaris found that he did require prompting to shower. Noting that the class 3 descriptors refer to a person who “needs prompting to shower daily”, Mr Georges submits that showering three times a week is not showering daily, nor does showering three times a week without prompting equate to daily showering without prompting.

78. I do not accept these submissions. First, Mr Georges' submissions put far too fine a point on the class descriptors in Table 11, which, as noted above, are intended to be illustrative only and serve neither as the sole nor minimum basis for assigning a particular seriousness classification. The fact that the Review Panel referred to there being "no evidence of significant neglect of self-care on mental state examination" does not establish any misunderstanding of the PI Guidelines or demonstrate that it treated class classification as a matter of discretion. Nothing in the PI Guidelines prohibited it from having regard to such matters in the exercise of its clinical judgment.

79. Secondly, I do not accept Mr Georges’ submission that the Review Panel failed to consider Mr Georges’ deteriorated state of self-care in the context of him living with his family at the relevant time. But even if this were established, it is a matter of weight entirely within the Review Panel’s jurisdiction and would disclose no jurisdictional error or error of law on the face of the record.

80. Thirdly, and as AAI correctly noted in its written submissions, Mr Georges’ position before the Review Panel was that Medical Assessor Canaris’ MAC should be confirmed. Medical Assessor Canaris had assessed self-care and personal hygiene impairment as class 2. Although the Review Panel expressed its reasons for its class 2 assessment slightly differently from Medical Assessor Canaris, and in particular did not consider that Mr Georges required ‘prompting’ for showering, it reached the same class classification.

(d) Social and recreational activities

81. Mr Georges submits that, in assessing his social and recreational activities impairment as class 2, the Review Panel improperly referred to his ability to “enjoy” activities that did not exacerbate his pain (such as watching television) in circumstances where the exemplar descriptions make no reference to enjoyment and are instead concerned with a person’s level of engagement in social activities. Mr Georges submits that lying on the couch watching television alone cannot possibly point to any social engagement and is consistent with the class 3 descriptor: “Not actively involved, remains quiet and withdrawn”.

82. Mr Georges also takes issue with the Review Panel’s finding that “he wants to go and do things and go on holiday, but his family doesn’t want to go with him because he gets angry”. Although it is not entirely clear, Mr Georges’ complaint seems to be that there was no basis for this finding in circumstances where Mr Georges’ evidence was that he wasn’t able to do these things because of his impairment and not because of the attitude of his family.

83. I reject these submissions. Once again, Mr Georges puts too fine a point on the language of the class descriptors. While they do not explicitly refer to a claimant’s capacity to “enjoy” social or recreational activities, they also do not prohibit such matters from being taken into account as part of the exercise of clinical judgment. This is particularly so in circumstances where the class 2 descriptors refer to a person not being “actively involved; for example, in dancing, cheering favourite team” (emphasis added). I accept the AAI’s submission that the concepts of being “actively involved” and “cheering” implicitly direct attention to the quality of participation in activities.

84. It may be accepted that class 2 descriptors refer specifically to “social events” and that watching television at home alone may not in the ordinary course fairly be characterised as a “social event”. Again, however, the class descriptors are not exhaustive of the matters which may be taken into account. Nothing in the PI Guidelines says that a Review Panel is not entitled to have regard to such matters as watching television when assessing the “social and recreational**”** impairment. It is notable that at [204] of its reasons, the Review Panel referred to Mr Georges’ statement that, while he does not watch “intense” TV shows, he “watches shows that are ‘light hearted’, which he enjoys” (emphasis added).

85. Read fairly and as a whole, the Review Panel’s class 2 classification is readily comprehensible and was arrived at consistently with the relevant requirements in the PI Guidelines. The Review Panel recognised that Mr Georges was unable to engage in recreational activities which he wanted to engage in (like going fishing and on holiday) but considered that this was due to his physical injuries and pain and not due to any psychological impairment. The Review Panel also recorded that Mr Georges visits his parents “a couple of times a week” and drives to the local shopping centre (see [202] and [207] of its reasons, reproduced at [27] above). This sheds further light on the Review Panel’s assessment of Mr Georges’ social and recreational activities impairment as class 2 and not class 3, noting that the class 3 descriptors refer specifically to a person being “unable to go out without a support person”.

(e) Travel

86. Mr Georges complains that, in assessing his travel impairment as class 1, the Review Panel improperly failed to take into account the side effects of medication. He emphasises that cll 1.222-1.224 of the PI Guidelines permit an increase in the assessment of WPI for some medications. He also contends that the Review Panel’s finding that “his driving is not affected by his psychological condition” is inconsistent with its finding “he finds that he is not safe to be driving the van on medication, particularly Seroquel and Amitriptyline”. Mr Georges notes that, on the material before the Review Panel, it was clear that those medications had been prescribed specifically for psychiatric purposes. If the effect of these medications had been properly considered, it is said a class 3 classification would have been assigned.

87. I do not accept these submissions. Mr Georges appears to treat the Review Panel’s finding that “[m]edication side effects are not assessable” as reflecting a supposition on the part of the Review Panel that it was not entitled to take into account the effect of psychiatric medications on driving under the PI Guidelines. In my view, the finding is better read as a finding that the Review Panel was unable to determine whether Mr Georges’ psychiatric treatment affected his ability to drive or otherwise travel. This reading is consistent with the Review Panel’s observation that Mr Georges’ psychological injury was unlikely to deteriorate if he ceased taking his medications (see at [29] above). It also explains the Review Panel’s finding at [202] that “his driving is not affected by his psychological condition” (see at [27] above), it is also significant that in that same paragraph the Review Panel referred to Mr Georges’ statement during the re-examination that he “cannot focus due to heavy analgesic medications and feels ‘groggy’” and that he did not drive when he was in severe pain. In other words, the Review Panel proceeded on the basis that any effects of medication on Mr Georges’ driving were related to the heavy analgesic medications and not medications he was taking for his psychological condition.

(f) Social functioning

88. Mr Georges complains that the Review Panel referred to his personal relationships having "deteriorated" in assessing a class 2 impairment for social functioning. He emphasises that the exemplar descriptors focus on relationships being "strained" (class 2) as compared with "severely strained" (class 3). He submits that both of these categories already fall within the broader notion of a "deteriorated" relationship.

89. I do not accept these submissions. Read in isolation, it is true that a finding that a person’s relationships have deteriorated is ambiguous as to whether that person’s relationships are “strained” or “severely strained”. However, the Review Panel’s findings must not be read in isolation. It is clear that the Review Panel was well aware of the relevant class descriptors in the PIRS. By referring to Mr Georges’ relationships as having “deteriorated” in the context of assigning a class 2 classification, it is tolerably clear the Review Panel regarded his relationships as impaired in the class 2 and not the class 3 sense.

90. This reading is fortified having regard to the fact that the class 3 descriptors refer specifically to relationships being “severely strained”, as “evidenced for example by periods of separation or domestic violence”. There is nothing in the Review Panel’s reasons to indicate that it regarded Mr Georges’ relationships as having deteriorated to this extent. Indeed, the Review Panel recorded at multiple points that Mr Georges has maintained close relationships with his parents, wife and children, which sheds clear light on its reasons for not assigning class 3.

91. Finally, it should also be noted that this is another PIRS in respect of which Medical Assessor Canaris and the Review Panel were in agreement. In circumstances where Mr Georges asked the Review Panel to uphold Medical Assessor Canaris’ MAC, he cannot now be heard to complain that the Review Panel has erred in coming to the same conclusion as the Medical Assessor without identifying reviewable error.

(g) Concentration, persistence and pace

92. In assessing his concentration, persistence and pace as a class 2 impairment, Mr Georges again submits that the Review Panel improperly disregarded the effects of his psychiatric medications. Particular issue is taken with the Review Panel’s finding in the PIRS that:

The claimant's medication causes concentration difficulties, and these are not assessable in the PIRS. Off Seroquel and Amitriptyline, he exhibited reasonably good concentration, persistence and pace during the assessment for 90 minutes, which is an intellectually demanding task.

He has a mild impairment.

93. Mr Georges contends that the exemplar descriptions are not “concerned with performance in a Commission consultation conducted by medical specialists, particularly where the patient has abstained from prescribed medication to avoid its side effects”.

94. Senior counsel for Mr Georges went so far as to say that the Review Panel took into account an irrelevant consideration when it relied upon the re-examination of Mr Georges by the two psychiatrists in determining the rating concerning the category of concentration, persistence and pace. He said that this was “because that's not what the exemplar descriptions are directed towards”. Senior counsel contended that the exemplars were directed to “day-to-day events outside a medical examination”. For the following reasons, I do not accept that contention.

95. The Review Panel was plainly entitled to rely on its own clinical evaluation of Mr Georges based on the observations of the two psychiatrists of how he performed during the 90 minute AVL re-examination. It did say by appropriate acknowledgement that the re-examination provided “an intellectually demanding task” for him. This is reflected by the length of the re-examination and the searching questions and responsive answers by Mr Georges, many of which are referred to in the body of the Panel’s reasons (see, by analogy, Ballas at [93] per Bell P and Payne JA). Such a clinical examination should provide a particularly robust basis upon which to form a clinical judgment as to impairment of concentration, persistence and pace.

96. Moreover, and as AAI correctly points out, cl 1.21 of the PI Guidelines explicitly provides that evaluations “should only consider the impairment as it is at the time of the assessment”, which clearly permitted the Review Panel to rely on the observations and clinical judgment of the two psychiatrists in assessing Mr Georges’ concentration, persistence and pace during the re-examination. That re-examination enabled the Panel to test Mr Georges’ cognitive capacity and an opportunity to evaluate the level of his impairment in concentrating, persisting in the task of responding to the psychiatrists’ questions and the pace with which he was able to do so. To the extent that a different view was taken in relation to this matter in Abdal (see at [57(f)] above), I respectfully disagree.

97. There is a further reason why I reject Mr Georges’ challenge to this aspect of the Review Panel’s MAC. I do not accept that the Review Panel erred in disregarding the effects of Mr Georges’ medications. In the extract from the Review Panel’s PIRS rating table set out at [92] above, the Review Panel said that Mr Georges’ medication “causes concentration difficulties, and these are not assessable in the PIRS”. Presumably, this is a reference to cl 1.222 of the PI Guidelines (which is set out at [14] above). For an adjustment to be made for the effects of medication, all four requirements set out therein must be established. The Review Panel was well aware that Mr Georges had been taking Seroquel and Amitriptyline and that, when he stopped taking those medications for the purposes of the re-examination, he exhibited reasonably good concentration, persistence and pace during the 90 minute re-examination by the two medical assessors.

98. It appears that the Review Panel’s reference to Mr Georges’ medication not being assessable in the PIRS may include those two particular drugs. Although not explicitly stated, a reasonable inference can be drawn that this is because the Review Panel was not satisfied that all the four requirements in cl 1.222 were satisfied or because it considered that the exemption in cl 1.224 regarding the use of antidepressant drugs for analgesia or pain management applied. There was ample evidence before the Review Panel that Mr Georges suffered from a major depressive disorder as well as chronic pain syndrome in the shoulder, neck and arms. There are references in various reports dated 3 September 2019, 14 January 2020 and 17 April 2020 by Dr Iftikhar Ahmad, Consultant Psychiatrist, that Mr Georges suffered from these conditions and that he was taking inter alia Amitriptyline and Quetiapine (which is another name for Seroquel).

99. One of the four requirements is that there is clear clinical evidence that the treatment has been effective, in the sense that the injured person’s symptoms have improved and/or functioning has improved. Significantly, the Review Panel noted at [197] of its reasons that Mr Georges “has not found psychotropic medications to be particularly helpful”. Those medications included Seroquel and Amitriptyline as prescribed treatments. Later in its reasons for decision, with respect to the issue of effect of treatment, the Review Panel reasoned as follows at [234]:

234. In the opinion of the Medical Assessors’ the claimant’s treatment has had negligible effect in symptomatic relief and in functional improvement. Should the claimant’s prescribed psychiatric medication be weaned and withdrawn the Medical Assessors are of the opinion that the psychological injury would be unlikely to deteriorate. For these reasons the assessment of treatment effect was assessed as 0% whole person impairment.

100. Thus, the Review Panel explained why it assessed the effective treatment as 0% WPI in contrast with Medical Assessor Canaris’ assessment of 1% WPI.

101. Ideally, perhaps the Review Panel could have made clearer in its reasons which particular part or parts of cl 1.222 (or cl 1.224) it relied on in finding that no adjustment could be made for medication, but I am not persuaded that the reasons in relation to this matter are inadequate for the purposes of judicial review. In particular, the reasons need to be read as a whole. It is sufficiently evident from [234] of those reasons that the Review Panel’s assessment of treatment effects as 0% WPI primarily related to the clinical judgment of the two medical assessors (both psychiatrists) that Mr Georges had had “negligible effect in symptomatic relief and in functional improvement”, words which closely mirror the third of the four requirements in cl 1.222 of the PI Guidelines. It may reasonably be inferred that the Review Panel was satisfied that, at least, cl 1.222.3 was not satisfied.

(h**)** Adaptation

102. Mr Georges submits that, in assessing his adaptation as a class 3 impairment, the Review Panel improperly had regard to his contributions to family life, which is not a subject matter referred to in the exemplar descriptions. He submits that, if contribution to family life had been disregarded, then the Review Panel would have assessed him as having a partial work capacity of less than 20 hours per week, which would have resulted in a different classification.

103. I do not accept these claims. Clause 1.210 of the PI Guidelines provides that: “Adaptation (also called deterioration or de-compensation in work or work-like settings) refers to the repeated failure to adapt to stressful circumstances”. From this, it is clear that assessment of adaptation need not be limited solely to work. Moreover, clause 1.221 of the PI Guidelines explicitly provides:

Where adaptation cannot be assessed by reference to work or a work-like setting, consideration must be given to the injured person’s usual pre-injury roles and functions such as caring for others, housekeeping, managing personal/family finances, voluntary work, education/study or the discharge of other obligations and responsibilities.

104. In circumstances where the Review Panel found that Mr Georges was unable to work because of the physical effects of the accident, it is unsurprising that it took other matters into account in assessing his psychological adaptation impairment. No reviewable error is disclosed.

105. Finally, it should be noted that, in oral address, senior counsel for Mr Georges abandoned that part of his case which claimed that the Review Panel had failed to engage with “clearly articulated arguments” he had raised.

Conclusion

106. For all these reasons, the amended summons will be dismissed. The Court was informed that the parties had agreed to bear their own costs of the judicial review proceedings.

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