Mahroei v QBE Insurance (Australia) Limited

Legislation Cited: Motor Accident Injuries Act 2017 (NSW) ss 1.3, 1.6, 4.4, 7.17, 7.23, 7.26, 10.2, Sch 2 s 2
Motor Accident Injuries Regulation 2017 (NSW) r 4
Personal Injury Commission Act 2020 (NSW)
State Insurance Care and Governance Act 2015 (NSW)

Cases Cited: AAI Limited t/a GIO v Amos [2024] NSWCA 65
Amos v AAI Limited t/as GIO [2023] NSWSC 1193
Frost v Kourouche [2014] NSWCA 39
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Insurance Limited t/as NRMA Insurance v Duc Thuong Le [2024] NSWSC 1022
Insurance Australia Group Ltd (t/as NRMA Insurance) v Keen [2021] NSWCA 287
Wingfoot Australia Partners Pty Ltd Limited v Kocak [2013] 252 CLR 480

Category: Principal judgment

Parties: Yashar Mahroei (Plaintiff)
QBE Insurance (Australia) Limited (First Defendant)
President of the Personal Injury Commission of New South Wales (Second Defendant)
John Harris, Melissa Barrett and John Baker as a Personal Injury Commission Review Panel Constituted under Section 7.26 of the Motor Accident Injuries Act 2017 (NSW) (Third Defendant)

Representation: Counsel:
M Robinson SC (Plaintiff)
M Eirth (Plaintiff)
C Allan (First Defendant)
Solicitors:
Norwest Lawyers (Plaintiff)
Moway & Agnew Lawyers (First Defendant)

File Number(s): 2024/00309556

Publication restriction: Nil

JUDGMENT

1. This judgment involves a judicial review of a decision of a review panel constituted under the Motor Accident Injuries Act 2017 (NSW) (the Act).

2. The plaintiff is Yashar Mahroei. He is represented by M Robinson SC with M Eirth of counsel. The first defendant is QBE Insurance (Australia) Limited (the insurer). It is the only active defendant. The insurer is represented by C Allan of counsel. The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is the Personal Injury Commission Review Panel consisting of John Harris, Melissa Barrett and John Baker (the Review Panel). The second and third defendants filed submitting appearances.

3. The parties relied on an agreed court book consisting of two volumes marked as Exhibit A1 and A2 respectively.

Background

4. The plaintiff was born in January 1990. He resided in Iran until he travelled to Australia in 2012.

5. On 17 September 2017 the plaintiff was involved in a prior motor vehicle accident (the 2017 accident) for which he alleged he had suffered both psychological and physical injuries, a subject to which I will return.

6. On 8 June 2019 the plaintiff was injured in a motor vehicle accident (the 2019 accident). It is this accident which forms the basis for this judicial review. The accounts of the 2019 accident are conflicting, as the Review Panel stated in their reasons for their decision at pages 18-19:

“The subject accident occurred on 8 June 2019. [The plaintiff] was a front seat passenger in his friend’s ute, on their way home from work. [The plaintiff] said they were stationary at a traffic light and he heard a sound and looked in the rearview mirror and saw a car coming fast behind them. [The plaintiff] states the car then hit them from behind. The Panel raised with [the plaintiff] that the circumstances he described are inconsistent with the descriptions of the accident by the driver and the police officer who attended the scene. The police officer and the driver instead provided a narrative that the car [the plaintiff] was travelling in, a blue Ford Ranger ute, was stationary at a red light with the indicator to turn left and when the light turned green began to travel around the corner before suddenly coming to a stop. The at fault driver stated she could not stop in time and there was a rear-end collision.”

7. As noted in an investigative report, the impact damage was borne primarily by the car’s rear tow bar assembly, the damage to the offending driver’s car was much more extensive, including damage to the to the front taillights and headlights. The plaintiff was transferred to hospital by ambulance. The police attended the accident about 20 minutes after the incident. Two photographs were obtained by the attending police.

8. On 26 July 2019, the plaintiff lodged a compulsory third-party claim with the State Insurance Regulatory Authority (SIRA), constituted under the State Insurance Care and Governance Act 2015 (NSW), which is charged with the administration of the compulsory third-party insurance scheme constituted under the Act. In the lodgement of the application form, in response to the question: ‘[i]n your own words, please outline all injuries you received as a result of the accident you have described above’, the plaintiff recorded:

“Headaches, neck pain and stiffness, R) shoulder pain, R) arm pain, pins and needles in R) hand, upper back pain, lower back pain, R) hip and R) leg pain, pins and needles in R) foot, flashbacks, trouble sleeping.”

9. On 24 December 2019, the insurer admitted liability and accepted the plaintiff’s claim beyond the 26-week limit on the grounds that the plaintiff had the requisite (non-minor/non-threshold) psychiatric injury.

10. On 27 May 2020, the insurer denied funding for further psychological treatment. On 1 July 2020, the insurer’s 27 May 2020 decision was affirmed by internal review.

11. On 28 July 2020, the plaintiff lodged an application with the Personal Injury Commission, constituted under the Personal Injury Commission Act 2020 (NSW), disputing the insurer’s decision to deny further funding for psychological treatment. For the purposes of resolving the dispute, the plaintiff was assessed by Medical Assessor Shannon Paisley (Assessor Paisley).

12. On 20 April 2021 Assessor Paisley gave her determination that further psychological treatment (eight sessions) was reasonable and necessary for the plaintiff’s post-traumatic stress disorder (PTSD) caused by the 2019 accident.

13. In her written reasons, Assessor Paisley stated:

“The first motor vehicle accident occurred on 17 September 2017. He told me this was — "the start of the destruction of my life." He sustained physical injuries and was diagnosed with PTSD. He was treated with antidepressant medications by his GP and saw a psychologist. He said that he was slowly building his life up again and had just returned to work in a restricted capacity prior to the second accident which occurred on 8 June 2019.”

14. As to the cause of the plaintiff’s injuries, Assessor Paisley determined:

“17. Causation and reasons

There was a significant exacerbation of his pre-existing PTSD as a result of the second motor vehicle accident on 8 June 2019. This exacerbation persists and continues to impair his functioning. His PTSD symptoms from the first accident had improved significantly prior to the second accident. His PTSD is worse following the second accident.

Other factors, such as the breakdown of his marriage and the Covid-19 pandemic may also have contributed to his distress but were not the cause of his PTSD.

Therefore, the accident on 8 June 2019 caused a substantial and persistent exacerbation to his PTSD. The proposed psychological treatment is for his PTSD and so does relate to the accident on 8 June 2019.”

15. Hence, Assessor Paisley made a finding that the 2019 accident exacerbated the plaintiff’s PTSD which was itself caused by the 2017 accident. She determined that future psychological treatment was reasonable and necessary. This finding is also reproduced in the Review Panel’s decision at [104].

16. On 22 June 2022, the plaintiff underwent an independent medical examination with Dr Martin Allan (Dr Allan). Dr Allan came to the conclusion that the 2019 accident caused a significant aggravation of the plaintiff’s PTSD which was originally caused by the 2017 accident.

17. On 26 July 2022, the plaintiff filed an application with the Personal Injury Commission seeking a determination that his psychiatric injuries were non-minor/non-threshold.

18. On 10 January 2023, for the purposes of this application, the plaintiff was assessed by Medical Assessor Alexey Sidorov (the Medical Assessor).

19. On 25 January 2023, the Medical Assessor, relying on various medical reports, including that of Dr Allan’s, found that the plaintiff’s PTSD had been caused by the 2017 accident and that there was no evidence that the 2019 accident caused any aggravation of his PTSD. This diagnosis meant that the plaintiff was not entitled to damages because s 4.4 of the Act reads:

4.4 No damages for threshold injuries

No damages may be awarded to an injured person if the person’s only injuries resulting from the motor accident were threshold injuries.

20. On 11 February 2023, pursuant to s 7.26 of the Act the plaintiff filed an application with the second defendant seeking a review of the Medical Assessor’s determination. Section 7.26 is reproduced below, references to ‘the President’ refer to the President of the Personal Injury Commission. It relevantly reads:

7.26 Review of medical assessment by review panel

(1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review.

(2) An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect.

…

(5) The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(5A) The panel is to be constituted by 3 persons chosen by the President as follows—

(a) 2 medical assessors,

(b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission.

(6) The review of a medical assessment is not limited to a review of only 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.

(6A) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.

(7) 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.

…

21. In that application, the plaintiff argued that the Medical Assessor’s determination was incorrect in the following respects:

The Medical Assessor failed to:

(a) provide adequate reasons to support his findings;

(b) consider and engage with the claimant’s extensive evidence;

(c) perform a full and independent medical assessment of the claimant;

and

(d) the Medical Assessor relied heavily on the crash investigation report that determined that the accident was minor in determining that there could be no psychiatric injury.

22. On 30 March 2023, Catherine Freeman, the delegate of the President of the Personal Injury Commission (the delegate) accepted that there was reasonable cause to suspect that the Medical Assessor’s determination was incorrect in a material respect.

23. Hence, the matter was referred to a Review Panel. The plaintiff complied with a request of the Review Panel that he provide his medical records relating to the 2017 accident.

24. The Review Panel was constituted by Drs Melissa Barrett and John Baker (psychiatrists), and Member John Harris (the Review Panel). On 15 May 2024 both doctors of the Review Panel conducted a physical examination of the plaintiff. On 24 May 2024 the Review Panel gave a decision affirming the Medical Assessor’s determination. The Review Panel determined that the 2017 accident caused an ‘adjustment disorder’ and not PTSD.

25. At [107] of the Review Panel’s decision, the result of this fresh mental state examination of Drs Barrett and Baker was reproduced. While the plaintiff’s mental state examination appeared later in the decision, I have brought it to the front as it addresses one of the plaintiff’s concerns in his appeal. It reads:

“107. Mr Mahroei was examined by both Medical Assessors on 15 May 2024 who provided the following report.

The claimant was assessed by both Doctors Barrett and Baker by video conference using Microsoft Teams. The claimant was located at his lawyer's office.

A competent interpreter engaged by the Personal Injury Commission was present for the assessment. The assessors clarified whether with both Mr Mahroei and the interpreter, that neither had any difficulties understanding the other.

…

He presented wearing a beanie and hoodie but his clothing appeared clean. He had a long beard but a neatly trimmed moustache. He displayed some pain movements throughout the assessment. He displayed a full range of facial expressions and a warm smile at times. There were no psychomotor features. His speech was normal in rate, volume and rhythm. He provided very detailed responses to questions at times and needed to be asked to pause so that the interpreter could convey the content.

…

His affect was warm, bright and animated. His affect was reactive to the content, particularly when talking about his son. His mood was described as low.

He describes feeling useless and hopeless. He attributes this predominantly to his inability to work and provide financial support to his son. He stated that working might be difficult but that he would prefer to do so as it would be 'much better than feeling this way'. He was not hopeless or negative, stating he had been, 'never disappointed by the universe'. There were no delusions. There was no formal thought disorder. There were no perceptual abnormalities.

He denied any current suicidal ideations. He denied any risk to others.

He was able to concentrate well for the duration of the assessment. He could provide detailed responses to questions. Although he reported an ability to recall certain details, including his work hours in the period immediately prior to the 2019 accident, this appeared inconsistent with his capacity to provide a detailed history regarding other issues in the same-period.

Consistency of Presentation

There were a number of inconsistencies at assessment. Mr Mahroei's description of the subject accident in 2019 was inconsistent with that recorded by the police. When this was raised with him, he maintained the accuracy of his description. Further the panel considered Mr Mahroei's assertion that he felt he was going to die was inconsistent with the nature of the subject accident and when asked to explain his reasons, hearing breaking glass, was inconsistent with the police records of the accident.”

26. The balance of the Review Panel’s findings that are relevant to the issues raised by the plaintiff in the judicial review are as follows:

“[H]e was involved in previous accident in 2017 but could not recall the month it occurred. He was driving a Hyundal 130 and he and his friend were on their way to the shops to buy supplies for a planned social barbeque. He reports he was T boned by another car, colliding with the driver's side at high speed and causing his car to spin. The airbags deployed and the car was written off. The at-fault driver left the scene. Police were called but no ambulance was called. He travelled by taxi home.

The next day he experienced pain and attended his previous GP in Brisbane. He described physical injuries sustained in 2017 accident, a back injury, right shoulder injury and right knee injury. He was treated with an injection in his back which he states helped a little.

In the period prior to the 2019 accident, he acknowledged, he still had pain but it was, 'a little bit better'. He was having physiotherapy and doing exercises. He estimated his pain in the pre-2019 accident period was about 8/10, on a scale of ito 10 where 10 is most severe. He reports the pain preventing him from sitting for long hours.

When asked about any psychiatric symptomatology arising from the 2017 accident, he initially denied psychiatric symptomatology, responding, 'Not really, it was more physical. The panel raised with him that this appeared inconsistent with the contemporaneous records which indicated a diagnosis of post-traumatic stress disorder had been made. He responded, 'Yes, of course'. He explained that he could not go to work, had pain, had no income, and this was causing arguments with his wife. He was in a lot of pain and was unable to sleep due to pain and as a result was, 'nervous, stressed'. He was worrying that he was so impacted at his age and worrying about what the future would hold. When asked specifically if he feared having another accident, he responded that his concerns were primarily related to his pain and his inability to work. When asked specifically if he had symptoms such as nightmares, he responded, 'Of course, because of speed car hit', 'a little bit concerned and scared. When asked if he was avoiding driving, he responded, 'mixed', 'pain mostly' and then he was worried that he, 'couldn't drive because of pain'.

He had seen a psychiatrist but he had ceased seeing the psychiatrist by the time of the 2019 accident. He stated he was using psychotropic medication, the antidepressant agomelatine. He took it for about six months but ceased because he had side effects, 'made me weak' and he therefore ceased by 2019. When asked if he was still seeing the psychologist, he responded that he was not. It was raised with him that the contemporaneous records indicated that he had seen the psychologist two months prior to the subject accident, in April 2019. He responded that he could not recall but accepted this as accurate if it was in the records.

In the period prior to the 2019 accident, he was living with his wife in Sydney. The relationship was happy and he was particularly attentive to her as she was pregnant with their son. He had returned to work because he, 'had to work — no other choice'. He could not recall when he returned to work but stated it was gradually. He had started working three days a week. He acknowledged his employer would not give him 'proper jobs' because of his unreliable attendance.

The subject accident occurred on the 8 June 2019. He was a front seat passenger in his friend's Ute, on their way home from work. He said they were stationary at a traffic light and he heard a sound and looked in the rear view mirror and saw a car coming fast behind them. He states the car then hit them from behind. The panel raised with him that the circumstances he described are inconsistent with the descriptions of accident by the driver and the police officer who attended the scene. The police officer and driver instead provided a narrative that the car Mr Mahroei was travelling in, a blue Ford Ranger Ute, was stationary at red light with the indicator to turn left and when the light turned green began to travel around the corner before suddenly came to a-stop.

The at-fault driver stated she could not stop in time and there was a rear end collision. When this inconsistency was raised with him, he maintained that the driver's narrative was incorrect. He was wearing a seat belt and was pushed forward but no airbags deployed. He was, 'so scared', 'very very nervous', 'felt like I was going to die. He was asked why he interpreted the accident as one in which he was at risk of dying, he responded, that it was due to the noise he heard of breaking of glass'. It was raised with him that there were no windows broken in the accident and he responded, 'could have been any sound'. He states he thought it was third unlucky'. It was raised with him that this was apparently only his second accident and he did not respond.

An ambulance was called and he was taken to hospital. He had no new physical injuries but the 2017 accident related injuries were worsened because they were only healing. He stated, 'all the pain' came back. He later described worsening of back pain and new onset neck pain, impacting sleep.

He reported that after the accident, his doctors certified him fit to work eight hours a week, but his employer would not give him work which he reports was due to his inability to work full time. Further, he states employers were reluctant to employ him as they were fearful of becoming liable for his physical injuries.

Currently, he states his pain is at a severity of about 5/10, on a scale of 1 to 10 where 10 is most severe. He described it as, 'a little better, comes and goes.' He is using gabapentin 2 tablets daily. He states he would not be able to work full time but if work was available he 'would do best to do it', stating it would be difficult, 'but much better than feeling this way'. He has worked rarely, on an off, last for a few days about five months ago.

In regard to the psychiatric symptomatology following the 2019 accident, he stated it had 'affected me very badly'. He states his 'manhood damaged'. He described feeling hopeless and useless because he cannot do anything for his son, meaning providing financial support. He reports that he cannot make decisions or think properly and has had difficulties with his memory for the last two or three years. He described his appetite as increased, with craving for simple carbohydrates, sugary drinks and that his weight has increased. He reports his sleep is impacted, 'mentally and emotionally' due to his thoughts about his son, 'feel like I can't see him'. He denied anhedonia and acknowledged he can enjoy seeing his son. He previously experienced some suicidal thoughts but had dismissed them due to the impact upon his son.

After the 2019 accident, he had been 'forced to drive' on a few occasions. His driver's license expired in 2021, which he attributes to having no money to renew the licence.

He had been receiving treatment through Workers' Doctor's practice. However, since his visa expired in 2021, he has no Medicare entitlement. Further, he states the insurer stopped funding treatment. Therefore, he has not received any further prescriptions for medication. He has tried to remember the strategies suggested by the psychologist, including pleasant event scheduling and distracting activities.

Currently, he acknowledged significant difficulties related to his invalid visa. He states that without the visa he cannot work but that he cannot afford the $2500 required to apply for a permanent residency visa. He acknowledged these circumstances were, 'much more difficult than you can even imagine'. He is not entitled to Centrelink and thus states he has had no income for a few years. He has had periods of homelessness. He used to have a tent which he would sleep in at times but states his tent became mouldy.

Over the last year, he has been staying on a friend's floor in a shared home. He states he eats, 'whatever I can get'. He has never begged for food but has asked for help, stating he has been, 'never disappointed by the universe' and has always been able to access food. His friend does his laundry for him. He does not perform any cooking or chores. When asked why this was so, he stated that because of his reliance on his friend, 'I feel like I'm useless'. When asked why he was not contributing to any chores, he responded, I don't know' and described lack of motivation. He reports that he showers once a week. He sits in the garden and looks at the trees. His relationship with his wife broke-up in 2020 or 2021. She told him he was, 'useless', 'not working' and, 'mental', because he was, 'sitting at home doing nothing'. He had argued with his wife and she then prevented him from having access to their son as she was angry with him.

5. Conclusion

On issues raised by the parties, the panel considers that based on a comprehensive history of the pre-existing condition, as well as a review of all relevant pre-accident contemporaneous records, that Mr Mahroei had a pre-accident diagnosis of an adjustment disorder.

There is no evidence either from history or the screening medical assessments by the International Health and Medical Services who assessed him when he was in the detention centre, of any post-traumatic stress disorder due to military service or other experiences in Iran.

At this assessment, he reported the predominant impact of the 2017 accident was physical rather than psychological and that the psychological symptoms were due to the impact of pain and his concerns about the impact of pain upon his capacity to work and earn an income. The panel conducted a thorough exploration of PTSD symptoms. In response, he did not report sufficient symptoms to fulfill DSM-5TR criteria for PTSD, noting his account of minimal psychiatric symptomatology, and the absence of PTSD related fear or avoidance symptoms, or significant re-experiencing symptoms. Instead, the Panel considered that his symptoms after the 2017 accident were more consistent with a diagnosis of an Adjustment Disorder.

The Panel notes the diagnosis provided by the pre-accident treating psychologist, Carl Nielsen, was adjustment disorder with depressed and anxious mood and somatic symptom disorder, predominant pain, as of entries of 26 July 2018 having previously diagnosed post-traumatic stress disorder in the 14 July 2018. Mr Nielsen acknowledges the diagnosis of adjustment disorder secondary to pain in his letter of 18 November 2019, which is consistent with his contemporaneous entries of 10 January 2019 and subsequent entries where he recorded 'anxiety disorder' which is not a DSM-5TR condition. It is, therefore, unclear why Mr Nielsen's letter of 1 November 2021 indicated a history of post-traumatic stress disorder arising from the 2017 accident.

Mr Mahroei’s account that the psychiatric symptoms had resolved by the time of the 2019 accident were inconsistent with the persistence of psychological symptoms recorded in the psychologist's entry of 5 April 2019, just two months prior to the accident.

Mr Mahroei provided a vague account of his employment history in the period between 2017 and 2019, acknowledging there was a period he was unable to work, but that he had gradually returned to work, albeit with intermittent attendance in the period before the accident. The panel noted that Mr Mahroei has provided differing accounts of his employment history prior to the 2019 accident. The contemporaneous records indicate that the certificate of capacity/certificate of fitness completed by Dr Lim on 22 November 2018 which indicated he had no work capacity and the certificate of capacity/certificate of fitness by Dr Lim on 6 December 2018 indicated he had no work capacity. The certificate of capacity/certificate of fitness 21 March 2019 completed by Dr Sebastian Calvache-Rubio indicated he had the capacity for part-time work from the 21 March 2019 to the 11 April 2019, eight hours a week and the certificate of capacity/certificate of fitness on 5 April 2019 by Dr Lim indicated he had capacity for part-time work, 5 April 2019 to 2 May 2019 eight hours a week, that is within one month of the subject accident. Thus, the panel finds that Mr Mahroei was not working full time in the period prior to the accident.

His post 2019 accident work capacity, for part time work, thus appears consistent with the pre-accident work capacity. Mr Mahroei's assertion that employers refused to give him work because he could not work full time, and because of the past history of physical injury, does not seem plausible given he was apparently attaining part time work after the 2017 accident.”

The summons

27. On 21 August 2024, the plaintiff filed a summons seeking:

28. A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement of reasons for decision of the third defendant and issued by the second defendant is void and of no effect.

29. An order setting aside the decision and the statement of reasons for decision of the third defendant and issued by the second defendant.

30. The plaintiff relied upon five grounds of judicial review. They are as follows:

“Ground 1

The Review Panel determined that the diagnosis of the Plaintiff's psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 was an adjustment disorder. In respect of the dispute between the Plaintiff and the First Defendant in respect of the subject motor vehicle accident that occurred on 8 June 2019, it was not in dispute, and it was not an issue in dispute, that the Plaintiff's psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 was a PTSD, and the issue in dispute between the Plaintiff and First Defendant was whether, and to what extent, the preexisting PTSD had been aggravated, accelerated or exacerbated by the subject motor vehicle accident that occurred on 8 June 2019. The Review Panel erred by failing to accord the Plaintiff, and the First Defendant, procedural fairness, in the sense of practical injustice, when the Review Panel undertook the task diagnosing the pre-existing psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 and concluding that it was an adjustment disorder. The Review Panel, to comply with its obligation to afford procedural fairness, should have notified the Plaintiff, and the First Defendant, that the diagnosis of the pre-existing condition PTSD was being examined and allowed the Plaintiff, and First Defendant, to make submissions, and provide evidence, as to adopting that course and as to the matter of diagnosis in respect of the psychiatric or psychological condition caused by the motor vehicle accident on 17 September 2017.

Ground 2

The Review Panel was in error in determining that the Plaintiff's pre-existing psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 was not a PTSD and was an adjustment disorder. On the dispute between the Plaintiff and the First Defendant, that matter did not arise and did not form part of the Review Panel's statutory function.

Ground 3

The Review Panel was in error in respect of its reason's obligation as to how, and why, the Plaintiff's pre-existing psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 was not PTSD and was an adjustment disorder. The Review Panel was in error in respect of its causation findings in respect of the relevance and role of the Plaintiff's other life circumstances in the determination that the Plaintiff's pre-existing psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 was not a PTSD and was an adjustment disorder.

Ground 4

The Review Panel was in error in dismissing the Plaintiff's account as to the immediate circumstances of the subject motor accident on 8 June 2019. The Review Panel dismissed the Plaintiff's account because the Plaintiff identified the sound of breaking glass as being a matter which caused him to be in fear. The Review Panel dismissed the Plaintiff's account because the Review Panel noted that there were no windows that were broken, but the Review Panel overlooked, as recorded in the Review Panel's earlier reasons, that headlights had been damaged. The Review Panel, in dismissing the breaking of glass, rejected the Plaintiff's description of his perception to the incident. The Review Panel erred by using this as a basis to determine that a diagnosis of PTSD could not arise, but this was an error because the Review Panel ought to have been considering whether the circumstances could, and factually did, aggravate, accelerate or exacerbate the Plaintiff's pre-existing PTSD.

Ground 5

The Review Panel erred in the causation test that it applied. Rather than considering whether, on the probabilities, including by a material contribution, the Plaintiff's pre-existing PTSD could be, and had been, aggravated, accelerated or exacerbated by the subject motor accident on 8 June 2019, the Review Panel in error focussed on the different matter of the diagnosis of the psychiatric or psychological injury caused by a different motor accident that occurred on 17 September 2017. The Review was in error in approaching that diagnosis on a basis that treated the Plaintiff's other life circumstances as if causally divisible in a manner contrary to the orthodox operation of the law of causation applicable to the Plaintiff's claim.”

Statutory framework

29. I shall briefly set out the relevant statutory framework established by the Act and the Motor Accident Injuries Regulations 2017 (NSW) (the Regulations).

30. SIRA is charged with the administration of the compulsory third-party insurance scheme established by the Act*.* Section 1.3 of the Act outlines its objects:

1.3 Objects of Act

(1) This Act establishes a new scheme of compulsory third-party insurance and provision of benefits and support relating to the death of or injury to persons as a consequence of motor accidents.

(2) For that purpose, the objects of this Act are as follows —

(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities,

(b) to provide early and ongoing financial support for persons injured in motor accidents,

…

(d) to keep premiums for third-party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for soft tissue injuries and psychological or psychiatric injuries that are not recognised psychiatric illnesses,

…

(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes,

…

31. Section 1.6(1) of the Act introduces the concept of a “threshold injury” (formerly a ‘minor’ injury):

1.6 Meaning of “threshold injury”

(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following—

(a) a soft tissue injury,

(b) a psychological or psychiatric injury that is not a recognised psychiatric illness.

32. Rule 4 of the Regulations provides that “acute stress disorder” and “adjustment disorder” are included as a threshold injury for the purpose of the Act.

4 Meaning of "threshold injury", section 1.6(4) of the Act

…

(2) Each of the following injuries is included as a threshold injury for the purposes of the Act—

(a) acute stress disorder,

(b) adjustment disorder.

…

33. As noted above, s 4.4 of the Act bars an award of damages at common law where “the person’s only injuries resulting from the motor accident were threshold injuries”.

34. Division 7.5 of the Act deals with the medical assessment of a person who has claimed under the Act. The division provides a mechanism for dealing with disputes concerning “medical assessment matters”, including whether the injury caused by the motor accident is a threshold injury for the purpose of the Act. Sections 7.17, 7.23(1), 7.23(2), 7.26 and s 2 of Sch 2 are relevant, they are set out below.

7.17 Definitions

…

"medical assessment" means an assessment of a medical assessment matter under this Division.

"medical dispute" means—

(a) a dispute between a claimant and an insurer about a medical assessment matter, or

(b) an issue arising about a medical assessment matter in proceedings before a court for damages or in connection with the assessment of a claim by the Commission.

…

7.23 Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) The certificate is, in any court proceedings or in any proceedings in connection with a merit review under Division 7.4 or a claims assessment under Division 7.6—

(a) prima facie evidence of any matter certified as to the degree of impairment of earning capacity of the injured person as a result of the injury concerned, and

(b) conclusive evidence of any other matter certified.

…

(7) 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.

…

7.26 Review of medical assessment by review panel

(1) A claimant or an insurer may apply to the President to refer a medical assessment under this Division by a single medical assessor to a review panel for review.

(2) An application for the referral of a medical assessment to a review panel may be made only on the grounds that the assessment was incorrect in a material respect.

(3) A medical assessment may not be referred for review under this section on more than one occasion.

…

(5) The President is to arrange for the medical assessment to be referred to a review panel, but only if the President is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.

(5A) The panel is to be constituted by 3 persons chosen by the President as follows--

(a) 2 medical assessors,

(b) 1 member of the Commission who is a member assigned to the Motor Accidents Division of the Commission.

(6) The review of a medical assessment is not limited to a review of only 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.

(6A) To avoid doubt, any medical re-examination of the claimant for the purposes of the review need not be conducted by all of the members of the panel if the members agree for it to be conducted by only some of the members.

(7) 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.

…

SCHEDULE 2 – Matters for the purposes of Part 7

2 Medical assessment matters

The following matters are declared to be medical assessment matters for the purposes of Part 7—

(a) the degree of permanent impairment of the injured person that has resulted from the injury caused by the motor accident (including whether the degree of permanent impairment is greater than a particular percentage),

…

(b) whether any treatment and care provided or to be provided to the injured person is reasonable and necessary in the circumstances or relates to the injury caused by the motor accident for the purposes of section 3.24 (Entitlement to statutory benefits for treatment and care),

…

(d) the degree of impairment of the earning capacity of the injured person that has resulted from the injury caused by the motor accident,

(e) whether the injury caused by the motor accident is a threshold injury for the purposes of the Act.

…

35. Section 10.2(1) of the Act authorises SIRA to issue Motor Accident Guidelines (the Guidelines) with respect to any matter which is authorised under the Act to be provided for in the Motor Accident Guidelines:

10.2 Motor Accident Guidelines of Authority

(1) The Authority may issue Motor Accident Guidelines with respect to any matter that is authorised or required by or under this Act to be provided for by Motor Accident Guidelines.

…

36. The relevant Guidelines in force at the time of the Review Panel assessment were the Guidelines Version 9.2 which commenced on 10 November 2023. Part 5 of the Guidelines deals with the assessment of threshold injuries:

Introduction

5.1 This Part of these Guidelines is made under the Motor Accident Injuries Act 2017 (NSW) (the Act), including sections 1.6(5), 3.31 and 10.2 of the Act with respect to:

(a) assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the Act

…

5.2 Division 1.2, section 1.6 of the Act and Part 1, clause 4 of the Regulation provides the definition of a threshold injury.

Assessment for soft tissue & threshold psychological or psychiatric injuries

General provisions for assessment

5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.

5.4 Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.

5.5 A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person’s current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:

(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions

(b) a review of all relevant records available at the assessment

(c) a comprehensive description of the injured person’s current symptoms

(d) a careful and thorough physical and/or psychological examination

(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.

…

Threshold psychological or psychiatric injury assessment

5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.

5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.

5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.

The judicial review

37. The crux of the judicial review is whether the Review Panel was correct to determine that the plaintiff did not suffer PTSD in the 2019 accident but rather, suffered from an adjustment disorder. There was a finding in a treatment dispute the plaintiff had suffered an exacerbation of PTSD in the 2019 motor accident.

38. The grounds of judicial review as posed by the plaintiff articulate the same matter in slightly different ways.

39. The plaintiff submitted that the statement of reasons for the decision given by the Review Panel, issued by the second defendant, contains both jurisdictional error and error on the face of the record. The plaintiff claimed that the 8 June 2019 accident caused a PTSD, which included an aggravation of pre-existing conditions caused by the 17 September 2017 accident.

40. The insurer submitted that the 8 June 2019 accident did not cause any psychiatric or psychological injury or, alternatively, the plaintiff's account should not be accepted.

41. The plaintiff's entitlement to damages in respect of the injuries sustained in the accident is contingent on his injuries being non-threshold (or "minor" as it was known prior to an amendment to the legislation on 1 April 2023).

42. There was no dispute between the plaintiff and the insurer that the plaintiff's physical injuries were threshold injuries. However, the dispute between the plaintiff and the insurer in this judicial review is whether the plaintiff's psychiatric injury was a threshold injury. If plaintiff suffered an adjustment disorder, it is a threshold injury. If the plaintiff suffered PTSD, he has suffered a non-threshold injury.

Judicial review grounds 1 and 2

43. The plaintiff’s first challenge to the decision of the Review Panel is based on a denial of natural justice. The plaintiff submitted that the only issue that fell to be decided by the Review Panel was the nature of the injury occasioned by the 2019 accident. In moving to decide the nature of the injury occasioned by the 2017 injury without putting the plaintiff on notice, the plaintiff was deprived of the opportunity of commenting on the determination of a decision that would significantly affect his interests.

44. The second ground of judicial review concerns whether the factual determination as to the injury occasioned by the 2017 accident was incorrect. It also seems to rehearse the point raised in the first ground: the injury caused by the 2017 accident ‘did not arise and did not form part of the Review Panel’s statutory function’. The second ground in substance seeks a review of the merits of the decision; it asks this Court to review the evidence and find, contrary to the Review Panel that, in fact, the plaintiff suffered PTSD as a result of the 2017 accident.

45. The plaintiff’s appeal to natural justice or procedural fairness is an invocation of the hearing rule. Where the power to decide has a statutory basis, the hearing rule is implied as a matter of statutory construction: it can only be excluded by clear words or by necessary intendment. The content of the hearing rule is gathered from the statute itself, as Brennan J stated in his Honour’s well-known passage from Kioa v West (1985) 159 CLR 550 at 612-613:

“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oft-cited passage in his judgment in Russell v. Duke of Norfolk [[1949] 1 All E.R. 109, at p. 118]:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.””

46. Earlier in that same judgment at 587, Mason J stated:

“In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. F.A.I. [(1982) 151 C.L.R. 342.] is one illustration. Cole v. Cunningham [(1983) 49 A.L.R. 123.], is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida ([1970] 2 Q.B. 417, at p. 431.); and Daganayasi v. Minister of Immigration ([1980] 2 N.Z.L.R. 130.).”

47. To afford procedural fairness, the requirement that a person’s attention be drawn to the critical issues to be decided is known as the requirement of disclosure – it is of fundamental importance that a person be sufficiently aware of the case that they are to meet. Again, the content and how it is to apply to a particular situation is largely a question of statutory interpretation. The question of whether a person has been sufficiently informed of or is aware of the case that they are to meet depends upon the precise factual matrix. It is of significance that, in this instance, the decision under review was made by an administrative, and not a curial, body. I extract a statement from Insurance Australia Group Ltd (t/as NRMA Insurance) v Keen [2021] NSWCA 287 where, at [38] – [40], Leeming JA stated:

“[38] …Courts resolve disputes. Medical assessors assess the degree of permanent impairment.

[39] A court's task is to resolve justiciable controversies, constituted by the parties' competing claims. A court should address substantial and clearly articulated submissions, not least because there is a danger that the entirety of the dispute will not be resolved if some substantial submission is not addressed. A court may not need to resolve every issue, but it should make it clear why the submissions it has resolved are dispositive of the case and ideally why it is unnecessary to determine other submissions which have been advanced by the parties unless they are patently insubstantial.

[40] The function of the assessor is quite different. The assessor was obliged following the referral by SIRA to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. …”

48. In Wingfoot Australia Partners Pty Ltd Limited v Kocak [2013] 252 CLR 480 (‘Wingfoot’) the High Court considered the requirement of a statutorily constituted medical panel to adhere to the rules of natural justice. In that case, a court was bound to accept the findings of the medical panel of the questions referred to it. At [47], French CJ, Crennan, Bell, Gageler and Keane JJ stated:

“[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 [cf Masters v McCubbery [1996] 1 VR 635 at 645.]. 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.”

49. In AAI Limited trading as GIO v Amos [2024] NSWCA 65 (Amos), the Court of Appeal considered a similar dispute to the dispute presently before this Court. There, the claimant was injured in a motor accident. One month following the accident, the claimant suffered a fall at their home and fractured their eye socket. A medical assessor determined that the injury occasioned by that fall was caused by the motor accident. The insurer appealed to a review panel constituted under the Act. The review panel found that the injury occasioned by the fall was not caused by the motor accident.

50. In Amos v AAI Limited t/as GIO [2023] NSWSC 1193, the decision of the review panel was challenged on the basis that it did not afford the claimant procedural fairness. In particular, it was argued that in determining whether or not the claimant suffered from a certain neurological condition, the review panel denied the claimant procedural fairness by failing to identify to the claimant which symptoms would support a diagnosis of that neurological condition, and then interrogating the plaintiff on those identified symptoms. At first instance the primary judge in the judicial review stated at [131]-[133]:

“[131] However, in this case, it was necessary for the Review Panel to alert the plaintiff, by asking questions during clinical examination and/or otherwise, as to the precise aspects of the distinction the Review Panel was seeking to make between the symptoms suffered by the plaintiff and the symptoms necessary to support the conclusion as to causation, according to the diagnosis of the initial Medical Assessor.

[132] In the absence of such an alert or such notice, the plaintiff was denied a real and practical ability to deal with the issues that were foremost in the minds of the members of the Review Panel and the plaintiff was, as a consequence, denied procedural fairness.

[133] I have no doubt that the doctors on the Review Panel were well aware of the difference between “paroxysmal positional vertigo” and “dizziness”, but to the extent that those doctors relied upon definitions used by the plaintiff and descriptions by the plaintiff (and his general practitioner) and in circumstances where the terms may, loosely, be utilised interchangeably, the Review Panel was required to draw the distinctions it was seeking to make to the attention of the plaintiff in a way which gave the plaintiff reasonable opportunity to deal with the issue.”

51. The Court of Appeal in Amos, overturning the decision of the primary judge, rejected the suggestion by the primary judge that the standard of natural justice that is required to a court is equivalent to that required of a review panel under the Act. At [53], Adamson JA (with whom Kirk and Basten JJA agreed) stated:

“[53] Procedural fairness depends, in part, on context. For example, in a judicial or arbitral setting, procedural fairness generally requires a hearing, whereby parties have an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent arbiter or judge. However, in the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing.”

52. The Court of Appeal in Amos also drew attention to the well-known statement of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 where his Honour said at [37]:

“[37] Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

53. The Court of Appeal in Amos also quoted a passage of Leeming JA’s from Frost v Kourouche [2014] NSWCA 39 where his Honour said at [42] (Frost):

“[42] The materials before the Court do not suggest any practical injustice or absence of a fair hearing. It was perfectly clear that NRMA was contending that Ms Kourouche's claimed psychological conditions did not accord with what was recorded in her social media profile. It was perfectly clear that NRMA submitted that Ms Kourouche's history was false. It was perfectly clear that NRMA submitted that the review panel should certify a psychological impairment of less than 10% such that s 131 would apply. And it was perfectly clear when the review panel determined to re-examine Ms Kourouche that the possibility that all or some of its members might disbelieve her history was real. This is a not a case where the possibility of the panel's adverse conclusion ought to have taken Ms Kourouche by surprise.”

54. The Court of Appeal in Amos considered that the case before them fell into the same paradigm:

“[59] In the present case, the principal issue before the Review Panel was whether the injuries sustained in the accident had caused the fall not, as the insurer submitted in this Court, whether the claimant had experienced all or any of the symptoms of PPV. The claimant (through his solicitors) was well aware, by reason of the documents relied on by the insurer and the submissions it made (which have been set out or summarised above), that the insurer was relying on matters, which included the following, to submit that the fall was not caused by those injuries…

[61] In these circumstances, it is difficult to accept that the claimant was taken by surprise by the Review Panel’s adverse conclusion, since this was the conclusion for which the insurer contended, as supported by its submissions and documents, and in particular, the clinical notes which recorded the claimant’s presenting histories and contemporaneous symptoms. The Review Panel was not obliged to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J). Further, the Review Panel was entitled to apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision.

[63] In the present case, the claimant had several opportunities to describe his symptoms after both the accident and the fall (to the ambulance officers, the hospital staff, Dr Voutos, experts to whom his solicitors referred him, experts by whom he was examined at the request of the insurer, in his statement and to the various medical assessors, as well as in the course of the examination conducted by Dr O’Neill). He well knew the relevance of such descriptions since the matter to be determined by the Review Panel was whether the fall was causally connected with the injuries he sustained in the accident. The claimant and his solicitors were in a position to appreciate that the causal connection could be established if he could show that he suffered a head injury in the accident which caused vertigo of the type that could be shown to have precipitated the fall. While the application of the medical expertise (particularly in neurology) employed by Dr O’Neill in his assessment may not have been known by the claimant or his solicitors, they were in a position to know, at least in a general sense, the significance of the questions about dizziness and vertigo.”

55. Having set out the authorities so, the question comes into clear focus, namely whether the Review Panel failed to draw the plaintiff’s attention to the fact that it was considering making a finding that the plaintiff’s injury that arose from the 2017 accident was not PTSD, but an ‘adjustment disorder’ denying the plaintiff procedural fairness? As a matter of practicality, did it result in an injustice?

The plaintiff’s submissions

56. The plaintiff says that the nature of the injury arising out of the 2017 accident was not in issue between the parties. The insurer did not argue that the injury arising from the 2017 accident was an adjustment disorder, but rather argued that there was no psychiatric and/or psychological injury caused by the 8 June 2019 accident.

57. The plaintiff says, nonetheless, if the Review Panel could lawfully make an independent determination of the injury arising from the 2017 accident, the failure to bring the plaintiff’s attention to that determination was a denial of procedural fairness. The plaintiff continued (citations omitted):

“[20] In this case, a diagnosis of adjustment disorder was determinative so the parties should have been given the opportunity to meet that issue. In this case, the Review Panel approached its statutory task to determine the injury caused by the 8 June 2019 accident in a markedly unorthodox, and legally misdirected, manner. Rather than focus on the injury caused by the 8 June 2019 accident, and then consider, if appropriate, the impact of pre-existing, or post-occurring, events, the Review Panel focussed on a different question, viz., the injury caused by the 17 September 2017 accident, and how that impacted the injury caused by the 8 June 2019 accident.

[21] In this misdirected process, the Appeal Panel had regard to materials beyond those considered by the Plaintiff’s medical-legal expert and that consideration occurred in a misdirected process that was asking the incorrect question for the statutory task being performed. In this case, it is not possible, or permissible, to read, as if by way of a reconstruction, the Review Panel’s reasoning as to what injury was caused by the 8 June 2019 accident as if severing, or ignoring, the Review Panel’s decision and path of reasons that focussed on the injury caused by the 17 September 2017 accident. The Review Panel, if intent of going down such a course of inquiry, should have identified that course of inquiry to the parties, particularly as the course of inquiry that was to be adopted was misdirected or, at the very least, highly unorthodox and irregular. The Plaintiff would have then been able to address the legality of such a misdirected course of inquiry and would have been able to address the components making up such a course of inquiry. These matters amount to a procedural fairness error and an error as to the construction and operation of the statutory power being exercise, including the Review Panel asking the incorrect question.”

The insurer’s submissions

58. The insurer submitted, the plaintiff sought to appeal from the Medical Assessor’s determination to the Review Panel on the basis that the Medical Assessor ‘failed to perform a full and independent medical assessment of the [plaintiff]’ to determine ‘[w]hether or not [he] suffered with a psychiatric injury namely PTSD, prior to the [2019 accident] as a result of the [2017 accident]’. Furthermore, the insurer submitted that it considered the plaintiff’s pre-accident medical evidence and questioned him on it in accordance with cl 5.6 of the Guidelines: ‘[t]his was precisely what the [p]laintiff had submitted [the medical Assessor] had failed to do’. The plaintiff continued (citations omitted):

“The question before the Review Panel was whether the Plaintiff suffered PTSD (aggravated or otherwise) caused by the accident. In considering whether the accident had aggravated a pre-existing PTSD it was entirely appropriate for the Review Panel to form its own opinion on whether there was in fact a pre-existing PTSD. This accords with clause 5.6 of the Guidelines and the task of the Review panel as described by the High Court in Wingfoot (supra) at [47].

…

The critical issue or factor was whether the accident aggravated a pre-existing psychiatric condition. That was an issue which was addressed in the medico legal evidence relied upon by the parties and ventilated by the parties in their submissions. The Review Panel was not obliged to spell out its thought processes.”

Resolution

59. There is no doubt that the Medical Review Panel has an obligation to afford procedural fairness. The function of the Review Panel 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 (Wingfoot).

60. I do not accept the contention that the plaintiff or his solicitors were taken by surprise by the determination, that he or his solicitors were insufficiently aware of the decision that the Review Panel was to make, or that the plaintiff was deprived of an opportunity to be heard. The 2017 accident and the injury arising from it was expressly raised with the plaintiff in the assessment by the doctors of the Review Panel. As the Doctors reported and as is reproduced in the Review Panel’s decision:

“When asked about any psychiatric symptomatology arising from the 2017 accident, he initially denied psychiatric symptomatology, responding, ‘Not really, it was more physical’. The panel raised with him that this appeared inconsistent with the contemporaneous records which indicated a diagnosis of post-traumatic stress disorder had been made.”

61. While the insurer complained that the Medical Assessor had failed to conduct a comprehensive review of the plaintiff’s medical history, the plaintiff was actually questioned and heard on the 2017 accident causing this case to fall within the paradigm set out by Leeming JA in Frost at [42]. Here, the review panel conducted its own comprehensive mental state examination.

62. Mr Neilson, the plaintiff’s treating psychologist, whose opinions were before the Review Panel and known to both parties, expressed that his opinion was adjustment disorder with depressed and anxious mood and somatic symptom disorder, predominant pain, as of entries of 26 July 2018 having previously diagnosed PTSD in the 14 July 2018. Mr Nielsen acknowledged the diagnosis of adjustment disorder secondary to pain in his letter of 18 November 2019, which is consistent with his contemporaneous entries of 10 January 2019 and subsequent entries where he recorded ‘anxiety disorder’ which is not a DSM-5-TR condition.

63. Dr McMahon cast doubt on whether the 2017 accident caused PTSD, his comments were reproduced at [94] of the Review Panel’s decision and are as follows:

“Mr. Mahroei’s performance on the Sympton Validity Testing casts significant doubt on his self-report. If his report is taken at face value, the first accident caused anxiety and pain such that he did not return to driving and had reduced work capacity and this was aggravated by the second accident. However, he improbable symptoms reported, including psychotic symptoms, and the medication and substance misuse make it difficult to accurately determine the relationship between the subject accident and the reported symptoms.”

64. The Review Panel conducted its own medical state examination. It recorded that the panel conducted a thorough exploration of PTSD symptoms and set out its findings after conducting its own clinical examination. It was a comprehensive consideration of whether the plaintiff suffered a relevant psychiatric injury from the 2019 accident. As to the 2019 accident, the Review Panel stated that the plaintiff did not report sufficient symptoms to fulfill DSM-5-TR criteria for PTSD, noting his account of minimal psychiatric symptomatology, and the absence of PTSD related fear or avoidance symptoms, or significant re-experiencing symptoms. Instead, the Review Panel exercising its own medical experience and medical expertise concluded that the plaintiff’s symptoms after the 2017 accident were more consistent with a diagnosis of an adjustment disorder. It also provided reasons as to why the plaintiff’s account of his mental injuries from the two accidents were inconsistent.

65. It is my view that the Review Panel took into consideration the prior accident and medical records that were available to it. It concluded by its own the medical state examination and formed its own opinion. After conducting a thorough exploration of PTSD symptoms, the plaintiff did not report sufficient symptoms to fulfill the DSM-5-TR condition. The Review Panel’s task was to assess whether plaintiff’s injury, PTSD was caused by the 8 June 2019 motor accident. It is not obliged to make a binary decision as suggested by the plaintiff that either the plaintiff suffered PTSD or he did not. The Review Panel considered that the plaintiff’s symptoms after the 2017 accident were more consistent with a diagnosis of an adjustment disorder and provided reasons to support its conclusion. The Review Panel was entitled to arrive at a different diagnosis of the plaintiff’s psychological state.

66. The medical reports of Mr Nielsen, a psychologist, were before the Review Panel and both parties had copies of his reports. This, in conjunction with what has been stated above, afforded the plaintiff procedural fairness.

67. In these circumstances, there was no obligation for the Review Panel expressly to notify the parties that they intended to make a finding that plaintiff’s diagnosis was an adjustment disorder. The plaintiff was given sufficient notice and sufficient opportunity to be heard on his pre-2019 accident condition. The plaintiff’s contention throughout the proceedings was that he had suffered an exacerbation of PTSD. The issue to be determined by the Review Panel was what was the psychological injury suffered in the 2019 accident, it was necessary therefore to consider the plaintiff’s pre-2019 accident state, for the reasons given, it did not agree with the plaintiff’s submissions.

68. Judicial review grounds one and two fail.

Judicial review grounds 3 and 5

69. The first element of plaintiff’s third ground of judicial review is that the Review Panel was in error by failing to explain how it concluded that the 2017 accident caused an adjustment disorder as opposed to PTSD. The second element of the third ground is aimed towards causation in respect of the relevance and role of the Plaintiff's other life circumstances in the determination that the Plaintiff's pre-existing psychiatric or psychological condition caused by an earlier motor vehicle accident on 17 September 2017 was not a post-traumatic stress disorder and was an adjustment disorder.

70. As to the second element, I take it to mean that the Review Panel was in error in considering the probable effect of the 2017 accident on the plaintiff in isolation of his personal circumstances. If this is correct, the plaintiff’s fifth ground of judicial review raises similar issues as the third ground of judicial review, so they are to be dealt with together.

71. As to the first element that the Review Panel ‘was in error in respect of its reason’s obligation’, the plaintiff relies on Wingfoot at [55], where the High Court said:

“[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.”

The plaintiff’s submissions

72. The plaintiff submitted that the Review Panel failed in its obligation to set out its path of reasons for its conclusion that 2017 accident caused an adjustment disorder. It is said that the Review Panel’s conclusion was primarily based on documentary evidence. The plaintiff says that the Review Panel did not give reasons but merely provided an ‘ipse dixit’ at page 22 of its determination. He says that the Review Panel did not provide reasons for why a diagnosis of post-traumatic stress disorder was not available and given that the Plaintiff’s case was that post-traumatic stress disorder was the applying diagnosis, the reasons obligation extended to dealing with that aspect of the Plaintiff’s case.

73. As to the causation limb of this challenge, the plaintiff’s arguments in their written submissions are similar to those raised in the summons. It argues that the Review Panel (with the concession of [32]) failed to set out the causation test that was required. The plaintiff submitted (citations omitted):

“The Review Panel erred in the causation test that it applied. Rather than determining what injury was, on the probabilities, caused, including by a material contribution, by the 8 June 2019 accident, which could include consideration of whether a pre-existing condition had been aggravated, accelerated or exacerbated, the Review Panel in error focussed on the causally different matter of what injury was caused by a different accident on 17 September 2017.

This approach was an error because it invited focus on a different motor accident and that focus led the Review Panel to approach causation as if the injury was causally divisible in a setting where psychiatric or psychological injuries caused by different events are not legally divisible in a causal pathway sense. Under the applying guidelines for assessment of whole person impairment, there is a specific mechanism for dealing with pre-existing conditions in respect of psychiatric or psychological injury which mimics divisibility in a manner contrary to the orthodox operation of the law of causation applicable to the Plaintiff’s claim, but those provisions did not apply to the statutory task of the Review Panel.”

The insurer’s submissions

74. The insurer challenges the plaintiff’s contention that the Review Panel’s determination of the injury arising from the 2017 accident was based principally on a review of documents. It points to the following paragraph of the Doctors’ Barrett and Baker’s medical report documenting their video-conference assessment of the plaintiff:

"At this assessment, he reported the predominant impact of the 2017 accident was physical rather than psychological and that the psychological symptoms were due to the impact of pain and his concerns about the impact of pain upon his capacity to work and earn an income. The panel conducted a thorough exploration of PTSD symptoms. In response, he did not report sufficient symptoms to fulfill DSM-5TR criteria for PTSD, noting his account of minimal psychiatric symptomatology, and the absence of PTSD related fear or avoidance symptoms, or significant re-experiencing symptoms. Instead, the Panel considered that his symptoms after the 2017 accident were more consistent with a diagnosis of Adjustment Disorder."

75. The insurer submitted that the Review Panel has clearly set out its path of reasoning and that the plaintiff’s challenge regarding the failure to give reasons is without merit.

Resolution

76. As to the issue of causation, the plaintiff submitted that the Review Panel erred in considering the nature of the accidents in isolation from the plaintiff’s personal circumstances.

77. The Review Panel did in fact consider the plaintiff’s personal circumstances as they stood both at the time of the 2017 accident and the 2019 accident. As to the 2017 accident, the Review Panel reproduced the findings of Drs Barett and Baker:

“In the period before the 2017 accident, he was well and had no prior physical illness. He denied any prior psychiatric illness and specifically denied any features of post-traumatic stress disorder arising as a consequence of his experiences in Iran, the journey by boat to Australia or experience in immigration detention.

He subsequently met his wife and married in 2015. He was living with her in Brisbane, Queensland. He would help her with some of the chores. He states they had a loving happy relationship. He was working full time as a painter and in his free time enjoyed gardening, running and exercising.”

78. The Review Panel also reproduced the findings of Drs Barret and Baker as to the plaintiff’s circumstance at the time of the 2019 accident:

“In the period prior to the 2019 accident, he acknowledged, he still had pain but it was, 'a little bit better'. He was having physiotherapy and doing exercises. He estimated his pain in the pre-2019 accident period was about 8/10, on a scale of ito 10 where 10 is most severe. He reports the pain preventing him from sitting for long hours.

When asked about any psychiatric symptomatology arising from the 2017 accident, he initially denied psychiatric symptomatology, responding, 'Not really, it was more physical. The panel raised with him that this appeared inconsistent with the contemporaneous records which indicated a diagnosis of post-traumatic stress disorder had been made. He responded, 'Yes, of course'. He explained that he could not go to work, had pain, had no income, and this was causing arguments with his wife. He was in a lot of pain and was unable to sleep due to pain and as a result was, 'nervous, stressed'. He was worrying that he was so impacted at his age and worrying about what the future would hold. When asked specifically if he feared having another accident, he responded that his concerns were primarily related to his pain and his inability to work. When asked specifically if he had symptoms such as nightmares, he responded, 'Of course, because of speed car hit', 'a little bit concerned and scared. When asked if he was avoiding driving, he responded, 'mixed', 'pain mostly' and then he was worried that he, 'couldn't drive because of pain'.

He had seen a psychiatrist but he had ceased seeing the psychiatrist by the time of the 2019 accident. He stated he was using psychotropic medication, the antidepressant agomelatine. He took it for about six months but ceased because he had side effects, 'made me weak' and he therefore ceased by 2019. When asked if he was still seeing the psychologist, he responded that he was not. It was raised with him that the contemporaneous records indicated that he had seen the psychologist two months prior to the subject accident, in April 2019. He responded that he could not recall but accepted this as accurate if it was in the records.

In the period prior to the 2019 accident, he was living with his wife in Sydney. The relationship was happy and he was particularly attentive to her as she was pregnant with their son. He had returned to work because he, 'had to work — no other choice'. He could not recall when he returned to work but stated it was gradually. He had started working three days a week. He acknowledged his employer would not give him 'proper jobs' because of his unreliable attendance.”

79. Contrary to the submissions of the plaintiff, the Review Panel did not simply assess the nature of the accident and determine that it was not of the kind that could cause PTSD, but rather assessed whether in fact the plaintiff did suffer PTSD and applying its medical expertise arrived at the conclusion that he had not as he did not fulfil the DSM-5-TR criteria at the date of the assessment. The Review Panel did not simply conclude that the subject accidents were inherently of such a nature such that they could not cause PTSD. The nature of the accidents was only one factor in the comprehensive factual assessment made by the Review Panel, which included extensive medical evidence and assessment of the plaintiff’s condition at the time of the accidents. At [124] the Review Panel stated:

“[125] We note the opinion of the treating psychiatrist, Dr St George, that Mr Mahroei had a diagnosis of PTSD after the 2017 accident. The Medical Assessors conducted a thorough history of the impact of the 2017 accident at assessment and the symptoms reported were insufficient to meet the DSM-5TR diagnostic threshold for PTSD. Accordingly, we do not accept the opinion that there was an aggravation of a post-traumatic stress disorder.”

80. The result is that the Review Panel did not err by applying the wrong test in relation to causation.

81. As to whether the Review Panel provided sufficient reasons, at [65]-[85], the Review Panel set out the plaintiff’s medical history relating to both the 2017 and 2019 accident. It is as follows (citations omitted):

“[65] The claimant was involved in a prior motor accident on 17 September 2017 in a T-bone collision. Subsequent physiotherapy notes report pain in the neck, right shoulder and upper arm, right chest, lumbar spine and right thigh. On 12 December 2017 the physiotherapist noted that the clamant had returned to work on normal hours on light duties.

[66] In a report dated 9 November 2017 Dr Abboosh noted the claimant presented to the clinic on 18 September 2017 following a motor accident with multiple aches and pains in various parts of the body and complaints of being stressed and anxious with the tax of accident flashback.

[67] On 12 December 2017 Dr Eric Lim (GP) noted pain in various body parts, trouble sleeping, flashbacks, anxious and cautious to drive.

[68] On 8 May 2018 the physiotherapist noted that the neck was improving and the claimant "sleeps better when not prone".

[69] On 8 May 2018 the psychologist noted that the claimant was not able to sleep, was cautious in the car, had lost his job and income and was "feeling very sad depressed, mood is quite low".

[70] On 22 May 2018 the psychologist noted symptoms of flashback when the claimant was driving the previous day.

[71] On 26 July 2018 the psychologist noted that the claimant was blunted and depressed and diagnosed somatic symptom disorder with predominant pain and adjustment disorder with depressed and anxious mood.

[72] Dr John Davis was qualified by the claimant and provided a report dated 22 October 2018. The doctor obtained a history that the claimant had not worked since the motor accident with ongoing symptoms in the cervical and lumbar spine with radiation into the right trapezius and right lower extremity.

[73] Dr Davis diagnosed multiple disc injuries in the cervical region and disc protrusion in the lumbar spine with multilevel annular tears and an adjustment disorder. The doctor opined that the claimant was unfit to return to his preinjury duties as a painter as a combination of the physical and psychological sequelae caused by the motor accident.

[74] Dr Davis assessed whole person impairment caused by these physical injuries to the cervical and lumbar spines at 15%.

[75] On 25 October 2018 the psychologist noted symptoms of confusion, fearful and diagnosed an anxiety disorder.

[76] Dr John Bentivoglio, orthopaedic surgeon, was qualified by Suncorp Queensland and provided a report dated 28 December 2018.26 The doctor noted a history that the claimant was off work initially for about six or seven months, return to work on limited hours and ceased working about five to six months ago.

[77] Dr Bentivoglio noted that the investigations indicated discal damage with annular tears at three levels of the lumbar spine with ongoing pain and peripheral radiation down the right lower leg with ongoing pain in the neck with radiation towards the right shoulder.

[78] Dr Bentivoglio assessed impairment at 5% due to the cervical spine and 5% for the lumbar spine made a deduction of three quarters in respect of the assessment of the lumbar spine noting there was back pain for more than three months in the early part of 2017.

[79] On 28 November 2018 Dr Singh provided a quote for surgery by way of a L4/S1 decompression and fusion.

[80] On 10 January 2019 the psychologist diagnosed a somatic symptom disorder with predominant pain and an adjustment disorder with depressed and anxious mood.

[81] On 21 February 2019 the GP noted that the claimant may need further surgery and was becoming depressed.

[82] On 7 March 2019 the claimant presented to his GP with severe lower back pain and right sided Si radiculopathy. A further MRI scan was organised.

[83] On 8 March 2019 Dr Khong noted the lower back pain with right Si radiculopathy and recommended a repeat MRI scan.

[84] On 21 March 2019 the GP certified the claimant had capacity for some type of work for four hours a day, two days per week. This certification was repeated in a certificate dated 5 April 2019.

[85] On 5 April 2019 the psychologist noted depressed mood, disturbed sleep, low mood and hypervigilant.”

82. As noted above, at the medical assessment conducted by Drs Barrett and Baker, the plaintiff was questioned about the 2017 injury. The doctors reported and discussed the plaintiff’s responses (reproduced above at [79] of this judgment).

83. Later, at pages 22-23 of the Review Panel’s decision, appear Drs Barrett’s and Baker’s assessment of the plaintiff’s condition between the two accidents. At page 22, Drs Barrett and Baker conclude that the reason they have come to the opinion that the plaintiff did not suffer PTSD from the 2017 accident is because the plaintiff’s reported symptoms did not meet the symptoms necessary to establish PTSD under the DSM-5-TR (reproduced above).

84. At [124]-[128], the Review Panel explained why it rejected medical evidence to the contrary of this finding:

“[124] We consider that Dr Allen's assessment of Mr Mahroei's 2017 accident and current functioning was impacted by an inaccurate understanding of Mr Mahroei's actual 2017 accident and current circumstances. Based on information from assessment, mental state examination and the contemporaneous records of Mr Mahroei's treating doctors, the Panel has formed an alternate view to that of Dr Allen in regard to the cause of Mr Mahroei's current circumstances that were independent of the subject motor accident."

[125] We note the opinion of the treating psychiatrist, Dr St George, that Mr Mahroei had a diagnosis of PTSD after the 2017 accident. The Medical Assessors conducted a thorough history of the impact of the 2017 accident at assessment and the symptoms reported were insufficient to meet the DSM-5-TR diagnostic threshold for PTSD. Accordingly, we do not accept the opinion that there was an aggravation of a post-traumatic stress disorder.

[126] We also note the medical assessment certificate of Dr Shannon Paisley. Medical Assessor Paisley did not record Mr Mahroei's post-2017 accident psychiatric symptoms or functioning. We do not accept that the Medical Assessor established an independent diagnosis of PTSD after the 2017 accident and which his ultimate diagnosis was partly based.

[127] The Panel is reliant on the clinical expertise of the Medical Assessors who undertook the recent examination process. We have considered the parties' submissions concerning various diagnosis and the material which we have summarised earlier in these Reasons which include some doubt as to a particular diagnosis. As we noted, we are not bound by these opinions.

[128] In rejecting that the claimant has established causation of psychiatric injury, we have considered the contemporaneity of onset of psychological symptoms, the significance of the motor accident and the various clinical records. We conclude that the motor accident did not cause or aggravate a psychiatric injury, assessed in accordance with DSM-5TR.”

85. So far as the plaintiff submitted that the Review Panel provided a mere ‘ipse dixit’ is without basis. The Review Panel surveyed the range of the plaintiff’s medical history and discussed why it gave more weight to some parts of it over others or why it dismissed some accounts and dismissed others. Ultimately, it concluded that at the date the assessment was made the plaintiff’s symptoms caused by the 2017 or 2019 accident did not meet the threshold set under the DSM-5-TR.

86. The Review Panel’s reasons are sufficient to enable a judicial review and they have clearly set out the process that the Review Panel followed to arrive at its conclusions. Therefore, there is no jurisdictional error of the kind identified in Wingfoot, the Review Panel’s reasons are adequate.

87. In my view, the Review Panel in its written reasons has clearly explained the actual path of reasoning by which it arrived at the opinion it in fact formed on the medical question referred to it. Namely, to determine whether the plaintiff suffered a psychological injury caused by the motor vehicle accident which is classified as a ‘threshold injury’ within the meaning of the Act. The Review Panel’s statement of reasons explains its actual path of reasoning that enables this Court to see whether its opinion does or does not involve any error of law. It complied with its statutory task to provide sufficient reasons. Therefore, there is no jurisdictional error of the kind identified in Wingfoot.

88. Judicial review grounds three and five fail.

Judicial review ground 4

89. The fourth (and, in this judgment, final) ground of review is, in substance, that the Review Panel erred in rejecting or dismissing the plaintiff’s account of the 2019 accident. The plaintiff reported to Doctors Barrett and Baker that at the moment of collision in the 2019 accident he was ‘so scared’, ‘very very nervous’ and that he ‘felt like [he] was going to die’. When he was asked why he felt that he was going to die, the plaintiff reported that it was because of the sound of the ‘breaking of glass’. Drs Barrett and Baker put it to him that there were no windows broken in the accident, the Doctors then concluded:

“There were a number of inconsistencies at assessment. [The plaintiff’s] description of the subject accident in 2019 was inconsistent with that recorded by the police. When this was raised with him, he maintained the accuracy of his description. Further the panel considered [the plaintiff’s] assertion that he felt he was going to die was inconsistent with the nature of the subject accident and when asked to explain his reasons, hearing breaking glass, was inconsistent with the police records of the accident.”

90. This ground of review as articulated in the summons also incorporates elements raised in the other grounds of review, the only independent matter relates to the issue of the breaking glass.

The plaintiff’s submissions

91. The plaintiff says that the absence of broken windows was determinative of the question of whether or not to accept the plaintiff’s account. It draws attention to the fact that the Review Panel failed to acknowledge and give weight to the fact that head- and taillights were broken in the collision. The plaintiff continued:

“In that sense, there was no evidence to support the rejection of the [p]laintiff’s account on that basis and the Review Panel was in error in proceeding on that basis.”

92. In support of that proposition, he cites Insurance Limited t/as NRMA Insurance v Duc Thuong Le [2024] NSWSC 1022 (Le). In that case, one of the grounds on which the insurer challenged the decision of a review panel constituted under the Act was that a factual finding it made was illegal because there was no evidence to logically support that finding. At [66]-[70] Price AJA stated:

“[66] It is well-established that factual findings must be supported by logically probative evidence. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, Deane J said at 367:

When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

[67] As Schmidt AJ observed in Richards at [121]-[122], there must be a factual basis for findings and they cannot rest “simply on a consideration of possibilities”.

[68] The plaintiff correctly submitted the test is not whether there was any evidence at all, but rather whether there was no evidence that ought reasonably to satisfy the decision maker that the fact sought to be proved is established: Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 per McHugh J at [39]; Origin Energy LPG Ltd v Bestcare Foods Ltd [2013] NSWCA 90 per Ward JA at [88]-[90].

[69] Before reaching its decision, the review panel was obliged to consider all of the evidence which included Constable Giblin’s statement of the defendant hitting his head on the ground which was done at least a dozen times and that the Constable did not see any visible head injuries prior to that happening. There was also the evidence of the defendant wearing a seat belt at the time of the collision and being under the influence of drugs.

[70] The weight to be given to Constable Giblin’s statement was a matter for the review panel, which was not required to state what it made of that evidence: Wingfoot at [47].

The insurer’s submissions

93. The insurer submitted that the Review Panel did not treat the absence of broken glass as determinative. It says that a fair reading of the Review Panel’s decision proves this: ‘[t]here was evidence available to the Review Panel to support the conclusion it has reached and the [p]laintiff’s complaint effectively amounts to impermissible merits review.’

Resolution

94. As Price AJA stated in Le at [69], ‘before reaching its decision, the review panel was obliged to consider all of the evidence’; ‘[a]ny factual findings must be supported by logically probative evidence’. Although it is not explicitly stated, it is clear that the Review Panel did not accept that the plaintiff heard breaking glass. In my view, the reason that the Review Panel did not accept the plaintiff’s account in this regard is that it failed to turn its mind to the fact that the sound of breaking glass could have been caused by breaking tail- and headlights – broken headlight plastic is mentioned in the investigative report.

95. In failing to turn its mind to this matter, the Review Panel failed in its obligation ‘to consider all of the evidence’. The implicit factual finding that the plaintiff’s account of hearing broken glass was unreliable, was, therefore, not supported ‘by logically probative evidence’.

96. The plaintiff’s proposition that this was determinative or that it caused the Review Panel to reject the plaintiff’s account entirely is rejected. The Review Panel’s decision was based on much more than the breaking lights: it included an actual assessment of the plaintiff; a review of his medical history; an assessment of the objective potential of such a crash to cause PTSD; and an assessment of whether, in fact, it did cause PTSD.

97. Whatever balance of judicial review ground four remains is no more than a merits review, not a judicial review. As the Review Panel stated, the at-fault driver stated she could not stop in time and there was a rear end collision. When this inconsistency was raised with the plaintiff, he maintained that the driver's narrative was incorrect. He was wearing a seat belt and was pushed forward but no airbags deployed. He was, 'so scared', 'very very nervous', 'felt like [he] was going to die’. He was asked why he interpreted the accident as one in which he was at risk of dying, he responded, that it was due to the noise he heard of breaking of glass'. It was raised with him that there were no windows broken in the accident and he responded, 'could have been any sound'. He states he thought it was third unlucky'. It was raised with him that this was apparently only his second accident and he did not respond.

98. There was sufficient evidence to support the decisions made by the Review Panel, including extensive medical evidence and an interview of the plaintiff.

99. Judicial review ground four fails.

The result

100. The plaintiff’s application for judicial review fails.

Costs

101. Costs follow the event. The plaintiff is to pay the first defendant’s costs

The Court orders that:

1. The plaintiff’s summons filed 21 August 2024 is dismissed.
2. The plaintiff is to pay the first defendant’s costs.

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