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[2025] NSWSC 1308
General information, not legal advice.
Supreme Court of NSW
2025-11-06
Free JA
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Reid v AAI Limited t/as GIO [2025] NSWSC 1308
Hearing dates: 22 October 2025
Date of orders: 06 November 2025
Decision date: 06 November 2025
Jurisdiction: Common Law
Before: Free JA
Decision: (1) Summons dismissed.
(2) The plaintiff is to pay the first defendant’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – review of decision by review panel constituted for review under Motor Accidents Compensation Act 1999 (NSW) – where plaintiff injured in motor vehicle accident – psychological injury – whether review panel failed to provide reasons in applying the Psychiatric Impairment Rating Scale – whether review panel’s path of reasoning is sufficiently exposed on a fair reading of the reasons – whether review panel failed to conduct the medical assessment in accordance with the Motor Accident Permanent Impairment Guidelines
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 57, 58, 60, 61, 62, 63, 131, 132, 133, Pts 3.4, 5.3
Personal Injury Commission Act 2020 (NSW)
Workplace Injury Management Workers Compensation Act 1998 (NSW)
Cases Cited: Allianz Australia Insurance Ltd t/as Allianz v Susak [2025] NSWCA 91
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22
Della Bruna v Health Care Complaints Commission [2025] NSWCA 105
Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39
Garcia v Motor Accidents Authority [2009] NSWSC 1056; (2009) 54 MVR 102
Georges v Musico [2025] NSWSC 1085
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152
Politis v Commissioner of Taxation (1988) 20 ATR 108; [1988] FCA 739
Rose v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 134
Sadsad v NRMA Insurance [2014] NSWSC 1216; (2014) 67 MVR 601
Saville v Health Care Complaints Commission [2006] NSWCA 298
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1
Texts Cited: American Medical Association, Guides to the Evaluation of Permanent Impairment (AMA4) (4th ed, 1995)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2022)
Motor Accident Permanent Impairment Guidelines (version 1), cll 1.2, 1.3, 1.18, 1.201, 1.202, 1.203, 1.204, 1.205, 1.206, 1.207, 1.208, 1.209, 1.210, 1.211, 1.212, 1.213, 1.217, 1.218, 1.219, 1.220, 1.221, 1.222, 1.223, 1.224
Category: Principal judgment
Parties: Leah Reid (Plaintiff)
AAI Limited t/as GIO (First Defendant)
Member Maurice Castagnet, Medical Assessors Michael Hong and John Baker as a Review Panel constituted under section 63 of the Motor Accidents Compensation Act 1999 (NSW) (Second Defendant) (submitting appearance)
President of the Personal Injury Commission of New South Wales (Third Defendant) (submitting appearance)
Representation: Counsel:
J Gumbert / D Kim (Plaintiff)
M Robinson SC / A Poljak (First Defendant)
Solicitors:
Masselos & Co Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor for NSW (Second and Third Defendants)
File Number(s): 2025/176864
Publication restriction: Nil
Section 131 of the MAC Act provides that no damages for non-economic loss may be awarded unless the degree of permanent impairment of the injured person as a result of the injury caused by the accident is greater than 10%. The first defendant, being the relevant insurer in respect of the claim, denied that the plaintiff’s impairment resulting from her psychological injury caused by the accident exceeded that threshold. A disagreement of this kind is, for the purposes of the MAC Act, a “medical dispute” about a “medical assessment matter” that may be referred to the Personal Injury Commission (PIC) for assessment: ss 57, 58(1)(d). Where there is such a dispute, damages may not be awarded for non-economic loss unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 of the MAC Act: s 132. The plaintiff engaged this procedure by making an application to the PIC for a medical assessment under s 60 of the MAC Act.
Medical assessors are appointed under the Personal Injury Commission Act 2020 (NSW) (PIC Act) to assess medical disputes. Where a dispute is referred to an assessor, the assessor must conduct an assessment and issue a certificate: s 61 of the MAC Act. Certificates are required to contain reasons: s 61(9). There is provision for more than one assessment to be made in respect of a disputed matter. A matter may be referred for further assessment on the grounds of the deterioration of an injury or additional relevant information about the injury becoming available: s 62 of the MAC Act.
After a certificate has been issued by a medical assessor, the medical assessment may be referred to a review panel for review following an application to the President of the PIC by a party to the medical dispute. Such an application may only be made on the grounds that the assessment is incorrect in a material respect: s 63(2) of the MAC Act. The President may refer the matter only if 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: s 63(2B). A review panel is constituted by the persons chosen by the President, comprising two medical assessors and a member of the PIC assigned to the Motor Accidents Division: s 63(3).
Although styled as a “review” and notwithstanding the form of application for referral, in fact a review panel is required to undertake a new assessment of all the matters with which the medical assessment is concerned: s 63(3A) of the MAC Act. “[I]n truth the panel is determining afresh the medical assessment matters referred to it”: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [9]. The role of the review panel was recently explained in [2025] NSWCA 91 at [78] per Adamson JA (Payne and Stern JJA agreeing):
The Act provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: Wingfoot at [47].
Her Honour’s analysis in this regard draws on the consideration by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) of the function of a Medical Panel in conducting review under an analogous scheme in Victorian legislation. That function was described as being in every case for the Panel 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”: [47].
At the conclusion of the review, the review panel may confirm the original certificate or revoke it and issue a new certificate as to the matters concerned: s 63(4).
The medical dispute as to the degree of permanent impairment of the plaintiff arising from her psychiatric injuries was first assessed by a medical assessor, Angelo Virgona, on 19 December 2018. The assessment, certified on 23 January 2019, was that as a result of the accident the plaintiff sustained chronic post-traumatic stress disorder with secondary depression, giving rise to permanent impairment of 8%.
In January 2023 the plaintiff applied to the PIC for a further medical assessment pursuant to s 62 of the MAC Act. That application was accepted and referred to a medical assessor, Assessor Chew. On 8 June 2023 Assessor Chew made a determination that the impairment of the plaintiff was not permanent and in those circumstances he declined to make an assessment of whole of person impairment. This was a course available under s 132(3) of the MAC Act. Assessor Chew later re-assessed the plaintiff. He issued a certificate on 1 February 2024, determining that the plaintiff had, as a result of the accident, suffered post-traumatic stress disorder giving rise to whole of person impairment of 19%.
The first defendant sought a review of the decision of Assessor Chew under s 63 of the MAC Act. That led to the delegate of the President of the PIC referring the medical assessment to a review panel for review. The review panel constituted to review the plaintiff’s matter was comprised of Assessor Baker, Assessor Hong and Member Castagnet. Assessors Baker and Hong are both psychiatrists.
The first defendant and the plaintiff each provided evidence and made submissions to the review panel about the matter. The plaintiff was examined by Assessor Baker and Assessor Hong by video conference. The review panel also had the benefit of documents that had been generated at earlier points in the medical dispute process, including the certificates and associated reasons of Assessor Virgona and Assessor Chew.
On 18 February 2025 the review panel revoked the certificate issued by Assessor Chew and issued a new certificate to the effect that the plaintiff’s whole person impairment is not greater than 10%.
The plaintiff filed a summons on 8 May 2025 seeking judicial review of the decision of the review panel of 18 February 2025. The plaintiff seeks an order in the nature of certiorari setting aside the decision and certificate of the review panel, or alternatively a declaration to that effect. The plaintiff seeks an order in the nature of mandamus remitting the medical assessment to the President of the PIC for reallocation of the matter to a differently constituted review panel for determination of the matter according to law.
Following the hearing the parties filed supplementary submissions addressed to the question of whether relief in these terms would be appropriate, if error is found as alleged by the plaintiff. It was common ground that, in light of Wingfoot, a failure to provide reasons constitutes an error of law on the face of the record that would warrant an order setting aside the purported decision of the review panel. Those further submissions also addressed the question of whether it would be appropriate, in the event of an order that the matter be remitted for reassessment, to also order that such a reassessment be carried out by a differently constituted review panel. While acknowledging that orders of this kind are not uncommon, the first defendant submitted that this would not be necessary in the circumstances of the present case as the interests of justice did not require such an order. The plaintiff submitted that such order should be made, referring (among other authorities) to the decision of Chen J in Insurance Australia Limited t/as NRMA Insurance v Trkulja [2023] NSWSC 956 where his Honour held, at [116], that the interests of justice favoured that result, given the need to preserve the appearance of impartial justice and the likelihood that the previous review panel would be unable to approach the medical dispute “entirely afresh”.
The summons also seeks, to the extent necessary, an interim order, prohibition or interlocutory injunction preventing the defendants from taking steps in reliance on the review panel’s decision pending final determination of the proceedings. However, there was no suggestion in the submissions of either party that an order of this kind has proved to be necessary in the circumstances that have arisen.
The first defendant has taken an active role in the proceedings and opposes the relief sought. The review panel, which is the second defendant to the proceedings, has filed a submitting appearance. So too has the President of the PIC, who is the third defendant.
The plaintiff advances two grounds of review. The first is that the review panel failed to provide reasons for its decision, despite being obliged to do so. This ground of review focuses on the conclusions of the review panel on two particular aspects of the decision, being the application of the Psychiatric Impairment Rating Scale (PIRS) in relation to the categories of functioning described as “social and recreational activities” and “concentration, persistence and pace”. The review panel assessed the plaintiff as having a class 2 impairment in respect of each of these categories. Ground 1 of the judicial review application alleges that the review panel failed to provide reasons for its conclusions in this regard.
The assessment of the degree of permanent impairment of an injured person as a result of an injury caused by a motor accident is required to be expressed as a percentage in accordance with Part 5.3 of the MAC Act: s 133(1). In circumstances where the Guidelines have been issued for the purposes of such assessments, the assessment of the degree of permanent impairment must be made “in accordance with” those guidelines: s 133(2). The relevant version of the Guidelines which has been issued for these purposes is version 1, which took effect from 1 June 2018. This version applies in respect of motor vehicle accidents that occurred between 5 October 1999 and 30 November 2017: cl 1.3.
Clause 1.2 of the Guidelines explains that the guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (1995) (AMA4 Guides), although the Guidelines involve “some very significant departures from that document”. Clause 1.2 further provides that a medical assessor undertaking a medical assessment for the purposes of the MAC Act must read the Guidelines in conjunction with the AMA4 Guides. The Guidelines are said to be “definitive with regard to the matters they address”, but where the Guidelines are silent on an issue the AMA4 Guides should be followed. Neither party in the present matter suggested that the AMA4 Guides assist in the resolution of the particular issues arising from the grounds of review.
Clause 1.18 describes the three stages that are involved in an assessment of the degree of permanent impairment arising from an injury caused by an accident:
An assessment of the degree of permanent impairment involves three stages:
1.18.1 a review and evaluation of all the available evidence including:
• medical evidence (doctors’, hospitals’ and other health practitioners’ notes, records and reports)
• medico-legal reports
• diagnostic findings
• other relevant evidence
1.18.2 an interview and a clinical examination, wherever possible, to obtain the information specified in these Guidelines and the AMA4 Guides necessary to determine the percentage impairment, and
1.18.3 the preparation of a certificate using the methods specified in these Guidelines that determines the percentage of permanent impairment, including the calculations and reasoning on which the determination is based. The applicable parts of these Guidelines and the AMA4 Guides should be referenced.
The assessment of mental and behavioural disorders is dealt with from cl 1.201 of the Guidelines. The Guidelines state that psychiatric disorders have “complex effects on the individual, and impairment must be assessed by a psychiatrist”: cl 1.201. They further state that “[m]edically determinable impairments in thinking, affect, intelligence, perception, judgement and behaviour are difficult to translate into functional limitations”: cl 1.202.
The methodology adopted in the Guidelines to address this difficult exercise involves the application of the PIRS. This is explained in the following section of the Guidelines:
1.203 The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA4 Guides (pages 291–302) is to be used for background or reference only.
1.204 The PIRS draws heavily on Chapter 14 of the AMA4 Guides.
1.205 The AMA4 Guides provide a framework to determine whether a motor accident has caused psychiatric impairment. They bridge the gap between impairment and disability by focusing on four areas or aspects of functioning:
1.205.1 activities of daily living (ADL). Three aspects of ADL are used in the PIRS system
1.205.2 social functioning
1.205.3 concentration, persistence and pace
1.205.4 adaptation.
1.206 These areas are described in detail on pages 294–295 of the AMA4 Guides.
1.207 Activities of daily living include self-care, personal hygiene, communication, ambulation, travel and social and recreational activities.
1.208 Social functioning refers to the capacity to get along with others and communicate effectively.
1.209 Concentration, persistence and pace is defined as the ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings.
1.210 Adaptation (also called deterioration or de-compensation in work or work-like settings) refers to the repeated failure to adapt to stressful circumstances.
1.211 Impairment is divided into five classes ranging from no impairment to extreme impairment.
1.212 Mental and behavioural disorders resulting from an organic brain injury are most suitably assessed as an organic problem under clause 1.156 to 1.176 in these Guidelines.”
An impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM**-5**) or the current edition of the International Statistical Classification of Diseases & Related Health Problems: cl 1.213.
Clause 1.217 is significant. It provides that the psychiatrist’s clinical judgment “is the most important tool in the application of the [PIRS]. The impairment rating must be consistent with a recognised psychiatric diagnosis, and based on the psychiatrist’s clinical experience”.
In the case of an injured person with a pre-existing psychiatric disorder or diagnosable condition, in order to isolate and measure the degree of impairment caused by a specific event the medical assessor must estimate the overall pre-existing impairment using the method set out in this part of the Guidelines, and subtract this value from the current impairment rating: cl 1.218.
The PIRS is explained and set out in cll 1.219-1.224. The scale allows for the assessment of the behavioural consequences of psychiatric disorders on six areas of function. The reason there are six areas of function, rather than only four as suggested in cl 1.205, is that “activities of daily living” is split into three separate aspects, namely “self-care and personal hygiene”, “social and recreational activities” and “travel”. The remaining areas of function are “social functioning”, “concentration, persistence and pace” and “adaptation”. The scale provides for an evaluation of functional impairment in respect of each of those areas.
The method for measuring impairment in each area of function is explained in cl 1.220:
Impairment in each area of function is rated using class descriptors. Classes range from 1 to 5 according to severity. The standard form (Figure 2) must be used when scoring the PIRS. The classes in each area of function are described through the use of common examples. These are intended to be illustrative rather than literal criteria. The medical assessor should obtain a history of the injured person’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The medical assessor should take into account variations in lifestyle due to age, gender, cultural, economic, educational and other factors.
Adjustments may be made to account for the effects of prescribed treatment, pursuant to cll 1.222-1.224.
The Guidelines contain six tables, corresponding to the six areas of function. Having regard to the issues in the present matter it is convenient and sufficient to set out the tables that relate to “social and recreational activities” and “concentration, persistence and pace”:
Table 12: Psychiatric impairment rating scale (PIRS)
| Social and recreational activities | | Class 1 | No deficit or minor deficit attributable to normal variation in the general population. Able to go out regularly to cinemas, restaurants or other recreational venues. Belongs to clubs or associations and is actively involved with these. | | Class 2 | Mild impairment. Able to occasionally go out to social events without needing a support person, but does not become actively involved; for example, in dancing, cheering favourite team. | | Class 3 | Moderate impairment. Rarely goes to social events, and mostly when prompted by family or close friend. Unable to go out without a support person. Not actively involved, remains quiet and withdrawn. | | Class 4 | Severe impairment. Never leaves place of residence. Tolerates the company of family member or close friend, but will go to a different room or the garden when others visit family or flatmate. | | Class 5 | Totally impaired. Cannot tolerate living with anybody, extremely uncomfortable when visited by close family member. |
Table 15: Psychiatric impairment rating scale (PIRS)
| Concentration, persistence and pace | | Class 1 | No deficit, or minor deficit attributable to normal variation in the general population. Able to operate at previous educational level; for example, pass a TAFE or university course within normal timeframe. | | Class 2 | Mild impairment. Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for up to 30 minutes; for example, then feels fatigued or develops headache. | | Class 3 | Moderate impairment. Unable to read more than newspaper articles. Finds it difficult to follow complex instructions; for example, operating manuals, building plans, make significant repairs to motor vehicle, type detailed documents, follow a pattern for making clothes, tapestry or knitting. | | Class 4 | Severe impairment. Can only read a few lines before losing concentration. Difficulties following simple instructions. Concentration deficits obvious even during brief conversation. Unable to live alone, or needs regular assistance from relatives or community services. | | Class 5 | Totally impaired. Needs constant supervision and assistance within an institutional setting. |
The certificate issued by the review panel on 18 February 2025 contains a statement of reasons. The reasons record that the review panel considered all the documents that were before it, and that to the extent the reasons refer to particular evidence that was the evidence that the review panel considered to be of most significance to the matters under review.
The reasons note that the further medical assessment had arisen in circumstances where there was a deterioration of the plaintiff’s psychiatric condition since the original assessment in 2018. There was a dispute before the review panel about whether that deterioration was causally related to the accident. After referring in detail to the records of a number of psychiatric assessments of the plaintiff over a number of years, the review panel concluded that the psychological injury suffered by the plaintiff was caused by the motor accident.
In terms of a diagnosis, the review panel found that the plaintiff’s current symptoms were most consistent with DSM-5 major depressive disorder of mild severity. The review panel made the following findings about the condition of the plaintiff informing this diagnosis:
(a) depressed mood most of the day come and nearly every day as indicated by the claimant’s report of feeling sad and hopeless most days since the motor accident. She said that she felt sad and hopeless as she was unable to recover and return to her career and lifestyle she had prior to the motor accident;
(b) insomnia nearly every day, she said she would experience poor sleep and dreams that were disturbing to her about the motor accident;
(c) psychomotor agitation nearly every day, as reported by the claimant with her suffering subjective feelings of persistent restlessness and irritability;
(d) fatigue and loss of energy nearly everyday. This is evidenced by the claimant’s inability to perform morning shift due to her low energy each morning causing her attendance at morning shift to become less since the motor accident, and
(e) diminished ability to think or concentrate, as reported by the claimant with her decreased ability to read for extended periods which she could have done and continued to progress with her career.
The presence of these symptoms satisfied criterion A of the definition of major depressive disorder of mild severity according to DSM-5. Criterion B (the symptoms cause clinically significant distress or impairment in social, occupational or other areas of functioning) was also found to be satisfied. This was because, the review panel found, “Criterion B is evidenced by the claimant remaining significantly clinically depressed with inability to socialise with her husband and eldest son, as well as inability to return to her prior occupation”.
The review panel set out a number of findings about the presentation and condition of the plaintiff in her mental state examination. The plaintiff reported that “her rate of thinking was reduced with her making more unintended errors than she previously would have prior to the onset of this psychological injury”. The observations of the review panel include the following:
- The claimant was oriented in time, place, and person. Her concentration during the assessment was reduced. She would have intrusive depressive thoughts that slowed her pace of thinking. She would cry throughout the assessment whilst talking about her nursing career and reasons for stopping work. She would wander off topic and required prompting to remain on task.
90. The claimant was independent in herself-care [sic] and personal hygiene. She said she would prefer to wash by use of a cloth washer and basin. The claimant did cook and prepare food. She had lost interest in her grooming. She was able to attend the local shop and purchase food for her, her husband and her son. She was able to contribute to the maintenance of the home and care of her son’s daily needs. She said was actively managing her nutrition. She was assessed as having a mild impairment, Class 2 for self-care and personal hygiene.
91. The claimant reported that she would purchase Christmas and birthday gifts for her 7-year-old soon [sic]. She said she would prepare a cake for his birthday. She would not participate in wedding anniversaries or home entertainment. She said that she would not draw as she had prior to the motor accident. She reported she spent time playing simple games such as candy crush after dinner. She did not share entertainment events with her husband and had lost interest in following serial television events. She was assessed as having a mild impairment, Class 2 for social and recreational functioning.
92. The claimant reported that she was able to travel without a support person and to walk outside her family home without support. She would usually travel with her husband. He would usually drive their son to school. He would also usually driver her to the shops. She did not travel to unfamiliar locations alone. She was assessed as having a mild impairment, Class 2 for travel.
93. The claimant reported that her relationship with her husband was strained. She reported that she was not expecting to become divorced or separated. She said she did not experience domestic violence within the home. The claimant reported warm and affectionate feelings towards her 7-year-old son. She said she also was able to sustain her relationship with her eldest son.
94. The claimant said the separation between her and her daughter was not related to the motor accident and was between her and her husband. She said as a consequence of the AVO against her husband, she was estranged from her daughter. She was assessed as having a mild impairment, Class 2 for social functioning.
95. The claimant reported that she had lost interest in reading and did not read more than a few lines of text from snippets on her mobile phone. She could cook. She did participate in drawing or hobbies. Her concentration during the assessment was reduced. She would have intrusive depressive thoughts that slowed her pace of thinking. She would cry throughout the assessment whilst talking about the changes in her lifestyle since the motor accident. She was assessed as having a mild impairment, Class 2 for concentration, persistence, and pace.
96. The claimant was able to work less than 20 hours per week in a different role in a different and less stressful environment for a different employer after the motor accident. The role would be less stressful and less demanding than prior roles.
97. The claimant had deteriorated in her physical condition as noted by her GPs. The claimant had documented that she suffered from Trigeminal Neuralgia and she had been treated for this painful condition with carbamazepine, a known treatment for this painful condition. Pain and physical conditions have not been included in the assessment of the claimant’s adaptation assessment in compliance with the Guidelines:
• 6.214 Impairment due to physical injury is assessed using different criteria outlined in other parts of these Guidelines, and
• 6.215 The PIRS must not be used to measure impairment due to somatoform disorders or pain.
98. For the above reasons she was assessed as having a moderate impairment, Class 3 for adaptation.
Under the heading “Comments on consistency” the review panel found that the claimant’s presentation was consistent with prior presentations to other independent psychiatric assessors and medicolegal consultants. This confirms, as would otherwise be inferred from other references in the reasons and from the context of the assessment process, that the review panel familiarised itself with, and took into account, the claimant’s medical and assessment history as recorded in the evidence before the review panel.
As noted in the passage extracted above, the Guidelines expressly require that when “scoring the PIRS”, the standard form must be used. The standard form appears in Figure 2 in the Guidelines. Figure 2 is a blank assessment form adapted for the application of the PIRS. It includes the following section:
| Category | Class | Reason for decision | | Self-care and personal hygiene | | | | Social and recreational activities | | | | Travel | | | | Social functioning | | | | Concentration, persistence and pace | | | | Adaptation | | |
| Category | Class | Reason for decision | | 1. Self-care and personal hygiene | 2 | The claimant was independent in herself-care and personal hygiene. She said she would prefer to wash by use of a cloth washer and basin. The claimant did cook and prepare food. She had lost interest in her deportment and grooming. She was able to attend the local and purchase food for her, her husband and her son. She was able to contribute to the maintenance of the home and care of her son’s daily needs. She said was actively managing her nutrition. | | 2. Social and recreational activities | 2 | The claimant reported that she would purchase Christmas and Birthday gifts for her 7-year-old soon [sic]. She said she would prepare a cake for his birthday. She would not participate in wedding anniversaries or home entertainment. She said that she would not draw as she had prior to the motor accident. She reported she spent time playing simple games such as candy crush after dinner. She did not share entertainment events with her husband and had lost interest in following serial television events. | | 3. Travel | 2 | The claimant reported that she was able to travel without a support person and to walk outside her family home without support. She would usually travel with her husband. He would usually drive their son to school. He would also usually driver her to the shops. She did not travel to unfamiliar locations alone. | | 4. Social functioning | 2 | The claimant reported that her relationship with her husband was strained. She reported that she was not expecting to become divorced or separated. She said she did not experience domestic violence within the home. The claimant reported warm and affectionate feelings towards her 7-year-old son. She said she also was able to sustain her relationship with her eldest son. | | 5. Concentration, persistence and pace | 2 | The claimant reported that she had lost interest in reading and did not read more than a few lines of text from snippets on her mobile phone. She could cook. She did not participate in drawing. Her concentration during the assessment was reduced. She would have intrusive depressive thoughts that slowed her pace of thinking. She would cry throughout the assessment whilst talking about the changes in her lifestyle since the motor accident. | | 6. Adaptation | 3 | The claimant was able to work less than 20 hours per week in a different role in a different and less stressful environment for a different employer after the motor accident. The role would be less stressful and less demanding than prior roles. |
As is apparent when comparing this table with the passage from the review panel’s reasons extracted above at [37], the table largely reproduces the reasons and corresponding conclusions already expressed by the review panel under the heading “Current functioning”. There are some minor and immaterial variations, but there is at least one variation of more significance. Paragraph 95 of the reasons, which culminates in the statement that the plaintiff was rated as class 2 for concentration, persistence and pace, includes the sentence “[s]he did participate in drawing or hobbies”. By contrast, in the relevant row of the table the reasons state “[s]he did not participate in drawing”.
Reading the reasons as a whole, I am satisfied that there must be an error in the statement of reasons at [95], in that the word “not” has been mistakenly omitted. That is consistent with [91], where in relation to social and recreational functioning the review panel concluded that the claimant “would not draw as she had prior to the motor accident”. It is also consistent with the review panel’s finding that before the relevant psychological impairment the claimant enjoyed drawing. In other words, the topic of drawing was the subject of a specific finding because the applicant no longer participated in an activity that she used to enjoy. Reading in the word “not” also tends to fit more comfortably with the way the sentence is expressed in [95]. For the review panel to say that the claimant “did participate in drawing or hobbies” is an odd way of expressing a positive finding about the claimant’s ability to concentrate and engage in recreation, particularly in circumstances where there is no indication in the reasons of the “hobbies” that the claimant participated in. The expression is more natural if the point that the review panel intended to convey was that the claimant did not participate in drawing or hobbies.
This slip in the expression of the review panel’s findings does not indicate legal error, including because of a failure to provide reasons. As explained below, the reasons of a decision-maker are not to be read with an eye finely attuned to error and it is legitimate to draw reasonable inferences where there are gaps or slips of this kind.
The review panel also considered the extent of the pre-existing impairment of the plaintiff, associated with the diagnosis of “DSM-5 … Opioid Use Disorder in sustained remission”. Consistent with the approach required by the Guidelines, the review panel scored the pre-existing impairment using the PIRS. This resulted in the following conclusions and reasoning:
| Category | Class | Reason for decision | | 1. Self-care and personal hygiene | 1 | The claimant was independent in her selfcare and personal hygiene. She was able to sustain her independent lifestyle without assistance prior to the motor accident. | | 2. Social and recreational activities | 1 | The claimant was able to socialise with her friends, family and extended family. She enjoyed nature walks, drawing and socialising with her friends. She would attend special events when invited by her friendship circle. | | 3. Travel | 1 | The claimant could drive and attend her university, employment sites and other locations as needed without impairment prior to the motor accident. She was able to travel to unfamiliar locations alone. | | 4. Social functioning | 1 | The claimant was able to socialise with other members of her family as well as her friendship circle. The claimant reported she was in the relationship with her current husband prior to the motor accident. | | 5. Concentration, persistence and pace | 1 | The claimant had completed a Bachelor of Nursing prior to the motor accident. | | 6. Adaptation | 1 | The claimant reported that she was working as a registered nurse prior to the motor accident. She had been in sustained remission of opioid use disorder. |
The ultimate conclusion of the review panel was that the degree of permanent impairment of the plaintiff as a result of the psychological injury caused by the motor accident is 7%. The certificate of Assessor Chew of 1 February 2024 was revoked and replaced with a new certificate reflecting the different conclusions of the review panel.
This involved the application of a mathematical formula using the PIRS. The plaintiff submits that because of the process of calculation required under the Guidelines she needed to be assessed as having class 3 impairment (or higher) in at least three categories of functioning in order to reach an overall result of over 10% whole person impairment. The review panel found that the plaintiff had class 2 impairment in five categories, and class 3 impairment in the remaining category.
There is also no relevant dispute between the parties about the content of an obligation to provide reasons or the principles to be applied in determining whether the review panel did or did not perform its obligation to provide reasons, although the parties seek to emphasise different aspects of those principles in support of their respective positions.
In Wingfoot at [43] the High Court emphasised the primacy of the statute in understanding the extent of any obligation to provide reasons. There is no free-standing common law duty to give reasons for the making of a decision under statute. To the extent that there is a statutory requirement imposed to provide reasons, the duty is no more and no less than the duty created by the statute in that regard. “The content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it”: [43]. In any given case it is a question of statutory construction and considerations of context may mean that there are significant variations between what is required in one statutory setting as compared with another: [44]-[45].
As noted above, Wingfoot was concerned with the obligations of the Medical Panel, which was in an equivalent position to the review panel under the analogous Victorian legislation. Similarly to the review panel, the Medical Panel was required to set out a statement of reasons to accompany the certificate as to its opinion.
The underlying purpose of a statement of reasons in this statutory context is to enable a court to see whether the decision does or does not involve any error of law: [49], [54]. That in turn informs the content of the obligation to provide reasons. To require reasons that achieve more than this “would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain”: [54]. The standard required of the Medical Panel in Wingfoot was described as follows:
[55] The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.
The High Court proceeded to state at [56] that in explaining the path of reasoning by which it arrived at the opinion it formed a Medical Panel “is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else”.
To the extent that there is a gap in the reasons expressed by a decision-maker, if the gap can be filled by drawing a necessary inference from a fair reading of the reasons that are expressed, that is legitimate: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 (Zahed) at [6]. The ultimate question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a “beneficial construction” as required in light of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 271-2; [1996] HCA 6. The plurality said in Wu Shan Liang at 272:
It was said [in Collector of Customs v Pozzolanic Enterprises Pty Ltd] that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (citations and footnotes omitted)
Kirby J at 291 held that reasons “must be read as a whole” and “considered fairly”.
In New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Bell P (with whom Ward JA agreed) summarised the principles relevant to determining whether adequate reasoning has been provided in any given case. This includes, at [77], that the reasons must be read fairly and as a whole and the court should not read passages from the reasons for decision in isolation from others to which they may be related (citing Politis v Commissioner of Taxation (1988) 20 ATR 108; [1988] FCA 739 at [14]). There should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal’s thoughts or verbal slips.
In Zahed Leeming JA at [4] referred with approval to the judgment of Basten JA in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 (Kerr) at [53]-[59] as supporting the proposition that the nature of a medical assessor’s task may mean that “aspects are insusceptible of any detailed articulation of reasons”. In Kerr Basten JA at [58] considered the “inherent imprecision in assessing the value of future economic loss suffered by relatives in a fatal accident case”. His Honour referred to his earlier statement in Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52] (with which Handley and Tobias JJA agreed) that “matters of evaluation and judgment are not readily explained in rational terms”.
In Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 Basten JA addressed a submission that in applying the PIRS the relevant Appeal Panel was required to “consider how the core applicable elements of the exemplar class descriptions were material to the facts of the dispute between the parties, and then those facts needed to be scrutinised, with specificity, to ascertain the correct class rating”: [76]. His Honour, at [78], held that to the extent the submission suggested that the reasons of the Appeal Panel needed to demonstrate a particular level of scrutiny and degree of specificity with which the facts were scrutinised, that submission was rejected. Such an approach was inconsistent with the obligation to give reasons as described in Wingfoot and also invites a merit review of factual findings with no attempt to identify an error of law on the face of the record.
While there is some scope for the drawing of inferences, it is not appropriate to assume that the decision was made according to law, as a basis for then drawing inferences as to how gaps in the reasoning ought be filled: Sadsad v NRMA Insurance [2014] NSWSC 1216; (2014) 67 MVR 601 at [47]. Nor does a beneficial approach to the construction of reasons involve a requirement that any ambiguity be resolved in favour of the decision-maker: [2025] NSWCA 105 () at [15]. In Bell CJ and Kirk JA held:
[16] The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making due allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.
When it comes to the reasons of an assessor or review panel regarding the PIRS, one relevant feature of the statutory context is that the Guidelines require that the standard form be used to record the scoring of the PIRS. The standard form, reproduced above, contains a column for the recording of “reasons” corresponding to each area of functioning. That tends to provide some contextual support for a conclusion that the reasons in this regard do not need to be lengthy and elaborate in order to meet the standard required by the Guidelines and the MAC Act.
However, that observation is ultimately not of great interpretative significance. As the plaintiff correctly submitted, the standard form is not prescriptive as to how much detail is recorded in each box, such that it cannot be assumed that reasons were necessarily intended to be always brief. More broadly, the substance of the obligation remains that described in Wingfoot, namely an explanation of the actual path of reasoning which gives sufficient detail to enable a court to see whether or not the review panel erred in law. A statement of reasoning need not be lengthy or elaborate in order to satisfy the standard, if it is properly directed to the task at hand.
The first defendant emphasised that it is important not to read the contents of the completed form, which forms part of the reasons, in isolation from the balance of the reasons given by the review panel. I did not understand the plaintiff to submit to the contrary. In any case, I accept the submission. Consistent with the principles set out above, the review panel’s reasons must be read as a whole and in testing an allegation that the review panel’s actual path of reasoning has not been exposed the Court must consider all of the relevant references in the reasons, wherever they may appear, and assess their combined significance.
The plaintiff complains that the review panel failed to expose its actual path of reasoning for reaching the conclusions that it did about the class of impairment suffered by the plaintiff in the areas of functioning “social and recreational activities” and “concentration, persistence and pace”. To the extent that the reasoning of the review panel on these topics is exposed, the plaintiff submits that the reasoning tends to suggest that the impairment was of a class 3 or class 4 kind.
The plaintiff submits that the present case is analogous to Rose v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 134 (Rose) in which Schmidt AJ concluded that the review panel failed to give reasons for the conclusions that it had reached about the classification of impaired functioning under the PIRS, including in relation to social and recreational activities. Her Honour concluded in Rose, at [82], that the panel “gave so little detail about its path of reasoning that it is not possible to see how its conclusions were arrived at, or that they do not involve an error of law, even reading those reasons beneficially and in light of all that it had otherwise said”. One of the deficiencies emphasised by her Honour was that the review panel expressly indicated that it discussed awarding a higher class of impairment based on the information about social and recreational activities, but awarded a class 2 impairment based on other information about participation in fishing and trail bike riding. Despite having given this indication the reasons did not explain why the review panel favoured one conclusion rather than the other: [85]. Another particular deficiency was found to be that the reasons shed no light on what the review panel in that case had concluded about attendance at social events, or any changes in that regard over time: see [88] and [96]. This was in circumstances where other findings suggested that there had been deteriorating participation in social events: [92].
Starting with the conclusion that the plaintiff suffered from a class 2 impairment in the area of functioning of concentration, persistence and pace, there are various indications in different parts of the reasons of the findings made by the review panel which informed and help explain its clinical judgment. The review panel was privy to information about both the plaintiff’s ability to read and her interest in reading. It made findings that she had a “diminished” ability to think or concentrate and a “decreased” ability to read for “extended periods”. She reported that she had lost interest in reading and did not read more than a few lines of text from snippets on her mobile phone. On the particular metric of reading, the review panel thus described what its investigations disclosed about the plaintiff.
The review panel made direct observations about the plaintiff’s ability to concentrate during her assessment, finding that it was reduced. Her pace of thinking was found to be “slowed” as a result of intrusive depressive thoughts that slowed her pace of thinking. The plaintiff wandered off topic and required prompting to remain on task. She reported having a reduced rate of thinking and made more unintended errors than she did before the onset of this psychological injury. She no longer participated in drawing or hobbies. More positively, the plaintiff could still cook.
The review panel found that before the relevant psychiatric injury the plaintiff had no deficit (or only a minor deficit) in this area of function. Her lack of impairment in this regard was demonstrated by the fact that she had completed a Bachelor of Nursing.
The variety and breadth of this information about the plaintiff is a reflection of the requirement in cl 1.220 that an assessor should assess the “lifestyle, activities and habits” of the claimant, and consider changes in that respect as compared with the period before the psychiatric injury. Having regard to the definition in the Guidelines of “concentration, persistence and pace”, the review panel was required to synthesise all of this information about the plaintiff in assessing her ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings. It is clear that the various findings summarised above were recorded in the reasons because these were the matters which the review panel considered to be significant in explaining its ultimate assessment of the plaintiff’s condition and capabilities. These findings informed the diagnosis of the plaintiff as well as the scoring of the plaintiff under the PIRS. As noted above, the review panel stated expressly in its reasons that it had considered all the documents that were before it, and the evidence summarised in the reasons comprises the evidence that was “of most significance to the matters under review”. These findings can therefore be seen to be the relevant inputs to the ultimate evaluative task of classifying the extent of impairment in this area as “mild”.
As explained above, there are two limbs to the second ground of review. The first is that the review panel neglected to obtain a history of the plaintiff’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury.
As with ground 1, the legal premise of the plaintiff’s argument in ground 2 is relatively straightforward. The review panel was required to carry out its assessment of the plaintiff in accordance with the Guidelines: s 133(2)(a). A failure to carry out the assessment in this way can constitute reviewable error invalidating the review panel’s decision: Boyce v Allianz Australia Insurance Ltd (2018) 96 NSWLR 356; [2018] NSWCA 22 at [16]-[18], [41], [44].
The essence of the plaintiff’s complaint is that the review panel was required to obtain the plaintiff’s history, in terms of her pre-accident lifestyle, activities and habits, but failed to do so. As a result, the plaintiff submits, the review panel could not and did not perform the assessment of impairment required by the Guidelines.
This is factually unsustainable. The reasons record multiple references to the lifestyle, activities and habits of the plaintiff before the relevant psychiatric injury. Findings in this regard are used to populate the pre-existing impairment analysis using PIRS, reproduced at [47] above. The review panel had the benefit of extensive assessments that had been undertaken in the past, including the reasons of Assessor Virgona and Assessor Chew which contained their own histories of the plaintiff and her lifestyle, activities and habits. Particularly in light of the review panel’s express statement that it had regard to all of the evidence provided to it, it is appropriate to proceed on the basis that the review panel was cognisant of the plaintiff’s history.
In oral argument the plaintiff put more emphasis on the proposition that even if the review panel was privy to the plaintiff’s history, it failed to undertake the exercise required by the Guidelines of considering the changes that were observed across the relevant areas of functioning. Reading the reasons fairly and as a whole, that argument cannot be accepted. The exercise of scoring the current areas of functioning of the plaintiff using the PIRS necessarily involved a consideration of her current functioning when compared with her prior functioning in each relevant area. The indications that the review panel appreciated this and undertook the necessary comparisons are woven throughout the reasons. The table setting out the pre-existing impairment analysis provided direct points of comparison in this regard. The reasons of the review panel also contain multiple references to relevant changes over time in the plaintiff’s lifestyle, activities and habits as they bore on the criteria to be applied.
In the context of explaining its diagnosis the review panel recorded the plaintiff’s feelings of sadness and hopelessness that she was unable to return to the career and lifestyle she had prior to the accident. Her inability to perform morning shift due to her low energy each morning was also noted. Her ability to think or concentrate was described as diminished, based on a comparison to what she could have done previously with what she could now do. The plaintiff’s rate of thinking was described in comparative terms, with the review panel recording her reduced rate of thinking and increased errors. The plaintiff’s inability to socialise with her husband and eldest son was described in a context where, fairly read, the review panel was contrasting present and past activities.
**********
Reid
AAI Limited t/as GIO [2025] NSWSC 1308
(2012) 83 NSWLR 302
(2018) 96 NSWLR 356
(2014) 86 NSWLR 214
(2009) 54 MVR 102
(1996) 185 CLR 259
(2019) 100 NSWLR 578
(2014) 66 MVR 152
(2014) 67 MVR 601
(2013) 252 CLR 480
(2016) 75 MVR 1
The second ground of review alleges that the review panel failed to conduct the medical assessment in accordance with the Motor Accident Permanent Impairment Guidelines (version 1) (Guidelines) in circumstances where it was required to do so under s 133 of the MAC Act. The argument as originally expressed had three limbs, deriving from different aspects of the Guidelines and previous judicial decisions. At the hearing counsel for the plaintiff, Ms Gumbert, who appeared with Mr Kim, indicated that the third limb was no longer pressed.
The first limb concerns an alleged requirement, stemming from cl 1.220 of the Guidelines, to obtain a history of the injured person’s pre-accident lifestyle, activities and habits, and then assess the extent to which these have changed as a result of the psychiatric injury. The plaintiff alleges that the review panel failed to obtain such a history, and was therefore unable to (and did not) conduct an assessment of the kind required by the Guidelines.
The second aspect of the Guideline emphasised in ground 2 concerns the category of functioning described as “concentration, persistence and pace”. Clause 1.209 of the Guidelines defines that category as being about the ability to sustain focused attention for long enough to permit the timely completion of tasks commonly found in work settings. The plaintiff alleges that the review panel did not refer to, or engage with, the question of whether the deficits in concentration, persistence and pace affecting the plaintiff would permit the timely completion of tasks commonly found in work settings. This is said to reveal a failure to apply the Guidelines.
Before turning to the resolution of these grounds of review, it is necessary to describe in more detail the relevant parts of the Guidelines and the reasoning of the review panel in its assessment of the plaintiff.
The decision in Rose illustrates how the principles governing an obligation to provide reasons can apply in the present context. As demonstrated by her Honour’s careful analysis in Rose, each case must turn on its own facts, with a particular focus on the findings and reasoning of the review panel.
In relation to “concentration, persistence and pace”, the plaintiff submits that the deficiency in reasoning is compounded by an internal inconsistency, because the reasons record findings to the effect that the plaintiff’s concentration was reduced during assessment, that she had slowed pace of thinking and that she could not read more than a few snippets of lines of text. The plaintiff submits that these factors are inconsistent with the criteria for class 2 impairment and more consistent with class 3 or class 4 impairment.
There is some tension in the plaintiff’s submissions in this regard. The ground of review is an alleged failure to provide reasons. To some extent the plaintiff’s submissions tend to suggest that the actual path of reasoning of the review panel leading to a class 2 conclusion is exposed, and it shows (on the plaintiff’s argument) that the review panel must have misconstrued and/or misapplied the criteria to be applied. Bearing in mind that the relevant purpose of a statement of reasons is to allow for an assessment of whether or not the decision-maker erred in law, that would tend to suggest that there are adequate reasons and the substance of the complaint is in reality about the misinterpretation of the PIRS (which is potentially relevant to ground 2, but not otherwise raised). When this tension was raised with Ms Gumbert she submitted that the findings pointing to a different conclusion are relevant because they reinforce the proposition that there is nothing in the reasons to explain how the review panel could have reached the conclusion that it did, given the findings that it made. That helps demonstrate that one cannot understand the actual path of reasoning of the review panel to reach the conclusions that it did.
In some cases, the kind of analysis suggested in Ms Gumbert’s submission may be a sound way of demonstrating a failure to provide reasons. However, I do not find the factual premise to be made out in this case. The findings recorded in the reasons in relation to concentration, persistence and pace do not point clearly to a classification of 3 or 4.
The review panel did not find that the plaintiff lacked the ability to read more than newspaper articles, or could only read a few lines before losing concentration. The review panel found that the plaintiff had lost interest in reading, but that is not the same as a finding that she had lost the ability to read for more than the time it takes to read a few snippets of text from a mobile phone. And contrary to the plaintiff’s submission, the review panel’s findings about the plaintiff’s reduced concentration under assessment do not equate to a finding that the plaintiff had obvious concentration deficits even during brief conversation (this being one of the example descriptors given in the PIRS against class 4). It is also important to bear in mind that the PIRS is concerned with subtle evaluative judgments, requiring an assessor or review panel to exercise clinical judgment in deciding whether, in relation to a particular area of functioning, a claimant suffers from mild, moderate, severe or total impairment. The fact that a stated finding about a particular metric of functioning might also have some overlap with one of the class descriptors for a different class may say more about the blurred lines between the descriptors corresponding to the different classes than it does about a mistaken classification or a lack of reasons. It is also important not to be drawn through an exercise of this kind into what is in substance a merit review of the factual findings made by the review panel.
As I have emphasised above, to the extent that illustrative descriptions are provided, the Guidelines make clear that these are not to be treated as if they are an expression of the criteria to be applied: see cl 1.220. To focus on this area of functioning, the substantive requirement is for the review panel to consider the claimant’s functioning in terms of concentration, persistence and pace, which is defined to mean the “ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings”: cl 1.209. The review panel was required to determine whether, in this particular area of functioning, the plaintiff was suffering no deficit or, if she was impaired to some extent, the proper classification to reflect the severity of that impairment.
That is a clinical judgment in which the review panel may be assisted by the illustrative examples, such as being “unable to read more than newspaper articles” as an indicator of a class 3 impairment, or being able to undertake a “standard course at a slower pace” as an indicator of a class 2 impairment. Depending on the particular circumstances of the claimant and the information that is available about the activities and functional capacities of the claimant, the illustrative examples may be of more or less assistance in any given case for the identification of the appropriate impairment rating.
In Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 Garling J at [64] said in relation to similar illustrative examples used in the equivalent PIRS in the WorkCover Guides under the Workplace Injury Management Workers Compensation Act 1998 (NSW) that it would be erroneous for an Approved Medical Specialist (AMS) to treat the examples in the tables “solely as the basis for a rating or as the minimum basis for a rating”: [64]. His Honour proceeded to say, at [65], that “the descriptions of the activities which give rise to a conclusion by an AMS of the extent of the disability of an individual by reference to each table in the PIRS, are simply … examples of activities which would indicate an assessable level of disability. Those examples, on their face, are not necessary to be found in each case, but may, in any particular case, be sufficient to support a conclusion as to the level of disability”.
The assessment of a degree of permanent impairment is a “quintessentially factual issue”: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287 at [40]. The exercise required to score a claimant using the PIRS is not capable of being reduced to a mechanistic classification according to clear objective criteria. The classification of a claimant into one class rather than another must inevitably turn on fine matters of evaluative clinical judgment. Hence the express statement in cl 1.217 of the Guidelines that the psychiatrist’s clinical judgment is “the most important tool” in the application of the PIRS and the impairment rating must be “based on the psychiatrist’s clinical experience”. Such clinical judgments are required to be formed in a context where the Guidelines expressly recognised that “[m]edically determinable impairments in thinking, affect, intelligence, perception, judgement and behaviour are difficult to translate into functional limitations”: cl 1.202. That is not to say that the review panel is excused from explaining its actual path of reasoning because it is forming judgments of a clinical nature. The point is rather that the character of such evaluative judgments will shape the way in which the classification choices are explained.
It may readily be inferred that some data viewed in isolation might have pointed generally to a lower classification, such as an ongoing ability to cook and interest in cooking, whereas other data viewed in isolation might have pointed generally to a higher classification, such as wandering off topic and requiring prompting to remain on task. But it is artificial to attempt to understand the review panel’s reasons by reference to individual data points, tested against individual illustrative examples in the PIRS. Nor can it be said that some deficiency in the reasons is revealed by pointing to individual findings and arguing that there needed to be a more explicit explanation of why a higher classification was not reached. The review panel had the responsibility of exercising a clinical judgment about the extent of impairment informed by all of the available data. A fair reading of the reasons is that the review panel formed the clinical judgment that the net effect of all of the relevant data was a conclusion that the degree of impairment was class 2. At that point in the exercise, the review panel was engaged with matters of evaluation and judgment that do not lend themselves readily to any more detailed explanation. These are aspects of the exercise which are “insusceptible of any detailed articulation of reasons”: Zahed at [4]. Reading the reasons fairly and as a whole, the path of reasoning is sufficiently clear.
The same answer applies to the equivalent complaints about the reasons for the conclusion that in the area of social and recreational activities the plaintiff suffered a class 2 mild impairment. The review panel recorded various findings throughout its reasons about the social and recreational activities of the plaintiff. In terms of indicia that were positive to some degree, the plaintiff reported that she would purchase Christmas and birthday gifts for her 7 year old son and prepare a cake for his birthday. She had warm and affectionate feelings towards her son. She would spend time playing simple games like Candy Crush. As for negative indicia, the plaintiff did not participate in wedding anniversaries or home entertainment, and would not draw as she had prior to the accident. She had a strained relationship with her husband. She did not share entertainment events with her husband and had lost interest in following serial television events.
The review panel also made a series of findings about the plaintiff’s functioning in this area before she suffered the relevant psychiatric impairment. The review panel found that she was able to socialise with friends, family and extended family. She enjoyed nature walks, drawing and socialising with her friends and would attend special events when invited by her friendship circle. These findings all informed an assessment that prior to the relevant psychiatric impairment the plaintiff had a class 1 rating in this area of functionality, reflecting no deficit or minor deficit only.
Understood fairly and in context, it is plain enough that these were the findings about the lifestyle, activities and habits that the review panel considered to provide the best insight into her social and recreational activities, so as to allow a clinical judgment to be made about the extent of the plaintiff’s impairment in that regard. Again, the factors may have pulled in different directions, and viewed individually might be thought to have supported one conclusion rather than another. The role of the review panel was to exercise a clinical judgment about the extent of impairment which was informed by all of the findings that were described.
The plaintiff submits that there was insufficient attention to the “social” aspect of social and recreational activities, and a critical gap in the reasoning in this regard. In particular, the plaintiff submits that consideration needed to be given specifically to whether or not the plaintiff did attend social events, and if she did so when prompted or with a support person. Those submissions seek to import into the PIRS (and the corresponding obligation to give reasons for why particular classifications have been reached using the PIRS) a level of specificity and rigidity that is unwarranted. It may be accepted that the area of activity encompasses both social and recreational activities: see Georges v Musico [2025] NSWSC 1085 at [84]. The findings of the review panel in the present case included social activities (such as anniversaries, entertainment events, entertaining at home) as well as recreational activities.
To the extent that the plaintiff goes further in arguing that social activities of a particular kind must be assessed and explained in the reasons, the argument involves elevating one or more of the particular illustrative examples, concerned with attendance at social events with or without a person, to the level of a substantial criterion which must be applied in every case. The Guidelines are not so prescriptive as to the way in which impairment in this area of functioning is to be measured, and conclusions explained. In the present case, the review panel explained the relevant data points on this topic that were available to it, based on voluminous evidence that was available about the past and present lifestyle, activities and habits of the plaintiff.
In terms of explaining how the review panel proceeded from that available data to its conclusion I am satisfied that the path of reasoning is adequately exposed by a fair reading of the reasons. To the extent that the plaintiff complains that the reasoning and findings of the review panel should have pointed to a higher classification than the one determined by the review panel, that might be relevant to a complaint that the review panel erred in law. But it does not assist where the complaint is a failure to provide reasons.
In relation to drawing, as explained above, the plaintiff was found to have lost the interest she previously had in this regard. She had also lost interest in reading. In relation to another recreational activity the plaintiff was found to have lost interest in following serial television events.
In light of these various findings, I reject the plaintiff’s argument that the review panel failed to undertake the necessary task of comparing the current and past lifestyle, activities and habits of the plaintiff so as to enable an appropriating application of the PIRS.
The second aspect of ground 2 focuses on the definition in cl 1.209 of the Guidelines of the area of functioning of “concentration, persistence and pace”, namely the ability to sustain focused attention for long enough to permit the timely completion of tasks commonly found in work settings. The plaintiff alleges that the review panel did not refer to, or engage with, the question of whether the deficits in concentration, persistence and pace affecting the plaintiff would permit the timely completion of tasks commonly found in work settings. This is said to reveal a failure to apply the Guidelines.
The plaintiff was apparently not working at the time of her assessment by the review panel, having ceased work in 2021. The review panel did make a finding, in the context of considering “adaptation”, that after the motor accident the plaintiff had been able to work less than 20 hours per week in a different role in a different and less stressful environment for a different employer. As at the time of the assessment by the review panel this was not a situation in which there was scope to assess directly the extent of any impairment of the plaintiff’s ability to sustain focused attention the specific context of performing tasks in an actual work setting. The review panel was necessarily concerned with other indications of impairment of the plaintiff in terms of her ability to sustain focused attention in performing tasks and undertaking activities in non-work settings, as a proxy for forming a view about the degree of impairment that would sound in an impact on the timely completion of tasks commonly found in work settings.
This is not an exercise that is spelt out by the review panel in terms that expressly invoke the definition of concentration, persistence and pace in cl 1.209. However, it does not follow that the review panel failed to apply the concept as defined in the rules. The question is one of substance. The review panel appreciated that because of poor sleep and resulting unreliability in the workplace on the morning shift the plaintiff had ceased work as a nurse, and she felt unable to recover her career and lifestyle. She had then worked for a period in a different role in a less stressful environment. As to her activities and capacities subsequently, as the first defendant submitted, the aspects of the plaintiff’s condition that were analysed by the review panel – ability to read, and interest in reading, for a sustained period of time, ability to perform tasks of different degrees of complexity (such as cooking), ability to concentrate, speed of thinking – were all matters that allowed for an application of the concept in the Guidelines. That is because they were relevant indicia of the plaintiff’s ability to sustain focused attention.
It is again important to emphasise that the Guidelines call for an assessment of the degree of impairment in this area of functioning, rather than any binary conclusion. That is relevant to understanding the ultimate classification, and also the treatment of the various data points. The concept in the Guidelines of a claimant’s ability to sustain focused attention, for long enough to permit the timely completion of tasks commonly found in work settings, does not call for an absolute answer but for an assessment of the extent of any impairment in such ability. That will be informed by considerations that might point higher or lower on the scale. For example, in terms of concentration the review panel found that during her assessment the plaintiff had reduced concentration, and would wander off topic, requiring prompting to remain on task. On the other hand she was oriented in time, place and person and she did not demonstrate any form of thought disorder.
These findings were relevant to the exercise required under cl 1.220 because of the potential to inform the ultimate clinical judgment about the degree of impairment of the plaintiff’s ability to sustain focused attention. Under the Guidelines, the appropriate point of reference for then classifying the extent of such impairment is to consider the length of time that is required for the timely completion of tasks commonly found in work settings.
The plaintiff’s argument depends on the proposition that although the review panel may have considered the plaintiff’s ability to concentrate, complete tasks and sustain focused attention, it failed to consider and apply the relevant point of reference when assigning a classification. I do not accept that this is a fair reading of the review panel’s approach. The plaintiff bears the onus of proof in this regard, which is significant in circumstances where the review panel was not explicit in stating that it considered ability to sustain focused attention specifically by reference to tasks commonly found in work settings. It would be unrealistic to assume that the review panel applied a classification merely at large. Nor is there any basis to conclude that the review panel adopted some different but erroneous point of reference. In the circumstances, I would not infer that the review panel neglected to apply the definition in the Guidelines, when it arrived at a classification in respect of concentration, persistence and pace.
In reaching that conclusion I am mindful of the principle that a court on judicial review should not fill gaps based on an assumption that the decision-maker correctly applied the law. I do not make that assumption, but instead consider the more natural inferences having regard to the reasons as a whole and the context of the review panel’s function in applying the PIRS and the Guidelines.
For these reasons, ground 2 must also fail.