Insurance Australia Limited t/as NRMA Insurance v Momand

Supreme Court of NSW|2024-11-12|Before: Price AJ

JUDGMENT

Insurance Australia Limited trading as NRMA Insurance ("the plaintiff") seeks judicial review of a decision of the Delegate of the President of the Personal Injury Commission ("PIC") made on 8 February 2024. The President of the PIC is the second defendant in this Court. The President has filed a submitting appearance. In these reasons, I will refer to the first defendant as the defendant.

The grounds of review

The grounds of review are: 1 The Decision is infected by constructive jurisdictional error in that the President's Delegate, Ms Sophie Jones, the Second Defendant: (i) failed to respond to a substantial claim or argument, seriously advanced. Particulars (a) The Certificate stated that the First Defendant, Hedgerat Ahmad Momand, had sustained post-traumatic stress disorder (PTSD) arising from a motor vehicle accident which occurred on 11 March 2021, giving rise to 15% whole person impairment (WPI). (b) On 28 November 2023 the Plaintiff lodged the Review Application with the President of the Commission (Review Application), relating to a medical dispute about the First Defendant's claim for assessment under Div 7.5 of the MAI Act, seeking referral to a review panel for review of the certificate issued by Dr Abhishek Nagesh (Medical Assessor) on 9 November 2023 (Certificate) and the reasons for his medical assessment (Medical Assessment). (c) The Plaintiff's written submissions lodged with the Review Application, dated 28 November 2023, claimed that the President should have reasonable cause to suspect that the Medical Assessor erred in a material respect by: A. failing to address the Plaintiff's substantial argument, seriously advanced, that the diagnostic criteria could not be made out for PTSD, in particular as the First Defendant was not exposed to death or threatened death in a severe motor accident, relevantly within criterion A in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) (Submission (1)); B. failing to engage with, by giving active intellectual consideration to, the biomechanical report of Dr Andrew McIntosh dated 21 October 2021 (McIntosh Report) evidencing minor damage to the vehicles involved in the motor accident and including an analysis of speed at impact and the forces involved (Submission (2)). (d) In the Decision of the Second Defendant: A. found that the Medical Assessor did not fail to take into account the McIntosh Report because it was referred to in the Medical Assessment, and that this sufficed; and B. did not address the Plaintiff's Submissions (1) and (2), namely that the Medical Assessor failed to address the two issues which were the subject of Submissions (1) and (2), and which were analysed in the McIntosh Report. (e) The Second Defendant was not satisfied that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect, and as a consequence did not refer it to a review panel. (ii) failed to have regard to the particulars set out in the Review Application as required by s 7.26(5) of the MAI Act. Particulars (a) Particulars (a) to (e) of paragraph (i) are repeated. (iii) misconceived the power in s 7.26(5) by failing to consider whether the Medical Assessment was incorrect in a material respect for failure to determine whether the injury of PTSD was caused by the motor accident, and whether the degree of permanent impairment was as a result of the injury. Particulars (a) The Decision failed to consider whether the Medical Assessment properly determined whether the injury was caused by the motor accident, as required by the MAI Act ss 1.4(1)(a), (b), 109 [sic]. (b) The Decision failed to consider whether the Medical Assessment properly determined whether the degree of permanent impairment of the First Defendant was as a result of an injury caused by the motor accident in that it was caused by, or materially contributed to, by the accident, as required by the State Insurance Regulatory Authority Motor Accident Guidelines (Version 9.2 commenced on 10 November 2022) (Guidelines), clauses 6.5-6.7. (c) The Decision failed to consider whether the Medical Assessment applied the Guidelines clause 6.213, which requires in a case of a mental or behavioural disorder, assessment as to whether the impairment is attributable to a psychiatric diagnosis recognised by the current edition of the DSM-V, this being in relation to PTSD, that: A. the First Defendant was exposed to actual or threatened death, serious injury, or sexual violence within Criterion A of DSM-V; B. relevantly, the First Defendant directly experienced a traumatic event of a "severe motor accident" within Criterion A of DSM-V. C. the First Defendant's symptoms were not due to substance misuse or general medical condition, as required by Criterion G of DSM-V. (d) The Medical Assessment failed to determine whether the injury of PTSD was caused by the motor accident, or whether the permanent impairment was as a result of the injury. (e) By failing to consider whether the Medical Assessment addressed the issue of causal connection between the PTSD and the motor accident, the Second Defendant misconceived the exercise of the power under s 7.26(5) of the MAI Act to form a state of satisfaction as to whether there was reasonable cause to suspect that there was material error in the Medical Assessment. (iv) failing to conclude that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect on account of the finding in the Medical Assessment that the First Defendant had a "significant accident where he was exposed to death", when there was no evidence to support that finding. (v) could not reasonably have reached the conclusion that she did not reasonably suspect that the Medical Assessment was incorrect in a material respect. 2 In the alternative to Ground 1 paragraph (i), the Second Defendant denied the Plaintiff procedural fairness by failing to respond to a substantial claim or argument, seriously advanced. Particulars (a) Particulars (a) to (e) of Ground 1 paragraph (i) are repeated. 3 In the alternative to Grounds 1 and 2, there is error of law on the face of the record of the Decision in that there appears on the record: (i) the errors in Grounds 1 paragraphs (i) to (v); and (ii) the legal error of failure to give adequate reasons. Particulars (a) The record includes the reasons of the Second Defendant, for the purposes of s 69(4) of the Supreme Court Act 1970 (NSW). (b) The Second Defendant's reasons fail to explain the logical pathway for reaching the finding that the motor accident was a "significant accident where he was exposed to death", when the evidence of the insured driver and the expert opinion of Dr McIntosh supported a finding that it was not.

The material before the medical assessor

Before venturing further, it is convenient to refer to some of the material before the medical assessor.
The documents filed on behalf of the defendant included two medico-legal reports of Dr Michael Prior, the defendant's statement of evidence and submissions made on his behalf. In the submissions, the defendant sought a determination that: "a. The injuries sustained are causally related to the subject motor accident; and b. The injuries exceed the 10% permanent impairment threshold."
The defendant provided the following account of the motor vehicle accident in his evidentiary statement: "… I was driving along the M4 motorway in an easterly direction when the car in front of me slammed on his brakes. I subsequently applied my own brakes to avoid a collision. The car behind me failed to stop and collided into the rear of my car at a speed of about 70 to 80km/h. As a result of the impact of the collision, my head hit the ceiling of my car and then the electronic head rest. The headset broke in half as a result of the impact. As a result of the accident, I sustained injuries to the following: Injury to the neck; Injury to the back; Persistent headaches; and PTSD."
The history taken from the defendant by Dr Prior of the circumstances of the motor vehicle accident and recorded in the report dated 27 January 2022 is largely consistent with the defendant's statement. Dr Prior was unable at the time of that report to provide an opinion as to whether the defendant's injuries were permanent.
Dr Prior re-examined the defendant in January 2023. In his report dated 16 January 2023, Dr Prior's diagnosis included chronic PTSD and co-morbid persistent depressive (chronic major depressive type) with associated generalised anxiety and panic/agoraphobic symptomatology.
On the issue of causation, Dr Prior opined that "[t]he cause of his chronic [PTSD] was the subjectively traumatic nature of the motor vehicle accident."
Dr Prior assessed the defendant's whole person impairment to be 26%.
In the plaintiff's reply submissions dated 23 March 2023, the plaintiff's solicitor recounted that: "A dispute exists pertaining to whether his injuries are causally related to the accident and the degree of permanent impairment in relation to the accident-related injuries."
After noting that the plaintiff had arranged a medico-legal appointment with Dr Whetton on 26 May 2023 for assessment of the defendant and comment on Dr Prior's "WPI assessment", the plaintiff contended that the defendant had prematurely brought the PIC (medical assessment) dispute and submitted that the application be dismissed to allow the plaintiff the opportunity to "properly make a decision regarding whole person impairment".
In the application to admit late documents, the plaintiff's reasons in support of the application included: "The insurer states that Dr McIntosh's report addresses the forces involved in this accident and it is clear from the same that the claimant does not meet the DSM5 criterion for a Post Traumatic Stress Disorder, namely the claimant was not exposed to actual or threatened death, or serious injury. Indeed the reports of Dr Keller and Dr Rimmer set out the minor nature of the physical injuries sustained by the claimant in this minor accident."
The documents admitted by the President's Delegate included the Collision and Biomechanics report of Dr McIntosh dated 21 October 2021 and medico-legal reports of Dr Keller dated 9 March 2023, Dr Rimmer dated 21 March 2023 and Dr Whetton dated 29 May 2023.
The opinions expressed by Dr McIntosh in the biomechanical report included the following: 1. The damage to each vehicle was minor, as shown in the photographs; 2. Based on the vehicle damage, the closing speed was most likely in the range of approximately 10 to 15 km/h with a change in velocity of approximately 8 to 12 km/h; 3. This was consistent with the statement of the insured driver, in the CTP-Insurance Accident Report Form dated 30 June 2021, that he was travelling at 30 to 40 km/h because of the traffic density and the defendant drove into the gap he had left between his vehicle and the vehicle in front. The information provided by the insured driver also included that there was minimal damage and the cars were driveable; 4. The magnitude of the biomechanical forces acting on the defendant would have been low; 5. It was very unlikely that the defendant's head impacted the ceiling based on the dynamics of a seatbelt-restrained occupant in a rear end collision. It was likely that the defendant's head contacted the head restraint which would have protected his neck and reduced injury risk; 6. The mechanics of the collision could have reasonably led to the defendant suffering a whiplash associated disorder/soft tissue injury involving the neck with symptoms of a closed period, e.g. less than one month; 7. The mechanics of the collision could not have reasonably led to the defendant suffering whiplash of protracted duration, cervical spine injury, thoracic-lumbar spine injury and upper limb injury; 8. The collision was not severe and the biomechanical forces were not sufficient to cause any bone fractures or organ injuries. The biomechanical forces were not close to a magnitude that would be considered to cause serious or life-threatening injuries; and 9. Regarding PTSD, the biomechanical forces experienced by the defendant were not likely of a similar magnitude to those experienced in many vigorous physical activities and not close to a magnitude that would be considered capable of causing serious or life-threatening injuries. The defendant was driving a safe vehicle.
Dr Keller, an occupational physician, reported that the defendant told him that whilst travelling at 90 km/h, he had to stop suddenly to avoid the car in front of him. His vehicle was then hit from behind. Airbags were not deployed and he drove the car home. He was unaware of any immediate pain or injury. The defendant said that on the night of the crash he developed headaches, neck and back pain and some bruising and pain in the right upper limb. In providing his diagnosis, Dr Keller noted that there were no immediate injuries and only minor damage to the defendant's car. He opined that the evidence for low mechanical force was not sufficient to cause any of the defendant's current claimed injuries. There were no physical injuries attributable to the accident, other than bruising to the right arm which had resolved within a few weeks. He remained physically fit for work without restriction.
Dr Rimmer, an orthopaedic surgeon, opined that the defendant's cervical spine and lumbar spine were entirely normal. He noted that the defendant repeatedly stated that all his restrictions were psychological and related to anxiety and depression, which were symptoms not within Dr Rimmer's area of expertise. Dr Rimmer stated that with regards to an orthopaedic/physical perspective, the defendant had well and truly recovered from what he would describe at most as a minor motor vehicle accident.
The plaintiff's submissions in reply dated 12 September 2023 were also admitted by the Delegate. In those submissions, the plaintiff submitted: "g. The physical evidence at the scene of the accident as recorded and commented on by Dr McIntosh and the examination of physical injuries by both Dr Rimmer and Dr Keller confirm that this was a minor accident in which the claimant sustained minor soft tissue injuries, if any physical injury at all. h. The forces involved in the accident and the actual or threatened physical injury to the claimant were minor. … 4. While the insurer has recently received a report of Dr Whetton, psychiatrist, dated 29 May 2023, the insurer does not rely upon Dr Whetton's report and states that his diagnosis of a post traumatic stress disorder is not consistent with the diagnostic criteria in DSM 5 as there was no life-threatening trauma in this accident, as much being clear from the biomechanical analysis of Dr McIntosh. 5. Further, while Dr Whetton had Dr McIntosh's report made available to him, he did not engage with it. Indeed, he makes no reference to it in the report at all. 6. The insurer submits that had Dr Whetton engaged with Dr McIntosh's report and independently considered the forces involved in the accident, he would have been satisfied that the claimant's recount of the accident is inaccurate; the claimant did not have exposure to actual or threatened death, or serious injury as required to meet they [sic] DSM 6 diagnostic criteria for a Post-Traumatic Stress Disorder. 7. The insurer submits that the assessment of the claimant's impairment needs to proceed with caution as the subjective reporting of the circumstances of the accident by the claimant is at complete odds with the evidence of Dr McIntosh. The claimant's history cannot be verified by the physical evidence at the scene of the accident and the absence of physical harm caused by the accident."

The assessment by the medical assessor

In his reasons for issuing the MAC, the medical assessor recorded the plaintiff's submissions as follows: "The respondents [sic] make a submission that there is no clinical evidence that would suggest that medical cannabis will provide any functional benefit to the claimant nor will it assist in the recovery of the claimant's symptoms of post-traumatic stress disorder. The respondent submits that the claimant's psychological injuries do not result in impairment greater than 10%."
Under the heading "Summary of Documents Considered", the assessor stated that he had considered the documents provided in the application and reply. He stated that "[n]o additional documents were provided". However, under the heading "Review of Documentation" the assessor stated that he had reviewed all documents submitted to him by PIC. [1] He then referred to documents having been "central to [his] submission". Included in the list of those documents is Dr McIntosh's report.
The history of the motor vehicle accident that the medical assessor took from the defendant included the following: "He was exiting Church Street from the M4 where he was rear-ended by another vehicle at a speed of 80 kilometres per hour … Mr Momand states that his head hit the roof and his arm hit the side of the window. There was no loss of consciousness. Airbags were not deployed, and he was able to self-extricate. Ambulance and police were not called to the scene, and he was able to exchange information. The car was not a write-off. Mr Momand states that because of the collision and the impact of his head to the ceiling, he was in excruciating pain…". [2]
In his diagnosis, the medical assessor stated: "Mr Momand described symptoms in my opinion are consistent with someone suffering from post-traumatic stress disorder and persistent depressive disorder. This is also reflected in the contemporaneous records of his psychologist and psychiatrist who have also diagnosed him with comorbid major depressive disorder and post-traumatic stress disorder. Mr Momand meets the criteria under DSMV category as follows: Criteria A - the subject accident was severe enough that he was exposed to death and threatened death. My rationale is, he was impacted from the rear at a speed of 80 kilometres per hour, which resulted in his head being smashed into the window." [3]
Under the heading "Causation and reasons", the medical assessor stated: "His diagnosed post-traumatic stress disorder was caused by the subject MVA as it was a significant accident where Mr Momand was exposed to death."
The medical assessor determined that the defendant's PTSD and Persistent Depressive Disorder were caused by the motor vehicle accident.

The referral application

The plaintiff submitted that the MAC and reasons of the medical assessor were incorrect in a material respect. The plaintiff's submissions included: "a. The Assessor failed to engage with the biomechanical report of Dr McIntosh, including Dr McIntosh's analysis of the speed of impact and the forces involved; b. The Assessor failed to address a clearly articulated argument made by the insurer, namely that the diagnostic criteria could not be made out for a post-traumatic stress disorder as the claimant was not exposed to death and/or threatened death in the accident; (conveniently referred to as submission (1)in the plaintiff's submissions in this court) c. The Assessor failed to give reasons why he preferred the claimant's version of the forces involved in the accident over the expert opinion of Dr McIntosh and the lay evidence of the insured; d. The Assessor failed to bring to the claimant's attention the inconsistency between the claimant's stated speed at impact and the evidence of Dr McIntosh, denying the parties procedural fairness …"
The plaintiff submitted that the medical assessor in accepting the defendant's history of the accident failed to engage with Dr McIntosh's report and did not "actively engage intellectually with all relevant documentation to resolve the issue of whether the trauma in the accident met diagnostic criterion A in DSM-5 for PTSD ("submission (2)").
The plaintiff contended that the assessor failed to consider the insurer's "clearly articulated argument" set out in its further submissions and as such, the insurer has not been afforded procedural fairness: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 ("Dranichnikov").
A further submission was made: "… the Assessor's reasons for determining the subject accident satisfied criterion A of PTSD are insufficient given the unresolve [sic] inconsistencies between the reported speeds of the accident and head strike with the roof, and the objective evidence demonstrating markedly low speeds involved in the subject and improbability of head strike with the roof." [4]
In the defendant's submissions in reply, the defendant noted that the medical assessor confirmed that Dr McIntosh's report was one of the documents central to his decision. The defendant submitted that the medical assessor was not obligated to provide elaborate reasoning as to why he rejected the findings of Dr McIntosh. The defendant contended that the medical assessor had provided a clear rationale as to why he determined that the accident was causative of the PTSD giving rise to a permanent impairment of 15%. The defendant submitted that there was no objective evidence to corroborate the plaintiff's submission that the accident was not of high enough impact for the defendant to be exposed to death or threatened death.

The reasons of the Delegate

The Delegate relevantly noted the plaintiff's submissions that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect on the basis that it contained the following errors: "Failure to engage with the biomechanical report of Dr McIntosh; failure to give reasons why he preferred the claimant's version of the forces involved in the accident over the expert opinion of Dr McIntosh; failure to bring to the claimant's attention to the inconsistency between the claimant's stated speed and the evidence of Dr McIntosh (referred to as submission (2) in the plaintiff's submissions in this court). Failure to address a clearly articulated argument made by the insurer that the diagnostic criteria could not be made out for Post Traumatic Stress Disorder as the claimant was not exposed to death and/or threatened death in the accident" (referred to as submission (1) in the plaintiff's submissions in this court).
In her reasons, the Delegate noted the defendant's submission that the medical assessor stated that Dr McIntosh's report was one of the documents "central to his decision" and the assessor was not obliged to provide elaborate reasons as to why he rejected the findings of Dr McIntosh.
The Delegate went on to state: "10. Whilst a medical assessor is required to evaluate all the available evidence, Adamson J held in Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46], 'a medical assessor's duty is to come to his or her own opinion and take his or her own history, not to analyse every piece of information from every opinion contained in a document with which he was provided.' 11. In addition, a medical assessor is entitled to decide how much weight to give the evidence: 'it may be dismissed, given little weight, or decisive weight': QBE Insurance (Australia) Limited v Alawia [2016] NSWSC 1875 at [61]. 12. At paragraph 6 of the certificate, the Medical Assessor stated that he had considered the documents provided in the application and reply. … 15. The Medical Assessor has stated that he considered the documentation and listed the collision and biomechanics report as one of the documents that he considered 'central'. The Medical Assessor was not under any obligation to analyse every piece of information and was entitled to decide how much weight to give the evidence. 16. I am not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect on the ground of failure to engage with the biomechanical report of Dr McIntosh."
The Delegate then considered the plaintiff's submission that the medical assessor's reasons for determining the subject accident satisfied Criterion A of PTSD were insufficient given the unresolved inconsistencies between the reported speeds of the accident and the objective evidence demonstrating the low speeds involved.
The Delegate referred to criterion A of the diagnostic criteria for PTSD as listed in DSM-5 and noted the medical assessor's finding that the defendant met the diagnostic criteria for PTSD and persistent depressive disorder. The Delegate found that: "22. In undertaking the assessment, the Medical Assessor reviewed and evaluated all the medical evidence, including the biomechanical report, took a history from the claimant and undertook a clinical examination. The Medical Assessor as a psychiatrist, was satisfied that the claimant met the diagnostic criteria for two psychiatric diagnoses and set out the full diagnostic criteria in his reasons. 23. I am not satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect on the ground that the Medical Assessor's reasons in respect of criterion A for PTSD are insufficient."

The Motor Accident Injuries Act 2017 (NSW)

The definition of a "motor accident" in s 1.4 of the MAI Act is as follows: motor accident-means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during - (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control, or (d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.
Section 1.9 of the MAI Act provides that the MAI Act relevantly applies in respect of injury to a person that results from the use or operation of a motor vehicle "only if… the injury is a result of and is caused during (a) the driving of the vehicle or (b) a collision or action taken to avoid a collision with the vehicle…".
Section 7.1 defines a "medical assessment matter" to mean "a matter declared by schedule 2 to be a medical assessment matter for the purposes of this part."
Pursuant to s 7.21(1), "the assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accidents Guidelines."
Section 7.23(7) of the MAI Act provides: 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.
Schedule 2 of the MAI Act declares that "the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident" is medical assessment matter.

State Insurance Regulatory Authority, Motor Accidents Guidelines

Clauses 6.5, 6.6 and 6.7, 6.213 are as follows: Causation of injury 6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues. 6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: 'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following: 1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. 2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.' This, therefore, involves a medical decision and a non-medical informed judgement. 6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes. … Assessment of mental and behavioural disorders 6.213 The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Disease & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based.

Diagnostic and Statistical Manual of Mental Disorders, DSM-5

At 309.81, DSM-5 sets out the diagnostic criteria for PTSD in adults: "A. Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways: 1. Directly experiencing the traumatic event(s) … Diagnostic Features The essential feature of posttraumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events. … The traumatic events in Criterion A all involve actual or threatened death, serious injury or sexual violence in some way but differ in how the individual is exposed to them, which can be through directly experiencing the traumatic event (Criterion A1). … The directly experienced traumatic events in Criterion A include, but are not limited to, exposure to war as a combatant or civilian, actual or threatened physical assault in which the threat is perceived as imminent and realistic (e.g., physical attack, robbery, mugging, childhood physical abuse), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human-made disasters, and severe motor vehicle accidents."

A summary of the grounds of review

The plaintiff raises three grounds of review in relation to the decision of the Delegate. However, ground 1(i)-(v) identifies what are asserted to be specific errors. Those errors, shortly stated, are said to be: 1. (i) Constructive jurisdictional error, in that the Delegate failed to consider a substantial claim or argument advanced; 2. (ii) Constructive jurisdictional error in that the Delegate failed to have regard to the particulars set out in the referral application as required by s 7.26(5) of the MAI Act; 3. (iii) Constructive jurisdictional error in that the Delegate failed to consider whether the medical assessment was incorrect in a material respect by reason of the medical assessor's failure to determine whether the injury of the PTSD was caused by the motor accident, and whether the degree of permanent impairment was as a result of the injury; 4. (iv) Constructive jurisdictional error in that the Delegate failed to conclude that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect on account of the finding in the medical assessment that the defendant had a "significant accident where he was exposed to death" when there was no evidence to support that finding; 5. (v) Constructive jurisdictional error in that the Delegate could not reasonably have reached the conclusion that she did and not reasonably suspect that the medical assessment was incorrect in a material respect."
Ground 2 asserts a denial of procedural fairness. Ground 3 asserts an error on the face of the record.
Ground (1)(i)-(v) may be conveniently dealt with together.

Submissions

The plaintiff referred to the submissions made to the Delegate which are recorded at [32]-[35] above. The plaintiff complained that the Delegate failed to appreciate the gravamen of submission (1); (see at [32] above) which the plaintiff contended relied on the ground in Dranichnikov. Submission (1) was that Criterion A in DSM-5 was not established. The plaintiff submitted that the Delegate proceeded on the basis that the plaintiff was alleging a failure to take into account a "Peko-Wallsend" relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 ("Peko-Wallsend").
The plaintiff submitted that the Delegate's reliance in her reasons on Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435; (2014) 68 MVR 445 and QBE Insurance (Australia) Limited v Alawia [2016] NSWSC 1875 also demonstrate a failure to appreciate the nature of submission (2); (see [33] above). Submission (2) was not an argument that the McIntosh Report was a relevant consideration that the medical assessor failed to take into account as one item of evidence. The plaintiff submitted that it was a Dranichnikov argument that the medical assessor failed to address the plaintiff's claim that Criterion A in DSM-5 was not satisfied.
The plaintiff contended that by misunderstanding submissions (1) and (2), the Delegate failed to direct them to an active intellectual process before rejecting them. The plaintiff submitted this was a failure to have regard to the particulars set out in the referral application, resulting in invalidity of the Delegate's decision.
The plaintiff argued that the McIntosh Report demonstrated on the basis of objective evidence, the minor nature of the collision and if that evidence was accepted, it was not open to a psychiatrist to be satisfied as to Criterion A. The plaintiff submitted that the medical assessor based his finding that the accident was severe exclusively on the premise that it was the speed of the other vehicle at 80 km/h that caused the defendant to smash his head into the window. The plaintiff pointed out that these claims were disputed which was made clear in the McIntosh Report and the plaintiff's late document submissions.
In simply assuming that the accident was severe and life threatening, the plaintiff argued that the medical assessor failed to determine causation. The plaintiff pointed out that the referral application raised an issue as to whether the required causal connection between the motor vehicle accident and the PTSD was established. The plaintiff contended that the Delegate failed to consider whether the medical assessor properly determined whether the PTSD was caused by the motor vehicle accident.
The plaintiff complained that the medical assessor's reasons did not explain the path of reasoning whereby he reached the conclusions quoted at [29] and [30] above. The further argument that the defendant's statement that the other vehicle's speed was 80 km/h was not evidence and was no more than a claim.
The defendant submitted that the Dranichnikov error advanced by the plaintiff was not available. The defendant contended that the clearly articulated argument raised by the plaintiff in the application before the Delegate was substantially different from the argument raised in the submissions document before the medical assessor. The propositions to the medical assessor did not extend to the detail, or grounds raised in the submissions to the Delegate. The defendant submitted that no submission had been made to the medical assessor that the defendant's version of events could not be accepted whereas such a specific submission was put to the Delegate. The submissions to the medical assessor, it was contended, went no further than care being taken in respect of the defendant's account because it differed from other evidence that was before the medical assessor.
The defendant submitted that a Dranichnikov error requires a substantial argument which is clearly material or of undoubted relevance to the dispute. The defendant argued that this had not been established in the present case. The defendant pointed out that neither Dr McIntosh nor Dr Whetton had articulated the substantial argument. The defendant submitted that the medical assessor undertook a clinical consultation with the defendant and obtained from him a history as to the accident. The defendant submitted that the McIntosh Report was based on assumptions and not established facts. Matters of speed and forces were in dispute.
The defendant submitted that the Dranichnikov ground of review is the failure to respond to a substantial, clearly articulated argument "relying on established facts", and if that is satisfied, gives rise to a procedural fairness error. Dr McIntosh's opinion did not fall within the notion of "established facts". It was submitted that the alleged Dranichnikov error was not available, and this ground of appeal must fail.
A further contention was that the plaintiff's argument was not "substantial". The defendant cited Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156; (2016) 77 MVR 78 ("Milton") at [9].
The defendant submitted that the medical assessor, a qualified medical practitioner, was entitled to rely on his skill and judgment as a medical practitioner in his task of determining the defendant's whole person impairment in accordance with the statutory provisions and guidelines. The medical assessor undertook a clinical consultation with the defendant and obtained a history of the circumstances of the accident from him which were said to be not materially different to the plaintiffs' insured driver's description of the accident.
It was argued that the medical assessor did not simply assume that the accident was severe as he accepted the defendant's account. The defendant submitted that on the medical assessor's acceptance of the defendant's account there was no causation error, so there was no reason for the Delegate to consider a non-articulated complaint about causation. It was submitted that the medical assessor's acceptance of the defendant's account answers the plaintiff's "no-evidence" challenge.
Another submission was that the Delegate dealt with the PTSD diagnosis complaint at paragraphs 17-23 of her reasons which contain the path of reasons for the decision made and which in an orthodox and correct analysis resulted in the Delegate's decision.
In oral argument, Counsel for the defendant Mr Romanuik SC submitted that the plaintiff's contention that there had to be an involvement in a severe motor vehicle accident "to sustain the satisfaction of Criterion A on the face of the DSM document itself" [5] was not correct. He submitted that there always has been a subjective element to a clinician's consideration of whether the diagnosis under the DSM had been made out.
Mr Romaniuk submitted that the McIntosh Report focused on what was described as the closing speed. He argued that the respective estimations of speed by the defendant and the insured driver were not necessarily inconsistent.
Mr Romaniuk placed emphasis on the difference in the plaintiff's submissions to the medical assessor and to the Delegate. He argued that the differences create "a curious situation where the attack made on the… Delegate's reasons has a large element of criticism on the… Delegate not dealing with the arguments made on that application in a setting where those arguments were not made to the medical assessor". [6]
In submissions in reply, the plaintiff contended that the argument advanced to the medical assessor relied on established facts which were the extent of the damage to the two vehicles demonstrated by the photos, the mass and the safety features of the vehicles. The plaintiff submitted that Dr McIntosh relied on these established facts together with scientifically established assumptions for the calculation of the biomechanical forces.
In oral argument Counsel for the plaintiff, Ms Allars SC, submitted that the meaning of "established facts" in the judgment of Gummow and Callinan JJ at [24] in Dranichnikov was unclear. Ms Allars submitted that it was not an important discrete component of the Dranichnikov test and there had been a line of cases where that had not been an issue. Ms Allars argued that the argument advanced by the plaintiff had factual support and was not abstract.
As to the defendant's argument that the Dranichnikov argument was not put to the medical assessor, Ms Allars pointed in particular to the late documents admission application. Ms Allars submitted that the argument had to be framed differently to the Delegate because of the medical assessor's reasons.

Consideration

I do not agree with the defendant's first proposition that the plaintiff's clearly articulated argument put to the Delegate was not made to the medical assessor. Whilst it was not put in the same terms as the argument to the Delegate it was made clear in the plaintiff's written submissions in reply recorded at [25] above that the plaintiff contended: 1. The motor vehicle accident was minor; 2. The actual or threatened physical injuries were minor; and 3. The diagnosis of PTSD was not consistent with DSM-5 (Criterion A) as the defendant had not been exposed to actual or threatened death or serious injury by directly experiencing the traumatic event of a severe motor vehicle accident.
The plaintiff's submissions were accompanied by the late submissions documents which included the McIntosh Report. The plaintiff had emphasised that the "physical evidence" at the accident scene "as recorded and commented on by Dr McIntosh… confirm that this was a minor accident."
Although the plaintiff politely put to the medical assessor that the assessment of the defendant's impairment "needs to proceed with caution", the substantial argument had been clearly made.
The defendant's second proposition was that the plaintiff could not rely on a Dranichnikov argument as the McIntosh Report was based on assumptions and not established facts.
In Dranichnikov, Gummow and Callinan JJ said at [24]: "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice."
Kirby J observed at [88]: "Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way."
In oral argument, there was some discussion that the approach taken by the courts in recent years to a Dranichnikov argument placed emphasis on addressing the argument rather than upon established facts. However, it is not necessary in the present case to grapple with this issue as there are, contrary to the defendant's second proposition, the following established facts upon which the plaintiff's argument relied: 1. (i) The damage to the van was minor. This is evident from the photographs in the McIntosh Report; [7] 2. (ii) The tare mass of the van; 3. (iii) The damage to the defendant's Mercedes Benz C280 sedan was minor. This is evident from the photographs in the McIntosh Report; [8] 4. (iv) The tare mass of a 2008 Mercedes Benz C280 sedan; 5. (v) The safety features of a 2008 Mercedes Benz C280 sedan which included seatbelt load limiters, pretensioners, and active head restraints in the front row; 6. (vi) Both vehicles were driven away from the accident scene; and 7. (vii) No claim was made in the PIC by the defendant for physical injuries.
I do not agree with the defendant's third proposition that the plaintiff's argument was not "substantial". As Basten JA observed in Milton at [9]: "… a 'substantial' argument means one which is clearly material or of undoubted relevance".
The plaintiff's argument was undoubted relevant to the matters which the medical assessor and the Delegate were required to decide.
Another argument advanced by Mr Romanuik that a subjective element was involved had no relevance to the medical assessor's determination who found that the motor vehicle accident was severe enough to expose the defendant to death or threatened death.
In my opinion, a substantial, clearly articulated argument relying on established facts was made by the plaintiff to the medical assessor and to the Delegate. I agree with the plaintiff's contention that the submissions to the Delegate and the medical assessor relied on the ground in Dranichnikov and was not a Peko-Wallsend consideration, which is a "failure of a decision-maker to take into account a relevant consideration" per Mason J in Peko-Wallsend at 39.
In Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 ("Mandoukos"), Stern JA (with whom Leeming and Kirk JJA agreed) at [101] recently stated that the relevant question required to be considered by this Court is not to turn on the basis of attempting to identify jurisdictional error in the medical assessor's decision but rather to determine as Basten JA set out in Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253 ("Meeuwissen"), that whether there is reasonable cause to suspect a significant error had been made by the medical assessor so that in fairness the review application should have been allowed to proceed: "The question for the primary judge was whether, under the [MAI] Act, it was open to the Delegate not to be "satisfied that there [was] reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application", as provided in s 7.26(5) of the Act. That was not a question which turned on whether or not there was jurisdictional error in the decision of the Medical Assessor. As Basten JA held in Meeuwissen at [23] (Beazley JA and Sackville AJA agreeing) as regards equivalent provisions in the 1999 Act: "The power under s 63 [of the 1999 Act] is that of a gatekeeper, not a decisionmaker. Where there is reasonable cause to suspect that a significant error has been made, fairness suggests that the review should be allowed to proceed. In other words, the injured party is entitled to a decision reached in accordance with a proper understanding of statutory scheme and the facts: where an important fact has been ignored, the assessment has not been properly undertaken and the statutory right subverted."
The obligation imposed on the Delegate by s 7.26(5) of the MAI Act was to consider whether there was "reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application." The particulars were the matters set out in the plaintiff's referral submissions. The Delegate's task included consideration of whether the medical assessor had failed to respond to the plaintiff's substantial clearly articulated argument.
Section 7.23(7) of the MAI Act imposed a duty on the medical assessor to set out in the MAC the reasons for any findings made by him "as to any matter certified in the certificate".
The extent of reasons required to be given in respect of a decision depends upon the statutory context and factual circumstances in which the decision is made: Wingfoot Australia Partners Pty Ltd v Kocack (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot") at [45]. However, as the Delegate noted in her reasons, a medical assessor is not obliged to provide elaborate reasons. The Delegate referred to Alawia where R A Hulme J said at [61] that how the matter is taken into account is a matter for the decision-maker. Further reference was made to Farr where Adamson J (as her Honour then was) said at [46] that there is no obligation to analyse every piece of information. The medical assessor's duty is to come to his own conclusion. I would add to those authorities cited by the Delegate, Basten JA's observation in Allianz Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [22] that Dranichnikov did not imply an obligation to consider every piece of evidence.
None of these cases suggest that when a substantial and clearly articulated argument is advanced, the medical assessor is not bound to consider the argument. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284, Basten JA considered the nature and extent of reasons required to satisfy the statutory duty in s 61(9) of the Motor Accidents Compensation Act 1999 (NSW) which was in same terms as s 7.23(7) of the MAI Act. His Honour said at [121]-[122]: "Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel. On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment: see Soulemezis at 273-274 (Mahoney JA) and 281-282 (McHugh JA). At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required."
In Wingfoot, the High Court said at [55]: "The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion."
In the present case, there was more than one conclusion open to the medical assessor. He was required to consider the plaintiff's argument that the motor vehicle accident was minor and the diagnosis of PTSD was not consistent with Criterion A in DSM-5 as the defendant had not been exposed to actual or threatened death or serious injury by directly experiencing the traumatic event of a severe motor vehicle accident. This was a fundamental consideration before a diagnosis of PTSD could be made.
The medical assessor was required to set out the actual path of reasoning by which he arrived at his conclusion that the defendant's diagnosis of PTSD "was caused by the subject MVA as it was a significant accident where [the defendant] was exposed to death" (see [30] above).
The medical assessor was obliged to give some explanation as to why he accepted from the defendant that he was impacted from the rear at a speed of 80 km/h, which resulted in his head being smashed into the window (see [29] above) in preference to the plaintiff's argument. The defendant's account did not sit happily with the minor damage to both vehicles.
The medical assessor's reasons for issuing the MAC neither provide his actual path of reasoning nor any explanation as to why he accepted what had been said by the defendant. It was not sufficient for the medical assessor to simply refer to the McIntosh Report as being included in the list of documents central to his submission. The inadequacy of the medical assessor's reasons demonstrate that the medical assessor failed to give a proper and genuine consideration to the plaintiff's argument.
Although it is true that the medical assessor was not required to provide "elaborate reasons", the statements by the medical assessor that he had considered the documentation and listed the McIntosh Report as central to his consideration should not have satisfied the Delegate that the medical assessor had given a proper and genuine consideration to the plaintiff's argument. The Delegate's path of reasoning to the conclusion reached at [39.16] above, which relied on the statements made by the medical assessor of the documents he had considered, was inadequate.
With due respect to the Delegate, the inadequacies in the medical assessor's reasons should have readily been apparent.
By engaging in an active intellectual process having regard to the submissions made in the referral application, the Delegate should have readily formed the opinion that there was reasonable cause to suspect that the medical assessor's determination that the defendant's PTSD fell within the DSM-5 (Criterion A) as the defendant had directly experienced a traumatic event involving actual or threatened death in a severe motor vehicle accident was incorrect. It was not open to the Delegate to reach the conclusion that she did: Mandoukos at [101]
For these reasons, I uphold ground 1.
For completeness, I should state in upholding ground 1, I did not agree with the plaintiff's "no evidence" submission. The history of the motor vehicle accident provided by the defendant to the medical assessor is evidence.
It follows from the plaintiff's success in ground 1 that grounds 2 and 3 are also upheld.
No submissions were made by the parties that there should be any other order other than the costs of these proceedings should follow the event. I would make that order.
I make the following orders: 1. The decision of the Delegate of the President of the Personal Injury Commission made on 8 February 2024 is quashed. 2. The matter is remitted to the President of the Personal Injury Commission for determination of the application made by the plaintiff under s 7.26(1) of the Motor Accidents Injury Act 2017 (NSW) according to law. 3. The first defendant is to pay the plaintiff's costs.

Endnotes

Exhibit A, p 270.
Exhibit A, p 268.
Exhibit A, p 272.
Exhibit A, p 281.
Tcpt, 12 November 2024, p 27(1)-(4).
Tcpt, 12 November 2024, p 31 (25)-(28).
Exhibit A, pages 184, 185.
Exhibit A, pages 187, 188. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2024

Further Relevant Legislative Provisions The Motor Accident Injuries Act 2017(NSW)

Motor Accidents Injury Act 2017(NSW)

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