Jarvis v Allianz Australia Insurance Ltd

Decision of the Medical Assessor

1. Although the present application is concerned with the decision of the Review Panel, it is convenient for context to make brief reference to the decision of the Assessor.
2. The initial assessment was conducted by Dr Douglas Andrews. He found that Mr Jarvis suffered from a psychological/psychiatric injury, namely, "adjustment disorder with anxiety; PTSD; major depressive disorder". As already noted, he certified that those injuries were caused by the Grafton bridge accident. By application of the PIRS (Psychiatric Impairment Rating Scale) under the Motor Accident Permanent Impairment Guidelines (1 June 2018 edition), Dr Andrews assessed Mr Jarvis as having Whole Person Impairment (WPI) of 15%.
3. In his reasons for decision, Dr Andrews acknowledged that the case was a challenging one in which Mr Jarvis's credibility had been called into question and in which there were "widely varying opinions about his conditions".
4. Dr Andrews evidently accepted that the accident was a relatively trivial one and that Mr Jarvis had directly or indirectly experienced "multiple previous motor accidents" (up to 30), adding: "He observed an incident while an adolescent that involved multiple fatalities. During his car racing career, racing at elite level, he had at least five serious accidents. In one of these his car caught fire and in another he was trapped in his car for three hours."
5. Dr Andrews recorded the insurer's submission that the Grafton bridge accident was "grossly minor and incapable of causing the psychological injuries alleged, particularly in light of the claimant's extensive pre-accident history of traumatic experiences arising from the motor accidents" (plainly referring to the earlier accidents).
6. Addressing the diagnostic criteria for PTSD under DSM-5, Dr Andrews considered that "[Mr Jarvis's] previous multiple exposures to motor accidents may have led to vulnerability to overreacting in this circumstance". On that basis, he considered that, on balance, Criterion A in DSM-5 had been met. Dr Andrews did not set out Criterion A in his decision but, according to the decision of the Review Panel, it is 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 physically 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."
7. On the topic of apportionment for any pre-existing impairment, Dr Andrews noted the absence of any pre-existing or subsequent impairment and said, "while [Mr Jarvis] had been subject to trauma in the past, there is no evidence that this caused any condition or illness. He was fully functional and had no impairment prior to May 2011".

Application to the Review Panel

1. The insurer filed an application for review of that assessment which was referred to the Review Panel for determination in accordance with s 63(3) of the Motor Accidents Compensation Act. Section 63(3A) provides in respect of such a review: 63 Review of medical assessment by review panel … (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.
2. The nature of that task (which is clear enough in any event from the language of the section) was reiterated by the Court of Appeal in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9] (Leeming JA, Beazley P and Basten JA agreeing at [1] and [2]): "Although styled a 'review', in truth the panel is determining afresh the medical assessment matters referred to it. That is confirmed by s 63(3A) which provides that the review is not limited to that aspect of the assessment alleged to be incorrect, and is to be 'by way of a new assessment' of all the matters."
3. As emphasised in the insurer's submissions in this Court, the matter to be assessed by the Review Panel in the present case in accordance with that provision was whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%. In other words, an assessment of causation was an essential aspect of the task.

Review Panel Decision

1. The Review Panel began with a concisely written but detailed summary of the previous medical reports and other information before the Panel. Noting apparent inconsistencies in various accounts given by Mr Jarvis and the minor nature of the accident in question, the Panel determined that Mr Jarvis should be examined by the Panel. The examination was conducted by two of the three members of the Panel. That was originally the subject of one of the grounds of appeal but that ground was not pressed at the hearing.
2. A detailed account of the examination was set out in the Panel's reasons. The pre-accident medical history included an account of the speedway race accident involving a burning car as follows: "When asked regarding the motor accident described in the documents in which he was trapped in a burning car, Mr Jarvis explained that he was wearing a triple layer suit and that the fire was quickly extinguished. He recalled that he was upside down in a semiconscious state and the frightening aspect of the accident related to him 'drowning' in his full face helmet as the fire was being extinguished. He stated that the memory of the incident comes back in his nightmares. Notwithstanding his account of the incident, he reported that he was not upset at the time and he raced again the next weekend."
3. The Panel expressed the view that the speedway race accident was an event that was consistent with Criterion A of the diagnosis of post-traumatic stress disorder described in DSM-5, whereas the Grafton bridge accident was a minor motor vehicle accident that would not fulfill that criterion.
4. The Panel concluded: "Having regard for the extent to which Mr Jarvis had 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."
5. The Panel accordingly decided that the Grafton accident was not a cause of Mr Jarvis' claimed psychiatric injuries. Having reached that conclusion, while the Panel evidently accepted that Mr Jarvis did suffer psychiatric symptoms, it did not proceed to quantify the degree of impairment.

Application for Judicial Review

1. Mr Jarvis seeks judicial review of that decision. As commonly occurs in judicial review cases, the grounds for review evolved over time (that is not a criticism of counsel but rather a reflection of the exquisite elusiveness of the concept of jurisdictional error). The summons specified seven grounds, although some were more in the nature of narrative than discrete allegations of jurisdictional error. The written submissions did not address all of those grounds in terms and in some respects strayed from them. In oral submissions, counsel for Mr Jarvis helpfully distilled his argument to three grounds, each of which was said to amount to jurisdictional error: 1. that "the Review Panel failed to engage with the plaintiff's evidence or submissions before it" (ground 4 in the summons): 2. that "the Review Panel denied the Plaintiff procedural fairness by deciding the matter on a basis upon which the plaintiff was not given notice" (ground 5 in the summons); 3. 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" (ground 6 in the summons).
2. As I think was acknowledged by counsel for Mr Jarvis at the hearing, there is a measure of tension between the first and second of those grounds to which it will be necessary to return.
3. One further ground specified in the summons was that "the Review Panel failed to give any or adequate reasons for its medical assessment of the plaintiff". At the hearing, counsel for Mr Jarvis indicated that the argument in support of that ground was "wrapped up" in the ground alleging failure to respond to a substantial argument. I will address those grounds on the same basis, that is, in a wrapped-up way.

Failure to deal with a substantial argument

1. This ground invited application of the decision of the Court of Appeal in Rodger v De Gelder [2015] NSWCA 211. In that case, Gleeson JA (with whom Macfarlan and Leeming JJA agreed) explained at [93]-[95] that a failure to respond to a substantial argument can amount to jurisdictional error either because there was a failure to accord procedural fairness (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088) or because it amounted to a constructive failure to exercise jurisdiction (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30).
2. Mr Jarvis submits that there was a failure to respond to a substantial argument articulated at [14] of his submissions to the Review Panel to the effect that there was a temporal correlation between the Grafton accident and the onset of psychiatric symptoms which, coupled with the lack of pre-accident symptoms, should be taken to indicate causation. Mr Jarvis submitted that was "a key part of the argument advanced". As it was framed in this Court, the argument was that the Grafton accident had "triggered" symptoms of post-traumatic stress disorder not previously experienced by Mr Jarvis and so should be viewed as causative. The argument implicitly acknowledged that the Grafton accident was relatively less serious than other accidents experienced by him.
3. The insurer submitted that "one paragraph in a submission of over 46 paragraphs and 10 pages" could not be said to provide a clearly articulated substantial argument and questioned the basis on which the Review Panel was "supposed to discern that that particular paragraph (as opposed to the other 45 paragraphs)… was a 'key part' of the [plaintiff's] argument."
4. While there may be some force in the insurer's submission that the argument was not presented as a key part of Mr Jarvis' case in opposition to the insurer's application for review, I do not think there can be any doubt that causation was an issue, if not the central issue, in the assessment to be conducted by the Review Panel.
5. I accept that Mr Jarvis' position on the question of causation was not put front and centre in his submissions to the Review Panel. However, it was made clear that he sought to sustain the decision of Dr Andrews, the Assessor. It was in turn clear from Dr Andrews' decision that the insurer was characterising the Grafton accident as a minor one that could not have caused the devastating psychiatric symptoms Mr Jarvis described whereas it was a necessary premise of Mr Jarvis' claim that it did. The Assessor resolved that issue through the lens of Criterion A in DSM-5, finding "on balance" that that criterion was met because Mr Jarvis' previous multiple exposures to motor accidents had made him vulnerable to overreacting in an accident situation. In other words, a minor accident that should not ordinarily have caused a psychiatric response had on this occasion triggered such a response.
6. Accordingly, I do not accept the insurer's submission that the "substantial argument" relied on to support the Rodger v De Gelder ground was not adequately articulated. The critical question is whether the substance of the argument was dealt with by the Review Panel. In my view, it was.
7. Mr Jarvis submitted that the Review Panel failed in any way to engage with or deal with the temporal connection between the accident and the symptoms coupled with the lack of pre-accident symptoms. He submitted that the first part of the decision (at pages 4-7) was a mere recitation and summary of the evidence with no analysis or "commentary along the way". The next part of the decision (pages 7-12) contained a summary of the history obtained from Mr Jarvis when he was assessed by two members of the Panel. Mr Jarvis submitted that it was not until the end of the decision on the twelfth page that the substantive analysis or "reasons" of the appeal panel were "really contained".
8. The submission tended to analyse the Panel's decision as if it were a judgment published by a court. However, as explained by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [46], the standard required of the reasons stated by a medical panel is different, being informed by the nature of the function the panel was required to perform. The Court said at [47] (the remarks were concerned with Victorian legislation but are of equal application here): "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."
9. The Court concluded, in that context, that the standard required of the statement of written reasons to be provided by the Medical Panel under the Victorian legislation is that they "must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law": at [65]. That statement is of equal application to the requirement under s 61(9) of the Motor Accidents Compensation Act to include reasons in a medical assessment certificate.
10. In accordance with the decision in Wingfoot, the Panel was required to do no more than to form its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise. The Panel came to a different conclusion from that reached by the Assessor on that issue because it did not consider the Grafton accident to satisfy one of the diagnostic criteria in DSM-5.
11. Mr Jarvis noted that the Panel's central conclusion was that the Grafton accident was "not of a nature consistent with the type of events that would meet Criterion A [in DSM-5]" and that, in reaching that conclusion, the Panel failed to deal with a theory clearly supported by the treating psychiatrist and accepted by the medical assessor that this was a "straw that broke the camel's back" kind of case (my words).
12. Counsel expanded upon that argument in oral submissions, noting that the focus of the Panel's reasons was on events predating the accident, from the 1980's, which he contended produced: "…[A] rather odd conclusion that this condition just spontaneously developed 20 years later with no cause and [the panel doesn't] really grapple with that triggering argument which was accepted by the [first] medical assessor and which was put forward by the plaintiff".
13. However, the Panel was not required to explain why it took a different approach from Dr Andrews on that issue. It was not required to "decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions": Wingfoot at [47]. It was not required to "explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else": Wingfoot at [56].
14. Further, as submitted by the insurer, there is no obligation for a Review Panel to refer to every piece of evidence or every passage put forward by the parties. The insurer referred to the following observations of Basten JA in Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [22]: "Neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]."
15. The insurer also relied on the remarks of R A Hulme J, with which I respectfully agree, in QBE Insurance v Alawia [2016] NSWSC 1875 that "how a matter is to be taken into account is a matter for the decision-maker. It may be dismissed, given little weight, or decisive weight."
16. The insurer submitted that the Review Panel was required to do no more than to respond to the substance of the plaintiff's argument, being that the "[plaintiff] had developed nightmares following this accident and therefore the logical connection was they were due to the accident." The insurer submitted that the causation argument was responded to in the reasons where the Review Panel repeated the findings of Assessor Andrews and reached the conclusion (set out above but repeated here for convenience): "Having regard for the extent to which Mr Jarvis had been exposed to multiple traumatic events, considering the nature of the subject motor vehicle accident and taking into account multiple personal losses, the Panel formed the conclusion that the subject motor vehicle 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."
17. That reasoning explained why the Panel rejected the temporal correlation as an adequate basis for finding causation. The Panel simply did not accept having regard to the nature of the Grafton accident that it could have been a contributing factor to the causation of the later symptoms.
18. I accept the insurer's submissions on this issue. The Panel's reasons reveal that it discharged its statutory function in accordance with s 63(3A). It conducted a review of the evidence and made a medical assessment of the injury claimed (that Mr Jarvis was suffering from psychiatric injury, namely anxiety, PTSD and major depressive disorder). A necessary component of the statutory function was to assess whether that injury was caused by the Grafton accident. It is clear that the Panel addressed that question. It determined that "the subject motor vehicle 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 [his] PTSD".
19. The principal reason the triggering argument failed was that it does not seem to be acknowledged or accommodated in DSM-5. If that is because the Manual has fallen behind the medical thinking, that is most unfortunate. But it cannot be said to follow that the Review Panel failed to respond to the argument; the response was to apply the diagnostic criteria as they stand. Others may disagree with the Panel's application of those criteria but that is not a basis for this Court to intervene.
20. For those reasons, I reject this ground.

Deciding the matter on a basis of which the plaintiff was not given notice

1. The submissions in support of this ground were brief. In short, the complaint was that the insurer's submissions in support of the application for review focussed on the diagnosis of PTSD and major depressive order, with particular emphasis on the inconsistencies in various accounts given by Mr Jarvis and his alleged lack of credibility. Mr Jarvis submitted "It is not at all apparent from those submissions that the application for review [to the Review Panel] related to causation of PTSD".
2. The submission acknowledged that the function of the Review Panel is to make its own assessment but contended that, in light of the terms in which the application was brought forward, it was "a denial of procedural fairness not to give the plaintiff an opportunity to respond to the proposition that he suffered a genuine PTSD but it was not in any way caused by the accident."
3. There are two difficulties with that submission. First, as noted by the insurer, the terms of the review application are directed to establishing the "gatekeeper" requirement of s 63 that the assessment was "incorrect in a material respect". A review application is not in the nature of a pleading and does not determine the issues in dispute. Whatever the content of the application, the function of the Review Panel is as specified in s 63(3A) (considered above).
4. Secondly, as already noted, there is a tension between Mr Jarvis' first and second grounds for review. If (as I have found) Mr Jarvis clearly articulated the triggering argument or regarded it as a key part of his argument, he must have appreciated that the issue of causation was in play. As he himself submits (in support of the first ground for review), "the most important material in support of the plaintiff's case on the issue of causation was the temporal connection between the accident and the development of symptoms and the lack of any pre-accident psychiatric symptoms."
5. The focus on the temporal connection necessarily acknowledged that the nature of the accident did not of itself explain the development of symptoms. Put bluntly, it was a minor rear-end collision which, of itself, could not explain the development of PTSD. That the Review Panel would turn its mind to that issue (as required in accordance with its function to make its own assessment of the matter referred) should not have taken Mr Jarvis by surprise. Further, as I have found in considering the first ground for review, he did put his argument on that issue.

Failure to make an assessment in accordance with the Permanent Impairment Guidelines

1. This ground can be addressed briefly. It may be accepted, as contended by Mr Jarvis, that the Panel was required to make a new assessment of "all of the matters with which the medical assessment is concerned" (s 63(3A)). The matter referred was whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10%. The answer was that the 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".
2. 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."
3. 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."
4. 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.
5. For those reasons, I make the following orders: 1. dismiss the summons. 2. the applicant is to pay the respondent's costs.

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: 24 February 2022