Jarvis v Allianz Australia Insurance Limited - [2022] NSWCA 232 - NSWCA 2022 case summary — Zoe

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Jarvis v Allianz Australia Insurance Limited

[2022] NSWCA 232

Court of Appeal (NSW)|2022-07-20|Before: Bell CJ, Brereton JA, McCallum JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2022-07-20

Before

Bell CJ, Brereton JA, McCallum JA

Catchwords

(2012) 61 MVR 443 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496
[2003] HCA 26 Rodger v De Gelder [2015] NSWCA 211
(2015) 71 MVR Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Source

Original judgment source is linked above.

Catchwords

(2012) 61 MVR 443 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496[2003] HCA 26 Rodger v De Gelder [2015] NSWCA 211(2015) 71 MVR Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Judgment (12 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant was involved in a motor vehicle accident in which his stationary vehicle was struck from behind by a bus. His minor physical injuries resolved quickly, but he subsequently developed psychological symptoms, and brought a claim for compensation under the Motor Accidents Compensation Act 1999 (NSW). Liability was admitted by the first respondent insurer, but there was a dispute as to whether the appellant's whole person impairment exceeded the 10% threshold for economic loss. A medical assessor issued a certificate that the appellant had suffered a psychiatric injury giving rise to permanent impairment greater than 10%. The insurer sought a review, and the review panel issued a new medical certificate certifying that the accident did not cause any psychiatric disorder. The relevant component of the review panel's reasoning was that although the appellant suffered from PTSD, the accident was not the type of "event" that could constitute a medical cause of that condition according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). As such, the panel held that causation between the accident and the appellant's condition could not be established. The appellant sought judicial review of the panel's decision in the Supreme Court, and the primary judge dismissed the application, finding that the appellant had not made out any jurisdictional error or error of law on the face of the record. On appeal: Held, per Basten AJA [78] (Bell CJ agreeing; Brereton JA dissenting [1], [31]), dismissing the appeal, with costs: As to whether the review panel failed to respond to a substantial argument raised by the appellant about the temporal connection between the accident and his symptoms:

Per Basten AJA (Bell CJ agreeing): The review panel addressed the appellant's argument that the accident caused the symptoms because the symptoms developed after the accident. The panel, exercising its medical expertise in determining that the accident did not satisfy Criterion A for PTSD under DSM-5, implicitly, if not expressly, rejected the appellant's argument, which relied upon post hoc ergo propter hoc reasoning. It was open to the panel to make a different finding to the original assessor, and to determine that there was insufficient causal connection between the accident and the appellant's condition: [57]-[63].
Per Brereton JA, contra: The review panel's reasoning does not engage with the fact that the appellant was asymptomatic before the accident, and first experienced symptoms after it. The review panel did not refer to the temporal sequence or its significance, and did not address the argument that even if the PTSD is referable to earlier traumatic incidents, the onset of symptoms, which included some that appear referable to the accident, was triggered by the accident. As such, the panel either failed to engage with a substantial argument put to it on a crucial issue, or failed to apply itself to the real statutory question by overlooking a critical aspect of the evidence. On either basis, this was jurisdictional error, and the primary judge erred in not so concluding. [21]-[24]; [28]-[30]. As to whether the appellant had sufficient notice of and opportunity to respond to the issue of causation before the review panel:
Per Basten AJA (Bell CJ agreeing; Brereton JA not deciding): A review panel undertakes a fresh assessment of the claim. Ordinarily, a claimant would not need to be given notice of a dispositive issue which is in dispute. The causal connection between the accident and the appellant's symptoms was an issue that was apparent in the insurer's statement in support of its review application, and from the medical opinions provided to the assessor and review panel: [65]-[67]. As to compliance with the Act and Guidelines
Per Basten AJA (Bell CJ agreeing; Brereton JA not deciding): A review panel is not required to address matters which do not arise because it has formed an adverse view of the claim for reasons not requiring resolution of those matters. The review panel addressed the relevant issue of causation consistently with the Guidelines, in finding that the accident made a "less than negligible" contribution to the appellant's symptoms: [70]-[72].

[3]

Judgment

BELL CJ: I agree with the reasons of Basten AJA and with the orders his Honour proposes.
BRERETON JA: On 4 May 2011 the appellant Maxwell Jarvis was involved in a motor vehicle accident on the Grafton bridge when his stationary vehicle was struck from behind by a bus. He was hospitalised for minor physical injuries to the neck and shoulder, but they quickly resolved. Subsequently, however, he developed psychological symptoms. He brought a claim for compensation under the Motor Accidents Compensation Act 1999 (NSW) ("MACA"). Liability was admitted by the first respondent insurer Allianz ("the Insurer"), but there was a dispute as to whether Mr Jarvis' whole person impairment ("WPI") exceeded the 10% threshold for economic loss. [1]
Following reference of the dispute to the State Insurance Regulatory Authority ("SIRA") Medical Assessment Service, [2] an Assessor issued a certificate on 4 October 2019 that Mr Jarvis suffered an injury giving rise to a permanent impairment greater than 10%, namely "psychological/psychiatric - Adjustment disorder with anxiety; PTSD; Major Depressive Disorder". The Assessor's reasons referred to Mr Jarvis' substantial history of traumatic accidents: he had directly or indirectly experienced multiple previous motor accidents - up to thirty; he had observed one while an adolescent that involved multiple fatalities; and during his career as a racing car driver, at an elite level, had had at least five serious accidents, including one in which his car caught fire and another in which he was trapped for three hours. But the Assessor noted that he denied any psychological or psychiatric condition prior to the Grafton accident, and that there was no evidence to contradict his denial. He observed (emphasis added): "His intrusive thoughts and nightmares were not only about the Grafton Bridge accident but about accidents that occurred throughout his life. However, he stated that he had never experienced these thoughts or nightmares before the subject accident of May 2011."
Considering the diagnostic criteria for post-traumatic stress disorder ("PTSD") according to the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5"), the Assessor addressed Criterion A (which requires a traumatic event, and is addressed in further detail below) as follows: "Mr Jarvis was involved in a relatively minor motor accident, but one in which he feared that significant injury might have occurred. His previous multiple exposures to motor accidents may have led to vulnerability to overreacting in this circumstance. On balance, I consider that Criterion A has been met."
As to Criterion B (which requires presence of intrusion symptoms associated with the traumatic event(s), beginning after those events occurred), and Criterion C (which requires persistent avoidance of stimuli associated with the traumatic event(s), beginning after those events occurred), he said: "He has recurrent, involuntary, and intrusive distressing memories of the event. He suffers nightmares which thematically relate to the event. He has dissociative reactions and is easily triggered into a distressed state. - Criterion B. He tries to avoid traumatic and distressing memories, for example avoiding travelling over the Grafton Bridge. - Criterion C."
Elaborating his reasoning, the Assessor explained: "It is more difficult to understand why this accident should have triggered a severe response, but others didn't. It is noteworthy that his intrusive thoughts and nightmares are often similar to events that occurred prior to 2011. We see PTSD and other mental health difficulties arise in emergency service personnel who are exposed to repeated trauma over the course of their careers. Perhaps something similar is occurring here. However, I have concluded that the accident of 4 May 2019 could have caused the conditions that Mr Jarvis suffers from and that without that accident it is unlikely that he would have become unwell at that time."
The Insurer applied to a Proper Officer for a review of the Assessor's decision. [3] It challenged the diagnoses and the quantum of impairment certified by the Assessor, relying on inconsistencies in Mr Jarvis's accounts and the fact that his nightmares related to accidents other than the Grafton accident, and arguing that his history of impulsivity, distractibility and irritability was referable to his ADHD and not to the Grafton accident. Mr Jarvis' response included that the Assessor had found that he suffered nightmares which thematically related to the Grafton accident, and that the Insurer had not addressed the logical connection between the onset of his nightmares immediately following the Grafton accident and the occurrence of that accident.
The Proper Officer was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and referred the application to a review panel of three medical assessors. [4] The third respondent is the Medical Review Panel which conducted the review ("the Panel"). It found that Mr Jarvis had symptoms of PTSD, but that the Grafton accident was on any view only a minor one, which did not satisfy the Criterion A definition of an "event" such as to be capable of founding a diagnosis of PTSD, whereas earlier trauma in Mr Jarvis' life (in particular, the motor racing accident involving a fire) did satisfy that definition. Although the Panel accepted that Mr Jarvis had PTSD it concluded that it resulted from stressors which preceded the Grafton accident, and that the Grafton accident had made a "less than negligible contribution" to it: "Having regard for the extent to which Mr Jarvis has been exposed to traumatic events, considering the nature of the subject motor accident and taking into account the multiple personal losses, the Panel formed the conclusion that the subject motor accident represented a less than negligible contributing factor to the causation of his current psychiatric presentation and was not causally related to the development of PTSD which appears to have resulted from other significant stressors in his life which pre-dated the subject accident."
The Panel therefore revoked the Assessor's certificate and issued a new certificate that: "The following injuries caused by the motor accident gave rise to a whole person impairment which, in total, is NOT GREATER THAN 10%: ● Nil diagnosed psychiatric disorder related to the motor accident".
Mr Jarvis sought judicial review of the Panel's decision under Supreme Court Act 1970 (NSW), s 69. He argued, inter alia, that the Panel failed to engage with the evidence and submissions, and in particular his argument that the accident "triggered" his PTSD symptoms which were not previously manifest. McCallum JA (as her Honour then was, sitting as a judge of the Common Law Division) dismissed the proceedings. Her Honour held that while there was a sufficiently articulated argument presented on behalf of Mr Jarvis that the accident was causative of his psychiatric injury in that it "triggered" PTSD symptoms which were not previously manifest, [5] the Panel was not required to explain why it took a different approach from the Assessor, [6] was not required to explain why it did not reach an opinion it did not form, [7] was not obliged to refer to every piece of evidence or every passage advanced, [8] and was required to do no more than respond to Mr Jarvis' argument that "he had developed nightmares following this accident and therefore the logical connection was they were due to the accident", which it did in the passage extracted above. [9]
Mr Jarvis appeals to this Court. Although the amended notice of appeal contains seven enumerated grounds, only three were elaborated in written submissions, and of them the only one which need be addressed is that her Honour erred in failing to hold that the Panel had failed to engage with a substantial argument that had been advanced founded on the evidence. [10]

[4]

Failure to respond to a substantial argument

A failure to respond to a substantial argument can amount to jurisdictional error either because it involves a denial of procedural fairness or because it amounts to a constructive failure to exercise jurisdiction. [11]
A central - and ultimately dispositive - issue for the Panel was whether the Grafton accident "caused" Mr Jarvis' psychiatric impairment in the relevant sense.
As to causation, the applicable Guidelines provided the following guidance for the Panel: [12] Causation of Injury 1.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the [MAC 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 claims assessor) in considering such issues. 1.6 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 judgment. 1.7 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 applicable in circumstances where there are multiple contributing causes.
Thus it suffices if the accident materially contributed to worsening the impairment.
Before us, Senior Counsel for the Insurer accepted that it was plain that causation of psychiatric symptoms was squarely in issue. As the primary judge accepted, it was Mr Jarvis' case before the Panel that the circumstance that he was asymptomatic before the Grafton accident but experienced PTSD symptoms after it - albeit that those symptoms related not only to the Grafton accident but also the earlier traumas - was indicative that his impairment was caused, in the relevant sense, by the Grafton accident. It was obvious that Mr Jarvis had been exposed over his lifetime to numerous traumatic incidents, at least some of which were capable of being a Criterion A event. However, although there had been many such potential events, in fact he was asymptomatic before the accident but symptomatic after the accident. His case was that the manifestations of symptoms post‑accident, when they were absent pre‑accident, pointed to the accident being a relevant event or trigger for his PTSD, and thus at least contributing to his impairment. The chronology was eloquent proof of that proposition.
In recording Mr Jarvis' "Pre-Accident Functioning", the Panel noted, and did not reject, his denial of psychiatric symptoms before the Grafton accident: "He did not describe impairment predating the motor accident."
Then, in describing his "Current Symptoms", the Panel recorded, and did not reject, his account of the onset of symptoms after the Grafton accident (emphasis added): "Current Symptoms With respect to his psychiatric symptomatology, Mr Jarvis stated that at the time he considered the motor vehicle accident to have been innocuous as no one was seriously hurt. He wanted to get back to work and he sought to ensure that his assistant was okay, making contact the day after the accident. He described the onset of nightmares and panic symptoms. He spoke of physical symptoms attributed to panic including a propensity to sweat and faecal urgency such that he has soiled himself. He explained that he has a pack of Wet Ones and spare underwear with him at all times. When he suffers such an attack, he seeks to run away from whichever situation he finds himself in at the time. By way of example, if he finds himself in a shopping centre, he may panic and if he finds himself approached by acquaintances he may panic. Alcohol calms him and helps him to sleep. … Mr Jarvis stated that his sleep is adversely affected by the prospect of nightmares and worry that he will not be able to sleep. He stated that he dreams of accidents. The dreams are vivid. He smells brake dust. He explained that he can "see it, taste it, feel it". He wakes disorientated and anxious. He gets up, showers, strips the bed and sits on a chair. He thinks about past accidents of which he is reminded by things he sees on television and incidents on the road. He drives as little as possible. He shops only fortnightly. He avoids the old bridge on which the subject accident occurred."
The Panel's dispositive reasoning is contained in the following section: "C. Panel Deliberations The Panel considered the symptomatology presented by Mr Jarvis. The Panel noted the discrepant accounts of the nature of the subject motor accident and concluded that there was sufficient weight of evidence to conclude that it was a minor motor vehicle accident. Even accepting the description of the subject motor accident as presented by Mr Jarvis, the Panel concluded that it was not of a nature consistent with the type of events that would fulfil Criterion A of the diagnosis of Posttraumatic Stress Disorder described in DSM-5 as follows: "Criterion A include, but are not limited to, exposure to war as a combatant or civilian, threatened or actually physical assault (eg physical attack, robbery, mugging, childhood physical abuse), threatened or actual sexual violence (eg, forced sexual penetration, alcohol/drug-facilitated sexual penetration, abusive sexual contact, noncontact sexual abuse, sexual trafficking), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war, natural or human made disasters, and severe motor vehicle accidents." The Panel also noted that Mr Jarvis had established and sustained an intimate relationship of three years' duration which he described in positive terms. The Panel noted that he purchased a business and managed the business for six years albeit unsuccessfully. He remains socially active, participating in activities with his former partner for the duration of their relationship and that he has maintained regular contact with a close friend on an ongoing basis. The Panel considered Mr Jarvis' subjective account of decline in cognitive functioning but noted that his impression in this regard was not objectively supported by the manner in which he participated at interview. Having regard for the symptomatology presented by Mr Jarvis, the Panel identified features of Posttraumatic Stress Disorder. Mr Jarvis described intrusive recollections of past motor accidents, nightmares, anxiety and avoidance. The Panel considered the multiple motor accidents that had occurred well prior to the subject motor accident. The Panel considered Mr Jarvis' description of the accident in which he was trapped in a burning car and subjected to threatened drowning when the fire was 'extinguished and concluded that this accident reflected an event consistent with Criterion A of the diagnostic criteria for Posttraumatic Stress Disorder. In considering causation, the Panel took into account the multiple motor accidents in which Mr Jarvis has been involved. The Panel identified reference to an accident when he was 18 years old, accidents in 1979 and 1988, reference to an accident in the 1980s and about 30 speedway accidents. The Panel identified several significant stressors since the accident include a motor accident in 2012 outside his home, an accident in Melbourne in 2012, his son's involvement in a motor accident in 2014 and that his mother was run over by his father. The Panel took into consideration significant losses incurred by Mr Jarvis including loss of employment, the failure of a 20-year marriage, the failure of a business and the loss of his recent significant relationship. The Panel considered the treatment that had been provided to Mr Jarvis and found that it does not accord with evidence-based treatment for the management of Posttraumatic Stress Disorder. The Panel noted that the prescription of stimulant medication such as Ritalin may be a factor in the causation or exacerbation anxiety symptoms. The Panel could not identify symptoms consistent with a diagnosis of Attention-Deficit Hyperactivity Disorder which would represent a pre-existing non-accident-related diagnosis if it were confirmed to be present. Having regard for the extent to which Mr Jarvis has been exposed to traumatic events, considering the nature of the subject motor accident and taking into account the multiple personal losses, the Panel formed the conclusion that the subject motor accident represented a less than negligible contributing factor to the causation of his current psychiatric presentation and was not causally related to the development of PTSD which appears to have resulted from other significant stressors in his life which pre-dated the subject accident"
In essence, that reasoning contains the following relevant elements: 1. the Grafton accident was not sufficiently severe to satisfy Criterion A; 2. Mr Jarvis had symptoms of PTSD; 3. Mr Jarvis had been involved in other much more traumatic incidents before the Grafton accident; and 4. his PTSD appears to have resulted from the other significant stressors in his life which pre-dated the subject accident.
There was, however, a major rational obstacle to that reasoning, namely that he was asymptomatic before the Grafton accident, and first experienced symptoms after it, and those symptoms were referable in part to the Grafton accident. This is not mere post hoc ergo propter hoc reasoning. It may be accepted that it does not necessarily follow that because event B occurs after event A, that A caused B. However, depending on the context, a temporal sequence of events may be illustrative of the presence or absence of a causal connection. On the one hand, it can certainly be said that if event B occurs before event A, A did not cause B. On the other, for example, if a person was uninjured before a motor accident but after it emerged from a crushed car with shattered limbs, it would not be difficult to conclude that the accident caused the fractures. In this case, the relevant sequence was that while there were traumatic events before the Grafton accident, there were no PTSD symptoms until after the Grafton accident, and those symptoms included some which were referable to the Grafton accident (such as dreams that related thematically to the Grafton accident, and avoidance of the Grafton bridge where it occurred), as well as symptoms referable to earlier incidents.
While concluding that the Grafton accident was not sufficiently severe to qualify as an "event" for the purposes of Criterion A, nowhere does the Panel refer to the temporal sequence and its significance. Nor does it address the argument that even if the PTSD is referable to earlier traumatic incidents, the onset of symptoms, which included some that appear referable to the Grafton accident, was triggered by the Grafton accident - which, as will be discussed, would constitute a "worsening" of the impairment as contemplated in the Guidelines. [13]
I entirely accept that a Review Panel is not required to give elaborate reasons, nor to address every aspect of the evidence, and that its reasons are not to be scrutinised with a close eye for error. However, where a substantial argument on a critical issue is addressed to it, some engagement with that issue is required. Here, although, as has been mentioned, it noted (and did not reject) Mr Jarvis' account that he was symptom-free before the accident and had symptoms after it, there is nothing to indicate that the Panel engaged at all with the implications of that chronology.
I do not accept that engagement with that argument is implicit, as the respondent submitted, in the first paragraph of its "Deliberations", set out above. [14] That paragraph is not at all concerned with the temporal sequence, but only with the identification of a sufficiently serious "event" to satisfy Criterion A. Indeed, the passage quoted by the Panel from DSM-5 is not the Criterion itself, but an extract from the commentary on the diagnostic criteria. The commentary also explains that (emphasis added): "The essential feature of posttraumatic stress disorder (PTSD) is the development of characteristic symptoms following exposure to one or more traumatic events."
The extract cited by the Panel contains a non-exclusive list of examples of Criterion A events. The list provided is an inclusive one, and Criterion A events are expressly stated to be "not limited to" those examples. What is definitive is the Criterion itself. There are 8 criteria, denoted A through H; Criterion A pertains to the traumatic event, and the others to the symptoms. Criterion A is as follows: "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). 2. Witnessing, in person, the event(s) as it occurred to others. 3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental. 4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse). Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related."
It will be noted that exposure to threatened serious injury suffices. Thus it would suffice if there were "Exposure to … threatened … serious injury … [by] directly experiencing the traumatic event(s)". In this respect, as has been noted, the Assessor recorded that while the Grafton accident was a relatively minor one, it was "one in which he feared that significant injury might have occurred." The "risk factors" described in DSM-5 include "exposure to prior trauma". Again, the Assessor had observed that "His previous multiple exposures to motor accidents may have led to vulnerability". The Panel's conclusion that the Grafton accident was not severe enough to qualify as a Criterion A event was made without adverting to the temporal sequence and its logical implications.
Nor is such engagement implicit in the last sentence of the "Deliberations" section, also set out above, [15] which not only does not address, but serves to highlight the significance of, the chronology and its inconsistency with the Panel's conclusion. The Panel accepted that Mr Jarvis had PTSD, but attributed it to pre-accident stressors. It simply does not address the point that until the accident he was asymptomatic. Yet PTSD is, after all, a name given to a constellation of manifest symptoms. Even if his PTSD was (as the Panel found) attributable to pre-accident stressors, the fact that his symptoms became manifest after the accident was necessarily relevant to whether the Grafton accident "caused or contributed to worsening of" [16] his impairment.
In my view, the Panel has simply failed to appreciate that its conclusion sits uncomfortably with the temporal sequence. It has not engaged with and answered the logic of the chronology, but completely overlooked or ignored it. It has simply failed to engage with a theory that is inconsistent with its conclusion.
The Panel's reasons thus disclose that it failed to engage with Mr Jarvis' argument that the chronology pointed to the accident as causing or materially contributing to his PTSD. Accordingly, in my opinion, the Panel failed to engage with a substantial argument put to it on a crucial issue. In those circumstances, it is, as Gleeson JA said in De Gelder: [17] "not to the point that the function of the Panel is to form and give its own opinion on the medical dispute referred to it by applying its own medical experience and its own medical expertise: Wingfoot Australia Pty Ltd v Kocak at [47]. Nor is it to the point that s 61(9), which is made applicable by s 63(6), only obliged the Panel to set out in its certificate the reasons for any finding of any matter certified in the certificate."
As was the case in De Gelder, it may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under MACA, s 58(1)(d), because it overlooked a critical aspect of the evidence relevant to its determination. [18] On either basis, this was jurisdictional error, and the primary judged erred in failing to so conclude.
In my view, the following orders should be made: 1. allow the appeal and set aside the orders of McCallum JA made on 24 February 2022; 2. in lieu thereof, quash the certificate of the third defendants dated 18 November 2020 and remit the review of the medical assessment of Assessor Andrews which is the subject of the certificate of 4 October 2019 to the second defendant to be referred to a review panel, differently constituted, to be dealt with according to law; 3. order that the first respondent pay the appellant's costs of the appeal and of the proceedings in the Common Law Division.
BASTEN AJA: The appellant, Maxwell Jarvis, sought to set aside a judgment of McCallum J in the Common Law Division delivered on 24 February 2022. That judgment dismissed an application for judicial review brought by the appellant with respect to a decision of a review panel under Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). [19]

[5]

Background

Mr Jarvis claimed damages for personal injury as a result of a low-speed minor rear end collision with the car he was driving which occurred on 4 May 2011. (It is convenient to refer to Mr Jarvis as the claimant.) His entitlement to damages for non-economic loss depended upon him establishing that he had suffered a degree of permanent impairment greater than 10% caused by the accident. [20] The assessment of his permanent impairment was required to be carried out by a medical assessor pursuant to the provisions of Pt 3.4 of the Act and relevant provisions of the Motor Accident Permanent Impairment Guidelines promulgated under the Act. He had no relevant physical injuries; his claim turned on whether the accident had caused a psychiatric disorder.
The claimant, who had been involved in motor racing, had experienced at least five serious previous accidents, in one of which his car caught fire and in another of which he was trapped in his car for three hours.
An initial medical assessment resulted in the issue of a certificate on 4 October 2019 in the following terms: "The following injuries caused by the motor accident give rise to a permanent impairment which is greater than 10%: ● Psychological/psychiatric - adjustment disorder with anxiety; PTSD; major depressive disorder".
On 22 November 2019, the respondent insurer filed an application for review of the medical assessment under s 63 of the Act. The application was made to the proper officer of the State Insurance Regulatory Authority. The insurer's submissions accompanying the application challenged the diagnoses and the quantum of impairment. The insurer relied upon inconsistencies in the claimant's accounts, the fact that his nightmares related to accidents other than the one the subject of the claim, and that the history of impulsivity, distractibility, irritability and difficulty remaining on task related to "his non-accident-related ADHD".
In response, the claimant submitted that "the assessor found that the claimant suffers nightmares which thematically relate to the accident" and that the insurer had omitted "the logical connection between the timing of the claimant's nightmares immediately following the accident [and the accident]".
On 20 January 2020 the proper officer, being 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, referred the application to a panel of three medical assessors (the review panel), as required by s 63(3).
The review panel, comprising three psychiatrists, having undertaken a review of the evidence, including numerous conflicting medical reports, decided to conduct a further clinical examination of the claimant. That took place on 14 October 2020. On 18 November 2020 the review panel revoked the original assessment certificate and issued a new certificate determining that the whole person impairment was not greater than 10%, and that there was "nil diagnosed psychiatric disorder related to the motor accident".
A key passage in the reasons of the review panel read as follows: "In considering causation, the Panel took into account the multiple motor accidents in which Mr Jarvis has been involved. The Panel identified reference to an accident when he was 18 years old, accidents in 1979 and 1988, reference to an accident in the 1980s and about 30 speedway accidents. The Panel identified several significant stressors since the accident includ[ing] a motor accident in 2012 outside his home, an accident in Melbourne in 2012, his son's involvement in a motor accident in 2014 and that his mother was run over by his father. The Panel took into consideration significant losses incurred by Mr Jarvis including loss of employment, the failure of a 20-year marriage, the failure of a business and the loss of his recent significant relationship. The Panel considered the treatment that had been provided to Mr Jarvis and found that it does not accord with evidence-based treatment for the management of Post-Traumatic Stress Disorder. The Panel noted that the prescription of stimulant medication such as Ritalin may be a factor in the causation or exacerbation [of] anxiety symptoms. The Panel could not identify symptoms consistent with a diagnosis of Attention-Deficit Hyperactivity Disorder which would represent a pre-existing non-accident-related diagnosis if it were confirmed to be present. Having regard for the extent to which Mr Jarvis has been exposed to traumatic events, considering the nature of the subject motor accident and taking into account the multiple personal losses, the Panel formed the conclusion that the subject motor accident represented a less than negligible contributing factor to the causation of his current psychiatric presentation and was not causally related to the development of PTSD which appears to have resulted from other significant stressors in his life which pre-dated the subject accident."
There is no appeal from the decision of the review panel, but judicial review is available in the Supreme Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Such a review is limited to jurisdictional error and error of law on the face of the record. The record, it may be accepted, includes the reasons given by the review panel for its ultimate determination, in accordance with s 69(4). The Supreme Court has no power to intervene on any other basis; its views of the merits of the claim are irrelevant.
On 18 February 2021 the claimant commenced proceedings by summons in the Common Law Division seeking judicial review of the certificate issued by the review panel. The primary judge identified three grounds in the summons, as pursued in written submissions and at the hearing, each of which was said to reveal jurisdictional error, which she stated as follows: [21] "(a) that 'the Review Panel failed to engage with the plaintiff's evidence [or] submissions before it'…; (b) that 'the Review Panel denied the plaintiff procedural fairness by deciding the matter on a basis upon which the plaintiff was not given notice'…; (c) that 'the Review Panel constructively failed to exercise a statutory function in that it failed to make a new assessment of all the matters with which the assessment was concerned, and/or did not make its assessment in accordance with the Permanent Impairment Guidelines'…."
The primary judge considered each of these matters and rejected them. The summons was dismissed with costs.

[6]

Issues on appeal

The notice of appeal set out seven grounds, but grounds 1, 2 and 7 were generic and identified no specific error on the part of the primary judge. Ground 6 added nothing to ground 5. The other three grounds may be summarised as identifying error on the part of the primary judge in failing to identify relevant error on the part of the review panel in: 1. failing "to respond to a substantial argument" mounted by the claimant (ground 3); 2. determining the dispute "upon a basis that was not notified as being in dispute" (ground 4); and 3. failing to comply with the Act and the Motor Accident Permanent Impairment Guidelines "when determining the issue of causation of injury" (ground 5).
In submissions, the claimant identified the "substantial argument" in ground 3 as the "temporal connection between the accident and the development of symptoms, and the lack of any pre-accident psychiatric symptoms". [22]
There was no attempt in this Court to identify with precision which grounds constituted jurisdictional error and which error of law on the face of the record. Ground 3 may well involve both: a failure to address a substantial argument based on facts as found or uncontested facts has been variously described as a failure to exercise a function conferred on the tribunal or as a failure to accord procedural fairness. [23] Either way it may be characterised as a jurisdictional error because it is a failure to exercise the function conferred by statute, namely to decide the medical dispute presented by the parties. However, the evidential basis for such a claim will usually depend upon a perusal of the "record", including the reasons of the review panel, as it did in this case.
Ground 4 appears to assert a breach of procedural fairness and therefore jurisdictional error. Ground 5 is best characterised as an error of law on the face of the record.
It follows that it is necessary to identify the statutory function being exercised by the review panel, and the nature and scope of its reasons in order to establish the scope of any legal errors which may be revealed in the reasons.

[7]

Statutory function of Review Panel

The decision of the review panel was that of a medical tribunal constituted by three psychiatrists. As senior counsel for the insurer correctly noted, the first step in addressing an alleged jurisdictional error is to identify the scope of the statutory function conferred on the tribunal. The statutory function, as explained in the review panel's certificate, was to carry out a review under s 63 of the Act to determine whether the degree of permanent impairment of the claimant, as a result of the injury caused by the motor accident, was greater than 10%. Whilst the review panel's jurisdiction was conferred by s 63 of the Act, the nature of the medical dispute was that identified in s 58(1)(d). The function of granting a certificate "as to the matters referred for assessment" is found in s 61(1).
Importantly for present purposes, the function of the review panel was, at the relevant time, identified in the following terms: 63 Review of medical assessment by review panel (1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review. (2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect. … (3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application. (3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned. (4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned. … (6) Section 61 applies to any new certificate or new combined certificate issued under this section.
The function of the review panel was therefore twofold, namely to determine for itself (i) whether there was an "injury caused by the motor accident" and, if so, (ii) the degree of permanent impairment resulting from the injury.
Given that statutory scheme, and as has been explained in previous cases, the function conferred on the review panel is that aptly identified by the High Court in relation to analogous Victorian legislation in Wingfoot Australia Partners Pty Ltd v Kocak [24] in the following terms: "47 The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
There can be little doubt that the review panel purported to undertake the precise statutory function conferred on it. So much was conceded by the references in the claimant's submissions to a "constructive failure" to undertake its legal function. That failure depends upon an absence (so it was said) from the panel's reasons of a particular explanation. However, to assess the validity of that approach, it is also necessary to identify the nature and scope of the obligation to give reasons.
The obligation to give reasons is to be found in s 61(9) of the Act which provides that 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". [25] Under the analogous Victorian legislation that obligation was described in Wingfoot in the following terms, drawing upon the earlier statement (set out above) of the function of the tribunal: "55 … 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."
There was no challenge to the adequacy of the reasons in the present case: rather, accepting that the reasons indeed set out the actual path of reasoning of the review panel, the claimant submitted that a substantial argument upon which he had relied was absent.

[8]

Ground 3: failing to address a substantial argument

As noted above, the claimant identified the matter which was disregarded as "the temporal connection between the subject motor accident and the development of psychiatric symptoms, coupled with the lack of pre-accident symptoms, which supported the 'triggering' conclusion of both [the claimant's treating psychiatrist and the original medical assessor]". [26]
The assumption underlying this submission is that medical science recognises as a substantial argument post hoc ergo propter hoc reasoning. This is often referred to as a logical fallacy; just because event B comes after event A, it does not follow that A caused B. There are three answers to the submission that the review panel did not have regard to such reasoning.
The first response is that the review panel did in fact have regard to the underlying factual assumptions, namely that there were no pre-accident symptoms but there were post-accident symptoms. However, it treated as significant the fact that the post-accident symptoms, including dreams and flashbacks, related to incidents other than the minor accident in 2011.
The second response is that the assessors reached their conclusion by reference to medical principles which were identified. The reasoning commenced by referring to criterion A of the diagnosis of post-traumatic stress disorder described in DSM-5. It was not in dispute that DSM-5 provided a relevant and appropriate basis for diagnosis of PTSD. If it matters, it may be noted that, in diagnosing PTSD, the original medical assessor considered each of criteria A-H of DSM-5 in order to be satisfied that it was an appropriate diagnosis. In fact, the point of departure between the medical assessor and the review panel was the conclusion reached by the panel that the claimant did not satisfy criterion A. Criterion A identified a non-exclusive range of potential events capable of triggering PTSD which included "severe motor vehicle accidents", but nothing remotely like the minor bump which the claimant relied upon.
On the basis that criterion A was not satisfied (a matter entirely for medical assessment) there would be no basis for this Court to interfere in the finding that the 2011 motor accident did not cause PTSD. That was a matter for medical judgment: no legal error was exposed in reaching that conclusion.
However, it is far from clear that the panel limited its consideration to that issue. It noted that the symptomatology presented by the claimant included features of PTSD. It identified those features as "intrusive recollections of past motor accidents, nightmares, anxiety and avoidance". It referred to a particular incident which involved an event consistent with criterion A of the diagnostic criteria for PTSD. It then turned to consider the multiple motor accidents which pre-dated the 2011 accident and "several significant stressors since the accident". On one view, it relied upon all those considerations, including the existence of the current features of PTSD (symptomatology) before reaching its conclusion that the 2011 accident did not cause or materially contribute to the current symptoms of PTSD. In short, the factual premise that the panel did not address the temporal connection between the symptoms and the accident is contradicted by the reasons given by the panel. In applying its medical expertise, the panel implicitly, if not expressly, rejected the post hoc ergo propter hoc reasoning relied on by the claimant.
The third response is that a finding as to a lack of a sufficient causal connection is essentially a factual finding which is not open to review as such. There is no suggestion that the reasoning of the review panel was inadequate. In so far as it rejected a finding of PTSD caused by the accident, it departed from the somewhat tentative contrary conclusion reached by the original assessor. He had stated in his reasons: "Mr Jarvis was involved in a relatively minor motor accident, but one in which he feared that significant injury might have occurred. His previous multiple exposures to motor accidents may have led to vulnerability to overreacting in this circumstance. On balance, I consider that criterion A has been met."
It was undoubtedly open to the review panel to make a different finding.
In short, ground 3 is little more than an invitation to review the medical opinion of the review panel on the basis that it failed to apply a logical fallacy which was not consistent with the relevant diagnostic criteria. The ground must be rejected.

[9]

Ground 4: procedural fairness

Ground 4 asserted that the panel decided his claim on a basis of which he had no notice. That is an assertion of denial of procedural fairness. However, the content of the obligation to accord procedural fairness is a function of the statutory context in which the issue arises. Section 63(3A) states that a medical assessment "is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned." The effect of that provision is that a review panel undertakes a fresh assessment. It generally precludes the proposition that a claimant must be given "notice" of a dispositive issue which is in dispute, although there may be occasions on which some issue has been conceded by the insurer and not addressed by the claimant for that reason. No such argument was available in the present case.
As the primary judge noted, this appeared to be a complaint that "it was not at all apparent from [the insurer's submissions] that the application for review related to causation of PTSD". [27] That inconsistency in approach was partly recognised in this Court, the claimant's submissions stating that the lack of notice point was "taken in the alternative and somewhat prophylactically". [28] What precisely was meant by that qualification was and remained unclear: little reference was made to this ground in oral submissions. But if it were presented as an alternative formulation of the earlier ground, it was nevertheless unavailable as invoking procedural unfairness.
Further, the factual premise was missing. That a causal connection between the 2011 accident and the claimant's current psychiatric conditions was in issue, was clear from the passages in the insurer's statement in support of its application for review set out above. The causal link was an important and obvious issue addressed in several of the competing medical opinions provided to the medical assessor and to the review panel.
Ground 4 was without substance.

[10]

Ground 5: failure to comply with Guidelines

Ground 5 asserted that the review panel failed to make an assessment of all the matters with which the medical assessment was concerned, pursuant to s 63(3A).
As the primary judge correctly noted, that section does not require a review panel to address matters which do not arise because the panel has formed an adverse view of the claim for reasons not requiring resolution of those matters.
Accepting that lack of causation was the basis of the review panel's decision, the claimant asserted that there had been a failure to follow cll 1.6 and 1.7 of the Motor Accident Permanent Impairment Guidelines. The definition of causation contained in cl 1.6 is curiously obscure, referring to "a physical, chemical or biologic[al] factor [which] contributed to the occurrence of a medical condition". The issue for a review panel will be whether the motor accident caused or materially contributed to the injury, which is the subject of cl 1.7. Clause 1.7 of the Guidelines states that "[t]he motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible".
The claimant failed to establish that the review panel failed to apply this guideline, the panel having expressly stated its conclusion that the causal contribution, if any, was "less than negligible". It clearly had the language of cl 1.7 in mind in referring to a non-negligible contribution in determining causation.
The claimant sought to draw some support for the alleged error on the part of the primary judge by reliance on the way in which she dealt with the Guidelines. The reasoning appears in two parts, the first of which read as follows: "49 Mr Jarvis' particular complaint under this ground is that the Panel failed to refer to or apply the two-part medical and legal test specified in clauses 1.6 and 1.7 of the Guidelines and by not proceeding to make an assessment of the degree of impairment. In circumstances where the Panel's assessment was that the injury was not caused by the accident, that issue did not arise. So much is acknowledged in clause 1.5, which states: '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.'"
That passage was clear and sufficient to dispose of ground 5. However, the judge continued: "50 Part 1.6 of the Guidelines specifies a two-fold test of causation, requiring the Panel 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.' 51 In circumstances where the claimant falls at the first hurdle, there is no occasion to proceed to the second step and indeed it makes no sense to do so. If the alleged factor could not have caused or contributed to the worsening of the impairment, it must follow that it did not cause or contribute to the worsening of the impairment."
The judge's reasoning in this regard is elliptical. It may be that she understood the review panel to have determined that because criterion A of the diagnostic criteria for PTSD had not been satisfied, the accident did not qualify as capable of causing or contributing to that medical condition. As suggested above, that is one reading, but not the only available reading, of the panel's reasons. It may have been put forward by the primary judge as an alternative to the previous conclusion that the panel found that "the injury was not caused by the accident", as noted in [49] of her judgment (emphasis added). On neither approach was the judge's reasoning erroneous.
The usefulness, if not the accuracy, of the definition of causation relied on in cl 1.6 might be questioned. It seems likely that in most cases the two-stage approach would be unnecessary and sometimes inappropriate. Nothing turns on the operation of cl 1.6 for present purposes. Clause 1.7 commences with the qualification that "[t]here is no simple common test of causation that is applicable to all cases". That statement is sufficient to remove any obligation to follow a particular approach which may be inferred from the language of cl 1.6.
There was no substance to ground 5.

[12]

Endnotes

MACA, s 131.
MACA, Pt 3.4.
Under MACA, s 63(1). That section as amended now provides that such a review may be sought from the President of the Personal Injury Commission of New South Wales.
Under MACA, s 63(3).
Primary judgment at [27]-[28].
Primary judgment at [35], citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] ("Wingfoot").
Primary judgment at [35], citing Wingfoot at [56].
Primary judgment at [36], citing Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [22] (Basten JA).
Primary judgment at [38]-[39]; above at [8].
The second was advanced, rather diffidently, as an alternative to the first, with which it was inconsistent; the third was abandoned during the hearing of the appeal.
Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [93]-[95] (Gleeson JA; Macfarlan and Leeming JJA agreeing), citing Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496; [2003] HCA 26 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30.
MACA, s 65(1) provides that the procedure for medical assessments under Pt 4 is subject to the guidelines made under s 44(1). The Motor Accident Permanent Impairment Guidelines to be applied by the Review Panel were those made pursuant to MACA s 44(1)(c) and issued by SIRA which commenced on 1 June 2018 ("the Guidelines").
Guidelines, cl 1.6.
Above at [19].
Above at [19].
NSW State Insurance Regulatory Authority (SIRA), Motor Accident Permanent Impairment Guidelines (1 June 2018), cl 1.6
De Gelder at [108].
Cf De Gelder at [109].
Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161 (Jarvis).
Motor Accidents Compensation Act, s 131.
Jarvis at [20].
Appellant's written submissions, 9 May 2022, par 26.
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [25] (Gummow and Callinan JJ), applied by this Court in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [19], a case involving a challenge to a decision under the Act.
(2013) 252 CLR 480; [2013] HCA 43 (footnote omitted).
Section 61 applies to a new certificate issued by a review panel under s 63, pursuant to s 63(6).
Appellant's written submissions, par 17.
Jarvis at [43].
Appellant's written submissions, par 39. 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: 15 November 2022

Jarvis v Allianz Australia Insurance Limited

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