Graovac v Motor Accidents Authority

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970

Abede v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Attorney-General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 Bruce v Cole (1998) 45 NSWLR 163 Buck v Bavone (1976) 135 CLR 110 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Craig v State of South Australia [19995] HCA 58; (1995) 184 CLR 163 Cross v McHugh [1974] 1 NSWLR 500 CASES CITED : Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Martin v Kelly [2008] NSWSC 577 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; [2007] 235 ALR 609 Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 Wyong Shire Council v MCC Energy Pty Ltd [2005] NSWCA 86; (2005) 139 LGERA 296

TEXTS CITED : American Medical Association Guides to Evaluation of Permanent Impairment (1995) 4th ed MAA Permanent Impairment Guidelines (1 October 2007)

Zdravka Graovac (Plaintiff PARTIES : Motor Accidents Authority of New South Wales (First Defendant) MAS Review Panel (Second Defendant) NRMA Insurance (Third Defendant)

B Nolan (Plaintiff) COUNSEL : Submitting Appearance (First and Second Defendants) W Fitzsimmons (Third Defendant)

NSW Compsensation Lawyers (Plaintiff) SOLICITORS : Crown Solicitor's Office (First and Second Defendants) Moray & Agnew (Third Defendant)

LOWER COURT JURISDICTION : Motor Accidents Authority of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

2010/47489 ZDRAVKA GRAOVAC v MOTOR ACCIDENTS AUTHORITY & 2 ORS

JUDGMENT (Judicial review - Motor Accidents Authority - MAC Act) 1 HER HONOUR: By summons filed 22 February 2010, the plaintiff seeks firstly, an order in the nature of certiorari setting aside the decision of the second defendant ("the Review Panel") in MAS matter No. 2008/02/2400 dated 6 August 2009 on the basis that the decision was vitiated by jurisdictional error and/or error on the face of the record and was of no effect; secondly, costs; and thirdly, such further or other order as the court may think fit. The plaintiff relied on the affidavit of her solicitor Vic Petrovich dated 19 February 2010. 2 The plaintiff is Zdravka Graovac ("Ms Graovac"). The first defendant is the Motor Accidents Authority of New South Wales ("the MAA"). The second defendant is the Review Panel. The third defendant is NRMA Insurance. The first and second defendants have filed submitting appearances.

Judicial review generally 3 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970. 4 In Martin v Kelly [2008] NSWSC 577, Johnson J at [13]-[23], made some helpful remarks on the confines of judicial review. I respectfully adopt and repeat them here. They are: "13 The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin (1989-1990) 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: 'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'

14 This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 152-154 [43]-[44].

15 The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 at 40-41.

16 The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [25]. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291.

17 Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

19 In Craig v South Australia , Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: 'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

20 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia , and continued at 351 [82]: 'Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.' 21 Where a decision is challenged upon the basis that it was manifestly unreasonable (in the Wednesbury sense), the test to be applied is stringent. The decision must amount to an abuse of power or be so devoid of plausible justification that no reasonable person could have taken that course: Attorney-General for NSW v Quin at 36-37; Weal v Bathurst City Council (2000) 111 LGERA 181 at 188; [2000] NSWCA 88 at [27]; Wyong Shire Council v MCC Energy Pty Ltd (2005) 139 LGERA 296 at 312; [2005] NSWCA 86 at [79].

22 In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41.

23 Where a challenge is one that relates to the formation of an opinion by an administrative tribunal, then the ground of legal error is somewhat confined by reference to the principles in Buck v Bavone (1976) 135 CLR 110 at 118-119; Bruce v Cole (1998) 45 NSWLR 163 at 183-184. …" 5 Recently, in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, the High Court discussed jurisdictional error in Australia and considered Craig v South Australia (1995) 184 CLR 163 at [66] - [68].

The proceedings under the Motor Accidents Compensation Act 1999 6 Mrs Graovac seeks judicial review of a medical assessment by a Review Panel in respect of injuries allegedly suffered by her in a motor vehicle accident on 24 April 2007. On 24 February 2009, a medical assessor, Dr Peter Klug, undertook an assessment of her permanent impairment. On the same day a certificate and statement of reasons in respect of the assessment was issued. That assessment had found Mrs Graovac's whole person impairment was greater than 10%. 7 Pursuant to s 63(1) of the Motor Accidents Compensation Act 1999 ("the Act") NRMA Insurance sought a review of the medical assessment by the Review Panel on the basis that the medical assessment was incorrect in a material respect.

8 On 29 April 2009 the proper officer referred the matter for review of the medical assessment pursuant to s 63(3) of the Act. A Review Panel issued a certificate revoking the certificate of Assessor Klug dated 24 February 2009 and issued a further certificate that the injuries caused by the motor accident were not greater than 10%. 9 The Review Panel was provided with the original assessment certificates issued by Dr Klug; the letter of referral from MAS to Dr Klug; the application for a review and all supporting documents; the reply to the application and all supporting documents; the proper officer's statement of reasons for accepting this application and all the documents which were provided to Dr Klug, prior to the assessment.

10 Mrs Graovac submitted that the decision of the Review Panel is infected by jurisdictional error and error on the face of the record by reason of the Review Panel failing to complete its statutory task, taking into account an irrelevant consideration and failing to take into account a relevant consideration.

Grounds of review 11 Mrs Graovac seeks a review on the following grounds. Firstly, that the decision of the Review Panel is infected by the failure to complete a statutory task, that is, the Review Panel failed to diagnose in accordance with the MAA Permanent Impairment Guidelines (1 October 2007) ("the Guidelines") the pre-existing psychiatric impairment that formed the basis for apportionment under clause 7.18 of the Guidelines; second, by the taking into account of an irrelevant consideration in arriving at its decision, that is, the Review Panel took into account the opinion and clinical notes of Ms Graovac's general practitioner; and third, failing to take into account a relevant consideration to arrive at its decision, that is, the Review Panel failed to consider the relevant material before it as to the resolution of Mrs Graovac's pre-existing psychiatric condition as recorded by a trained and qualified psychiatrist who treated Ms Graovac at the relevant time and preferred instead the clinical notes of Ms Graovac's general practitioner.

The Motor Accidents Act and Chapter 4 of the Guidelines 12 Under the Act, common law rights to damages for non-economic loss were significantly modified from that which previously applied under the common law. Section 131 of the Act prohibits the awarding of damages for non-economic loss, unless the degree of permanent impairment of the injured person as a result of the injury for which the Act compensates is greater than 10 per cent. The Act also requires any dispute about whether the permanent impairment of the injured person is more or less than the 10 per cent threshold to be resolved by an assessment by a medical assessor under Part 3.4 of the Act. 13 Section 61 of the Act provides that a medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

The Motor Accidents Act Guidelines 14 The Guidelines are issued pursuant to s 44(1)(c) of Act and apply in respect of a motor accident occurring on or after 5 October 1999. Section 65(1) of the Act provides that the assessment of the degree of permanent impairment is to be made in accordance with the Guidelines issued for that purpose. The Guidelines use the American Medical Association Guides to the Evaluation of Permanent Impairment, (1995) 4th ed, ("AMA 4") as their basis. The Guidelines make changes to the AMA 4 to align them with Australian clinical practice and to better suit them to the purposes of the Act. The convention used in the Guidelines is that if the test is in bold it is a directive as to how the assessment should be performed. I shall adopt this convention in my judgment where referring to the Guidelines. 15 The relevant Guidelines for psychiatric and physical impairments are set out at 1.37 to 1.39 and Chapter 7. To understand counsel for Ms Graovac's submission it is necessary that Guidelines 7.1 to 7.12 are reproduced. These Guidelines read: " Mental and Behavioural Disorders Impairment Introduction 7.1 Psychiatric disorders have complex effects on the individual, and impairment is multi-axial.

7.2 The AMA 4 Guides do not give percentages of psychiatric impairment in Chapter 14 (pp 291-302), which deals with Mental and Behavioural Disorders. The Guides' authors explain that medically determinable impairments in thinking, affect, intelligence, perception, judgment and behaviour are difficult to translate into functional limitations.

7.3 One of the ways to determine the degree of psychiatric impairment is to examine the level of disability produced by an equivalent degree of physical impairment. The compatibility between psychiatric and physical disability will minimize discrimination between persons suffering psychiatric injuries and persons suffering physical injuries.

7.4 The Assessment of Mental and Behavioural Disorders must be undertaken in accordance with the Psychiatric Impairment Rating Scale as set out in these MAA Guidelines. Chapter 14 of the AMA 4 Guides (pp 291-302) is to be used for background or reference only.

7.5 The Psychiatric Impairment Rating Scale (PIRS) has been developed drawing heavily on Chapter 14 of the AMA 4 Guides.

7.6 The AMA 4 Guides provide a framework to determine whether a motor vehicle accident has caused psychiatric impairment. They bridge the gap between impairment and disability by focussing on four areas or aspects of functioning: 1. Activities of daily living (three aspects of ADL are used in the PIRS system)

These areas are described in detail on pp 294-295, AMA 4 Guides.

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

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

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

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

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

7.12 Mental and behavioural disorders resulting from an organic brain injury are most suitably assessed as an organic problem under the Nervous System Impairment Chapter of these MAA Guidelines (Chapter 5).

Approach to assessment of mental and behavioural disorders

7.13 The impairment must be attributable to a recognised psychiatric diagnosis in accordance with the Diagnostic Statistics Manual of Mental Disorders (4th Edition) [DSM IV], Internal Classification of Diseases (10th Edition) [ICD 10] or a substantial body of peer review research literature. The impairment evaluation report must specify the diagnostic criteria upon which the diagnosis is based.

7.14 Impairment due to physical injury, for example, deficits in self-care or travel caused by brain or spinal cord injury, is assessed using different criteria by nervous system impairment assessors.

7.15 The PIRS is not to be used to measure impairment due to pain or somatoform disorders.

7.16 Where cognitive deficits are suspected, the assessor must carefully consider the history of the injury, medical treatment and progress through rehabilitation. The assessor will also take into account results of CT and MRI scans, electroencephalograms (EEGs) and results of psychometric tests.

7.17 The scale is to be used by a properly trained assessor. Clinical judgment will be the most important tool in the application of the scale. The impairment rating must be consistent with a recognised psychiatric diagnosis, and clinical experience .

7.18 In order to measure impairment caused by a specific event, the assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or condition, estimate the overall pre-existing impairment using precisely the method set out in this Chapter, and subtract this value from the current impairment rating.

7.19 Behavioural consequences of psychiatric disorder are assessed on six 'Areas of Function', each of which evaluates an area of functional impairment: o Self-care and personal hygiene (Table 7.1) o Social and recreational activities (Table 7.2) ● Travel (Table 7.3) ● Social functioning (relationships) (Table 7.4) ● concentration, persistence and pace (Table 7.5) ● Adaptation (Table 7.6)

7.20 Impairment in each area of function is rated using class descriptors. Classes range from 1 to 5 according to severity. The standard for (Figure 7.1) must be used when scoring the PIRS. The classes in each Area of Function are described by way of common examples. These are intended to be illustrative rather than literal criteria. The 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 assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors." 16 Guidelines 7.4, 7.17 and 7.18 are of importance in terms of the submissions made in this judicial review.

The determination of the Review Panel 17 On 29 July 2009 Ms Graovac was examined by the Review Panel comprising of three psychiatrists, Drs Lorraine Dennerstein, Greg Steele and Marilyn Moore. The Review Panel decided to conduct a re-examination. This arose because of the need to "apportion any pre-existing impairment in determining permanent impairment due to the motor car accident". 18 The Review Panel also sought further material from Ms Graovac's solicitor. In response, her solicitor provided to the Review Panel a report of Dr Sokolovic, a treating psychiatrist, dated 18 May 2009; a report of Dr Tomasevic, a general practitioner, dated 4 May 2009; and clinical records from Dr Tomasevic (undated). Although the Review Panel had requested the clinical notes of Dr Sokolovic they were not supplied. Nor was any explanation proffered as to the reason why they were not made available. The reason why the Review Panel sought the additional information from Dr Sokolovic was because the contemporaneous clinical information would assist it in reaching decisions on causation, diagnosis and apportionment for pre-existing impairment. Without the clinical notes from Dr Sokolovic, there were gaps in the contemporaneous records. 19 In its review of the material before it, the Review Panel summarised the report from Ms Graovac's treating general practitioner, Dr Tomasevic, dated 4 May 2009 as follows: "… She had first attended him on 5 June 2006. Prior to the motor accident she suffered from chronic pain in the neck, lower back, bilateral sciatica, right foot paresthesia, bilateral upper limb pains and paresthesia. She suffered from depression and was receiving psychiatric therapy from Dr Sokolovic. Her husband was her full-time carer and received a carer's allowance. After the accident she suffered a number of physical injuries and anxiety and depression. She was referred to a psychologist. She was reviewed once to twice per month.

His progress notes dated 5/6/06 indicated clinical notes from LMO Dr Talic that she had "headache, depression, PTSD".

The treating doctor's report by Dr Tomasevic in Centrelink file dated 18/8/06 details chronic pain since 1983 and these are severely debilitating. Condition 2 was listed as depression since 1995 as a consequence of her experiences in the tragic war in the former Yugoslavia. She was receiving treatment from psychiatrist Dr Sokolovic. Symptoms included dysphoria, difficulty concentrating, headaches, insomnia, withdrawn, poor sense of self, bleak view of the future, anhedonia, irritability, nightmares, flashbacks to events in war. Symptoms are chronic and are severely debilitating. She was being treated with counselling, antidepressant medication and diazepam. She had reduced cognitive function and reduced ability to interact or communicate with other people. She was diagnosed with post traumatic stress disorder. The treating doctor's report on 3/11/06 indicated she was receiving counselling, Valium 5mg prn, fluoxetine 20mg bd, Cafergot, attending psychiatrist and had reduced cognitive function, reduced ability to interact and communicate with other people. The patient's husband is her carer." 20 The Review Panel also noted the report from Dr Sokolovic dated 18 May 2009 that indicated: "That the claimant was first seen on 21 January 2005. He states that refugee stressors triggered in her a grade of anxiety and depression which continued to beset her when she migrated to Australia. She found it difficult to adjust to the Australian way of life and her previous musculoskeletal symptoms of back pain and headaches fluctuated and were aggravated. He states her symptoms are fluctuating back pain and headache which resulted in her being rated a disability pension; and that her anxiety and depression resulted in her being referred for psychiatric assessment assistance. Her affect was dysphoric, her mood was mildly depressed. He diagnosed dysthymic disorder, compounded with musculoskeletal pain and a mild form of reactive anxiety and depression compounded with adjustment disorder. She was prescribed lovan to which was added diazepam to address her sleeping problems. There was supportive and cognitive therapy and family therapy with the inclusion of her husband. There was an improvement in her anxiety and depression but she continually complained of musculoskeletal symptoms and headaches. She was granted a disability pension in 2006 when she moved with her family to Sydney. He reports she stated her disability pension was granted solely for somatic ailments. Her medical condition was gradually improving. She was advised to reduce the reliance on her husband. She gradually reduced attendance and missed a few appointments and her last appointment on 9 November 2006 he says she appeared optimistic and intended to withdraw from the assistance of her carer and the pension. She was reducing her medication with intention to curtail it. …" 21 Hence, Dr Sokolovic, the psychiatrist in his own report had diagnosed Ms Graovac as suffering from a mild form of reactive anxiety and depression compounded with an adjustment disorder. 22 The Review Panel took a history of Mrs Graovac's pre-existing or previous psychiatric impairment. It records that: "She said that about one month after coming to Australia she became depressed, missing her family. She had no spoken English. She had insomnia and bad dreams and felt tired in the morning. She said her dreams were about her daughter and granddaughter. On further questioning, after informing her that other medical reports had documented the dreams as relating to stressful experiences she had undergone related to the Yugoslavian Civil War, she said that she also had bad dreams about the war but mostly the dreams were about her daughter and granddaughter. She was sad and tearful. She was anxious. She lost 3kg to 4kg weight.

She went to a Serbian-speaking general practitioner and to a Serbian-speaking psychiatrist and took lovan and diazepam. She said she improved. She did not go out much. While taking her prescribed medication she said she was able to concentrate and had more friends and her condition stabilised. She said she stopped taking the tablets 8 to 9 months before the motor accident and by the time the last appointment with her psychiatrist on 9 November 2006. She thinks she felt okay at that time. When further questioned, she said she cannot remember exactly how she was prior to the motor vehicle accident. She said she gets confused about dates. She thinks she largely had mood problems because of her back. She said she continued to take the prescribed tablets (lovan and diazepam) a few times per month or if she had any symptoms. She said she no longer had nightmares or mood problems." 23 As to her symptoms post accident, the Review Panel recorded: "She was very panicky about her health. ... She had frequent nightmares of the accident. She would wake in sweat, throbbing and have to get up.

She also had flashbacks of the accident. She described it as a picture in her head of the accident. She said flashbacks were triggered by the sound of sirens. She was fearful of further accidents and has remained so. She has avoided car travel. She will travel in a car limited to short distances locally. … She was sad and tearful. She recalled she was frightened about leaving the house. She did feel suicidal and was thinking about taking tablets.

She resumed regularly taking fluoxetine and diazepam a month or so after the accident. … She was trialled on Zoloft but stopped taking this. …

Her headaches and other pains were exacerbated by the accident. She describes her back pain and her neck pain as still being strong. She had headaches a couple of times a week. The left shoulder and left knee are painful. She had pain under her right breast and pain in her left chest. She has numbness in her right leg.

She gets to sleep with difficulty and says she tosses and turns during the night. She wakes because of pain or numbness. She has nightmares now may be twice a week. She wakes in a sweat and scared. She can't remember the content of her dreams. She said she relives the accident every time she hears a siren. She is still fearful of being in a car. She fears further accidents. She said the sadness and tearfulness have gone.

Mental examination found the claimant was a middle aged overweight woman with short black hair. She was neatly dressed. She stood at one stage. She appeared able to concentrate through the one hour, 40 minutes of the assessment, but she describes lower concentration. There was no abnormality of speech volume evident. She was vague about dates and gave conflicting and contradictory information at times. She had restricted mood. She said that there is nothing she enjoys in her life. She describes insomnia and nightmares. She continues to have flashbacks triggered by sirens. She describes anxiety about being in cars. There was no evidence of any formal thought disorder or any perceptual abnormalities. She last had suicidal thoughts about a month ago in response to pain." 24 Under the heading "Injuries" the Review Panel made the following conclusions. "The panel concluded that the claimant had a long history of chronic pain prior to coming to Australia. There was evidence that since being in Australia she had also suffered from a mood disorder and post traumatic stress disorder and had been treated for these by her general practitioner and psychiatrist. She had been prescribed psychotropic medications (fluoxetine and diazepam) and had taken these regularly and claims to have discussed reducing them six months prior to the accident. The medical certificate for her disability pension and her husband's carer allowance indicated both the physical complaint (chronic back pain) and the psychiatric complaints (post traumatic stress disorder and anxiety and depression). The panel accepts the contemporaneously recorded information about her symptoms and diagnoses prior to the accident. In particular the panel noted that her general practitioner reported on 30/1/07 the same symptoms her had previously reported; insomnia, difficulty concentrating, headache and that she was not suicidal. She was then involved in a frightening car accident in which she feared she would die. The motor accident exacerbated her physical and psychiatric complaints. 25 The Review Panel applied the DSM 4 criteria for a diagnosis of post traumatic stress disorder arising from the car accident. In this regard the Review Panel stated: "Features of the posttraumatic stress disorder included that she was involved in a frightening car accident in which she feared she would die and responded with intense fear, helplessness and horror (Criterion A). She has had distressing re-experiencing of this in the form of nightmares and flashback (Criterion B). She has had persistent avoidance of stimuli associated with the trauma with anxiety and avoidance of car travel, diminished interest in participating in significant activities and a sense of a foreshortened future (Criterion C). She had persistent symptoms of increased arousal including insomnia and reports difficulty concentrating (Criterion D). Her symptoms became chronic (Criterion E). The symptoms cause her clinically significant distress and impair her functioning (Criterion F). She also had exacerbation of mood disorder. The panel concluded that she had previously had an adjustment disorder with depressed mood related to her chronic back pain and her wartime and refugee experiences including migration to Australia. There has been some reduction in nightmares and she no longer remembers the content of these. She says her mood has improved but indicated that she still has a lack of pleasure in her life. Her psychiatric disorders are still of clinical significance. 26 In its decision, the Review Panel found that the accident was the cause of the following psychiatric injuries: exacerbation of post traumatic stress disorder; and exacerbation of adjustment disorder with depressed mood. 27 The Review Panel also considered that the above psychiatric injuries gave rise to permanent impairment. The degree of whole person impairment of the injuries caused by the accident was calculated according to the Psychiatric Impairment Rating Scale ("PIRS"). The degree of whole person impairment attributed to the injury caused by the accident was 22%. The Review Panel deducted a percentage of whole person impairment for her pre-existing injury that the Review Panel considered that she suffered, being post traumatic stress disorder. 28 For both pre-accident and post accident psychiatric injuries, the Review Panel applied Psychiatric the PIRS as set out in the Guidelines. The Review Panel assessed Ms Graovac's pre-existing condition and then used the same rating scale assessment process to assess Ms Graovac's current condition. The pre-existing total (13%) was subtracted from the current total to arrive at the final whole person percentage impairment, being 9%.

(i) Whether failure to diagnose the putative pre-existing psychiatric disorder: Whether this constitutes failure to complete the statutory task 29 Counsel for Mrs Graovac submitted that the Review Panel failed to construct the diagnosis and specify the diagnostic criteria on which the putative pre-existing injury of post traumatic stress disorder was based. That is to say, it did not diagnose the putative disorder said to pre-exist the motor accident but rather accepted the contemporaneously recorded information about the symptoms and diagnoses prior to the accident. 30 Ms Graovac submitted that the failure by the Review Panel to conduct its own assessment as to the diagnosis appropriate for the any condition suffered prior to the accident was a task that the Act and Guidelines required that the Review Panel carry out itself. According to Ms Graovac this failure to do so constitutes an error on the face of the record and also an error going to its jurisdiction by reason of failing to carry out a statutory task made mandatory by the Act. In oral submissions, Ms Graovac's counsel asserted that the Review Panel was obliged to use the DSM 4 criteria to diagnose the pre-existing post traumatic stress disorder. 31 Counsel for the NRMA submitted that the Review Panel was required pursuant to Guideline 7.8 to estimate the overall pre-existing impairment utilising the PIRS provided in Clause 7.9 and then subtract this value from the current impairment rating. Counsel for the NRMA submitted that to the extent Ms Graovac seeks to attack these pre-existing diagnoses it is tantamount to a merits review and that the Review Panel did conduct its own assessment as to the diagnosis appropriate for any condition suffered prior to the accident. 32 The assessment of Mental and Behavioural Disorders must be undertaken in accordance with the PIRS) as set out in the Guidelines (Guideline 7.4 is in bold so the "must" is directive). PIRS addresses various aspects of daily living. The PIRS addresses activity of daily living, social function, concentration, persistence and pace, and adaptation. The degree of impairment is divided into five classes ranging from no impairment to extreme impairment. The Review Panel used the Tables set out in Guideline 7.19 and applied them as follows:

Psychiatric diagnoses 1. exacerbation of posttraumatic stress disorder 2. exacerbation of adjustment disorder with depressed mood Psychiatric treatment Description Endep 50 mg daily, diazepam 5 mg prn, monthly therapy with psychiatrist Category Class Reason for decision Self care and personal hygiene 3 Moderate impairment. She misses meals. Her husband has to remind her to shower Social and recreational activities 3 Moderate impairment. She cannot recall when she last went to a family luncheon or function. She goes out much less than previously and does not appear to leave the house alone. However she is going out with a girlfriend or son's girlfriend for coffee Travel 2 Mild impairment. She is anxious in cars but will travel in cars for short distances locally Social functioning 2 Mild impairment. She is irritable. This no doubt causes some tension in her relationships at home Concentration, persistence and pace 4 Severe impairment. She skims through the Serbian newspaper and doesn't read articles. She stopped doing crosswords. She cannot watch television programs. Adaptation 4 She does little domestic work due to both physical and psychological injuries. Impairment due to psychological injuries is classed as severe

Final % whole person impairment 22% 33 The Review Panel approached the apportionment between her previous condition to her condition after the motor vehicle accident as follows. 34 The Review Panel considered that her prior disorders of posttraumatic stress disorder and adjustment disorder with depressed mood had not resolved as her general practitioner's progress notes do not show a change in her symptoms after the date at which she claims to have improved. Further her general practitioner had provided continuing certificates to Centrelink about her need to continue to have a carer on the basis of both her psychiatric and her physical injuries. Once again, the Review Panel noted that there were no contemporaneous notes from her psychiatrist.

Psychiatric diagnoses 1. Post traumatic stress disorder 2. Adjustment disorder with depressed mood Psychiatric treatment Description Irregular Iovan and diazepam Category Class Reason for decision Self care and personal hygiene 3 Moderate impairment. We base this on her reliance on her husband and that he received a carer's pension and her general practitioner's most recent medical certificate prior to the motor accident. Social and recreational activities 3 Moderate impairment. She reported going to family lunches fortnightly. She did seem to be going out by herself. She was visited by girlfriend and went out with them shopping or for coffee Travel 1 No impairment Social functioning 1 No impairment Concentration 2 Mild impairment. She was able to do crosswords, read the newspaper and watch television. Her doctor's notes indicate that she had impaired concentration and cognitive functioning. Adaptation 4 She did little domestic work due to both physical and psychological injuries. Impairment due to psychological injuries is classed as severe due to her continual need for carer and doctor's reports of her symptoms pre-accident

List classes in ascending order Median Class Value 1 1 2 3 3 4 3

35 The Review Panel's summary of permanent impairment is as follows:

A Current % whole person impairment 22% B Pre-existing/subsequent % whole person impairment 13% Final % whole person impairment due to subject MVA (A-B) 9% 36 Guideline 7.18 instructs the Review Panel that in order to measure impairment caused by a specific event, the assessor must, in the cause of an injured person with a pre-existing psychiatric diagnosis or condition, estimate the overall pre-existing impairment using precisely the method set out in Chapter 7, and subtract this value from the current impairment rating. 37 The Review Panel specifically determined that Ms Graovac "had previously had an adjustment disorder with depressed mood related to her chronic back pain and her war time and refugee experiences including migration to Australia". The Review Panel also determined that Ms Graovac had suffered an "exacerbation" of two psychiatric conditions being post traumatic stress disorder and adjustment disorder with depressed mood. The Review Panel specifically identified two psychiatric diagnoses which were pre-existing, those being a post traumatic stress disorder and an adjustment disorder with depressed mood. 38 The Guidelines do not stipulate that the Review Panel must apply the criteria set out in DSM 4 to arrive at its own diagnoses for a pre-existing psychiatric condition. Rather the Guidelines focus on comparing and rating areas or aspects of daily functioning. If there is pre-existing impairment, the same rating scale of PIRS is applied as set out in Guideline 7.19. Then the total of the pre-existing impairment rating scale is deducted from the value of the current impairment rating to arrive at a percentage of permanent impairment caused by the motor vehicle accident. The reference in Guideline 7.13 to "the impairment must be attributable to a recognised psychiatric diagnosis is referring to the current one or ones caused by the motor accident. In my view the Review Panel did not fail to complete its statutory task. The Review Panel performed the statutory task required of it as set out in the Act and Guidelines and there is no basis to set aside the Review Panel's decision on this ground.

Relevant and irrelevant considerations 39 The parties referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 317 - 348. 40 Mason J (as he then was) in Peko, reviewed the decided cases and established a number of fundamental propositions in relation to the ground of taking into account irrelevant considerations. Those propositions included: "A. The ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision…

B. What factors a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion… In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard…

C. Not every consideration that a decision maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that a discretion be re-exercised according to law…" 41 Ms Graovac's counsel emphasised the following statements in Peko as being of particular importance in her case. They are: "D. The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the administrator by exercising a discretion which legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned…

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …" 42 In the joint judgment of McHugh, Gummow and Hayne JJ in Yusuf at [73] - [74] it was said: "[73] It is, of course, essential to begin by considering the statutory scheme as a whole… The considerations that are, or are not, relevant to the Tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider.

[74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law . They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts." (Emphasis added) (ii) Whether reliance on the medical records and reports of Dr Tomasevic was taking into account an irrelevant consideration 43 Ms Graovac's counsel submitted that it was evidence that the Review Panel relied on the contemporaneous clinical notes of Dr Tomasevic as evidence of the pre-existence of the post traumatic stress disorder. Dr Tomasevic's clinical notes record that at each consultations that took place on 19 June 2006, 17 July 2006, 18 August 2006, 2 November 2006, 8 November 2006, 17 November 2006 and 30 January 2007 than the symptoms complained of by the Ms Graovac were "insomnia, difficulty concentrating, not suicidal". 44 On 21 January 2006 (more than two years before to the motor vehicle accident) Ms Graovac first consulted Dr Sokolovic, a forensic psychiatrist. Dr Sokolovic (report dated 18/5/2009) identified that he had been treating Ms Graovac prior to the motor vehicle accident for a somatic impairment which led to adjustment problems and the development of anxiety and mild depression. Dr Sokolovic had diagnosed the disorders from which Ms Graovac was suffering pre-accident as dysthymic disorder, compounded with musculoskeletal pain, and a mild form of reactive anxiety and depression, compounded with adjustment disorder. I accept that Dr Sokolovic in his report made no mention that Ms Graovac was suffering from post traumatic stress disorder prior to the accident. But his clinical notes were not made available so the Review Panel was unable to refer to the source material to verify whether or not Dr Solokovic had diagnosed post traumatic stress disorder prior to the motor vehicle accident. 45 However, a copy of the Centrelink file was before the Review Panel. Dr Tomasevic, the general practitioner, completed a treating doctor's report for Centrelink on 18 August 2006 (that being eight months prior to the motor vehicle accident). Dr Tomasevic relevantly answered the question "Does the patient have any other medical conditions which are generally well managed and cause minimal or limited impact on ability to function?" and answered "Yes" and identified that Ms Graovac suffered from post traumatic stress disorder. Dr Tomasevic noted that she was receiving psychiatric therapy from Dr Sokolovic and that no significant improvement was expected (see Bundle p 66). 46 Counsel for Ms Graovac says that these matters give rise to two complaints. The first complaint is that the Act and Guidelines place importance on "suitably qualified persons to be medical assessors for the purposes of this Part" (see s 59(1) of the Act) and Dr Tomasevic is a general practitioner, not a trained or qualified psychiatrist. Therefore, according Ms Graovac, Dr Tomasevic's diagnosis as to the condition suffered by her prior to the accident is not a relevant consideration under the Act. Ms Graovac's second complaint is that the Review Panel's reliance upon Dr Tomasevic's putative diagnosis for the purposes of a Centrelink application is within the context and framework of the Act an irrelevant consideration. 47 Counsel for the NRMS submitted that Ms Graovac is inviting the court to review the evidence before the Review Panel and thereafter to substitute its own decision for that of the Review Panel. In effect, the NRMA says that Ms Graovac is criticising the determination of the Review Panel when she elected not to provide to the Review Panel the contemporaneous clinical notes of Dr Sokolovic and gave no explanation for the failure to provide those notes. 48 In the absence of Dr Sokolovic's contemporaneous notes the Review Panel's had to take into account the material that was before it and the history given by Ms Graovac. The material included the contemporaneous clinical notes of Ms Graovac's general practitioner Dr Tomasevic and as the Centrelink form completed by Dr Tomasevic. The clinical notes of Dr Tomasevic provided history as supplied by Ms Graovac over the course of those consultations. 49 If Ms Graovac elected not to provide Dr Sokolovic's clinical notes as requested, she is in a difficult position to argue that in the absence of these documents the Review Panel took into account an irrelevant consideration. Those other records being the contemporaneous records that filled in the gaps of Dr Sokolovic's report, the Centrelink form completed by Dr Tomasevic and that of her general practitioner dated 18 August 2006 and Dr Tomasevic's notes in the Centrelink document. Dr Tomasevic identified the source of the diagnosis, the post traumatic stress disorder, as emanating from Ms Graovac's psychiatrist Dr Sokolovic. 50 In my view, any diagnosis of a pre-existing psychiatric disorder is a relevant consideration. In addition to the Centrelink form diagnosis, a specific file note by Dr Tomasevic dated 5 June 2006 referred to clinical notes from Dr Talic that indicated that Ms Graovac was suffering from headache, depression and post traumatic stress disorder. 51 The Review Panel comprising of three psychiatrists was entitled, in the exercise of their clinical judgment, to consider all of this evidence, afford what weight it considered appropriate and make an appropriate determination. In my view the Review Panel did not take into account an irrelevant consideration. This ground seeking judicial review fails. (iii) Whether possibility of the resolution of the Post Traumatic Stress Disorder, failure to take into account a relevant consideration 52 In DSM 4, at p 466, under the discussion relevant to post traumatic stress disorder it is stated, relevant to the duration of the disorder, that the: "… duration of the symptoms varies, with complete recovery occurring within 3 months in approximately half the cases, with many others having persisting symptoms for longer than 12 months after the trauma. In some cases, the course is characterised by a waxing and waning of symptoms. Symptom reactivation may occur in response to reminders of the original trauma, life stresses or new traumatic events." 53 As previously mentioned, the Review Panel when considering whether or not there had been a resolution of her previous post traumatic stress disorder, stated that the Panel considers that her prior disorders of post traumatic stress disorder and adjustment disorder with depressed mood had not resolved as her general practitioner's progress notes do not show a change in her symptoms after the date at which she claims to have improved. 54 Ms Graovac emphasised a sentence in the report of Dr Sokolovic dated 18 May 2009 where he stated that on or about 9 November 2006 when Ms Graovac withdrew from his care "she appeared optimistic and intended to withdraw from the assistance of her carer and of her pension. She was reducing her medication with the intention significantly to curtail it". 55 Ms Graovac submitted that while the Review Panel did mention the absence of any contemporaneous clinical notes from the psychiatrist as the reason for relying on the notes of Dr Tomasevic, she says that no real consideration was given to the possibility that the her pre-existing condition may have resolved itself apart from a scant mention as to the record of improvement of her symptoms as at November 2006. Ms Graovac also says that there is also a remarkable incongruity between the Review Panel's reliance on the records of Dr Tomasevic and its own record of the plaintiff's reported symptoms prior to the accident where it recorded relevantly that prior to the accident: "… She thinks she largely had mood problems because of her back. She said she continued to take the prescribed tablets (lovan and diazepam) a few times per month or if she had any symptoms. She said she no longer had nightmares or mood problems.

Social function Just prior to the motor accident in March 2007: ● She lived in Liverpool in a rented unit with her husband and son. ● She had members of her husband's family living nearby. ● She went shopping with her husband or her husband's aunt. ● She cooked and her husband helped. ● Her husband vacuumed. ● If she had pain, her husband would do the bathrooms. ● She dusted, did the dishes and the laundry. ● She read newspapers in Serbian. ● She watched Serbian television. ● She did crosswords. ● She went to family functions such as lunches (once every 10 to 15 days). ● She had a few Serbian friends from outside of the family who she visited with once per week.

On further questioning she said that when she went shopping with her husband he did everything and she just went along." 56 I agree that if the previous psychiatric condition had properly been resolved, then there would be no pre-existing medical condition to apportion. 57 In so far as the history Ms Graovac provided to the Review Panel it stated that she could not be considered a reliable historian, the history of cessation of medication being inconsistent with the clinical notes. The Review Panel also commented that Ms Graovac was vague about dates and gave conflicting and contradictory information at times. Ms Graovac asserted that the finding that the post traumatic stress disorder had resolved was consistent with the report given by Dr Sokolovic. 58 The NRMA submitted that once again Ms Graovac's counsel has invited this court to undertake a detailed analysis of the Statement of Reasons and the material before the Review Panel and seeks judicial review on "consideration" grounds in this context. It is impermissible to do so and Ms Graovac's grounds for review amount to no more than a merits review. 59 Ms Graovac submitted that by relying on the material emanating from Dr Tomasevic, which are for reasons expressed above are irrelevant considerations, the Review Panel has constructively failed to take into account the possibility that that the post traumatic stress disorder may have been resolved and in so doing, this constitutes a failure to take into account the relevant consideration. 60 According to counsel for Ms Graovac this error is further truncated by the fact that in his report dated 4 May 2009, as considered by the Review Panel, Dr Tomasevic identified that: "Prior to the motor vehicle accident on 24 April 2007 Mrs Graovac suffered from depression and was receiving psychiatric therapy from Dr Sokolovic. Prior to the motor vehicle accident on 24 April 2007 Mrs Graovac's husband was her full time carer due to Mrs Graovac's chronic complex medical conditions. I understand that Mrs Graovac's husband was receiving a Carer's Payment allowance for being the carer for Mrs Graovac prior to the motor vehicle accident on 24 April 2007." 61 Ms Graovac referred to this passage and submitted that at no stage in his report did Dr Tomasevic record that prior to the motor vehicle accident she was suffering from post traumatic stress disorder. But this submission is incorrect. I have already referred to the reference to post traumatic stress disorder prior to the motor vehicle accident under the previous heading. 62 The Review Panel determined that Ms Graovac suffered from post traumatic stress disorder prior to the accident. That condition had been a longstanding one and the Review Panel made a specific determination that "her prior disorders of post traumatic stress disorder and adjustment disorder had not resolved" and that her general practitioner's progress notes did not show a change in her symptoms after the date on which she claims to have improved. It is my view that the Review Panel did not take into account an irrelevant consideration, nor did it fail to take into account the possibility that the post traumatic stress disorder may have been resolved. The approach of the Review Panel on the issue of whether the post traumatic stress disorder had resolved prior to the motor vehicle accident does not constitute the failure to take into account the relevant considerations. The Review Panel made its determination in accordance with the provisions of the Motor Accidents Act and the Guidelines. This ground of judicial review fails. The application for judicial review fails. 63 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the third defendant's costs as agreed or assessed.

(2) The summons filed 22 February 2010 is dismissed.

(3) The plaintiff is to pay the third defendant's costs as agreed or assessed. **********

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