1. The provisions of the Civil Liability Act 2002 (the CL Act) apply to the MAI Act in determining issues of causation. Particularly ss 5D and 5E of the CL Act.[8] In Raina v CIC Allianz Insurance Ltd[9] Campbell J stated:

"One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of their powers. This includes the provisions of Division 3 of Part 1A of the Civil Liability Act 2002 (NSW), ss5D and 5E: see s 3B(2)(a) of that Act. Although it may be expected that questions about the appropriate scope of liability will arise but rarely."

1. Further, cls 6.5 to 6.7 of the Guidelines refer to causation of both injury and whether the degree of permanent impairment is caused by injury.
2. Clause 6.7 of the Guidelines provides:

"There is no simple common test of causation that is applicable in all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible."

1. The Medical Assessor noted the body parts referred for assessment were the left hip, left knee, scarring, left shoulder and splenic injury. It was noted that the claimant did not attend for any orthopaedic or dental after-care following discharge from Westmead Hospital.
2. The Medical Assessor found no loss range of motion of the left upper extremity, reduced loss of flexion of the left hip at 5%, lower extremity impairment and loss of range of motion of the left knee assessed at 10% lower extremity impairment.
3. The Medical Assessor assessed the level of whole person impairment (WPI) at 8% WPI comprising 6% for the left lower extremity (hip and knee) and 2% scarring.

1. The parties filed bundle of documents for the Panel's consideration.

1. The ambulance report noted the motor accident and the claimant complained of pain to left forehead, left cheek, left jaw, left shoulder, left abdomen, left hip and bleeding to the face.[10]
2. The hospital records note closed reduction of the left hip on 24 July 2019 and open reduction and internal fixation of the mandible fracture and patella fracture on 29 July 2019.[11] Other injuries included a grade II splenic laceration and left clavicular fracture.
3. An X-ray of the pelvis dated 24 July 2019 showed a dislocated left hip and suspicion of an associated acetabular fracture.[12]
4. The CT scan of the brain dated 24 July 2019 showed no acute intracranial haemorrhage or other herniation, left mandible fracture, Grade II splenic laceration, left clavicular fracture, fracture of the left acetabulum with bone fragments postero-laterally and a dislocated left femur.[13]
5. The X-ray of the mandible dated 31 July 2019 showed a strong plate fixation of the left angle of the mandible fracture which involved the root of 3-8 with minimal residual displacement. Dental review was recommended for carries at various teeth.[14]
6. A certificate of capacity dated 1 August 2019 noted fractures to the pelvis, left mandible, left clavicle and left patella and hip dislocation.[15]

1. Associate Professor Shatwell was qualified by the insurer and provided a report dated

13 January 2023.[16] The doctor noted that the motor accident caused posterior dislocation of the left hip with a comminuted fracture of the posterior margin of the left acetabulum, and displaced fracture of the left clavicle, a comminuted minimally displaced fracture of the left knee and a fracture of the angle of the left mandible. 2. A CT scan also identified an injury to the spleen described as a Grade 2 laceration with no active bleeding. 3. The doctor recommended operative removal of the metal wire in the left kneecap and appropriate physiotherapy for the left thigh muscle wasting which has resulted in loss of full active extension of the knee. 4. Associate Professor Shatwell noted that they would likely be some deterioration in function of the left patellofemoral joint with the development to post-traumatic arthritis in the future with the likelihood of a new knee replacement in the long-term. 5. The doctor also noted a significant possibility of post-traumatic arthritis developing in the left hip joint as a result of the acetabular fracture and any chondral injury to the head of the femur which was dislocated in the motor accident. 6. The doctor assessed impairment of the left patella at 5% WPI due to the articular surface fracture and allow an additional 1% WPI for the scarring. 7. The doctor observed there was no loss of range of motion of the left shoulder with no resulting impairment. 8. Associate Professor Shatwell noted that the left clavicular fracture had healed without any loss of range of motion in the left upper limb and there was no impairment for the splenic injury which had healed without any problems. 9. Dr Curtis, oral and maxillofacial surgeon was jointly qualified by the parties and provided a report dated 5 September 2023. The report is irrelevant for this review save that the doctor noted laceration to the left eyebrow and lower lip region.[17] 10. Dr Jame Bodel, orthopaedic surgeon, was qualified by the claimant and provided a report dated 27 November 2023.[18] The doctor assessed loss of movement of the left shoulder at 4% WPI, loss of movement of the left hip at 10% lower extremity impairment and of the left knee at 10% lower extremity impairment. The scarring was assessed at 1%.

Claimant's submissions dated 23 December 2024[19]

1. These submissions were filed in relation to review of the medical assessment.
2. The claimant agreed that Medical Assessor Berry failed to provide adequate reasons in relation to the assessment of the scarring. It was otherwise noted that the Medical Assessor did not consider the scarring to the claimant's face.
3. The claimant submitted that the Medical Assessor erred by combining lower extremity impairments for the left knee and hip contrary to cl 6.71 of the Guidelines.

Claimant's submissions dated 7 March 2025[20]

1. These submissions were filed in relation to review of the medical assessment.
2. The claimant noted the following injuries were referred to Medical Assessor Berry:
   • left shoulder - injury to the shoulder and fracture of the clavicle;
   • left hip - posterior dislocation of the left hip, fracture of the acetabulum requiring reduction;
   • left knee - fracture of the patella;
   • spleen, and
   • scarring - front of the knee and over the face including the eyebrows and lips.
3. The claimant noted that Medical Assessor Nicholls provided a medical assessment certificate dated 6 September 2024 in relation to the fracture of the left mandible. That medical assessment has been referred to a Review Panel which had not yet been constituted. It was noted that this panel should be aware of the related review application and, if appropriate, dealt with together.[21]

Insurer's submissions dated 16 January 2024[22]

1. The insurer referred to the opinion of Associate Professor Shatwell dated 13 January 2023.
2. The insurer noted that the claimant did not report any pain in her left shoulder when examined by Associate Professor Shatwell and he otherwise found full range of movement in that body part with no deformity of the left clavicle or acromioclavicular joint on either side. That doctor assessed 0% impairment of the left shoulder.
3. In respect of the assessment of the fracture of the left patella, the insurer referred to the findings by Associate Professor Shatwell and submitted that any impairment related to the injury should not exceed 5% WPI.
4. In respect of the posterior dislocation in fracture of the acetabulum, the insurer referred to the findings of Associate Professor Shatwell who found movements were symmetrical and normal, there were no signs of muscle spasm and no crepitus in the hip. It submitted that there should be no assessment or permanent impairment in respect of the left hip fracture and dislocation.
5. The insurer noted that both Dr Bodell and Associate Professor Shatwell assessed scarring at 1% WPI due to the injury of the left patella and submitted that this was an appropriate assessment.

Insurer's submissions dated 19 December 2024[23]

1. These submissions were filed seeking leave to review the medical assessment.
2. The insurer submitted that the Medical Assessor failed to address the 10 descriptors of the TEMSKI scale and failed to apply a best fit criteria when assessing 2% for the scarring.
3. The insurer referred to cls 6.262, 6.264 and 6.265 of the Guidelines in relation to the assessment under the TEMSKI table. Consistent with these submissions, the insurer submitted that the Medical Assessor failed to provide adequate reasons for the assessment of the surgical scar over the left knee.

1. Ms Wilson was examined by Medical Assessor Gorman on 24 September 2025. The examination report is as follows:

She was seen with a chaperone arranged by the Commission (Cara Avery).

Ms Wilson Is a 29-year-old woman who is working as a chef in a restaurant in Sydney.

She has four children aged 3, 4, 6, nine years of age.

The three-year-old child goes to daycare when she works. The other children live with her family.

Ms Wilson on the 24 July 2019 was the front seat passenger in a van being driven by her ex-partner chased by Police. They were travelling along the Great Western highway and apparently went through a red light resulting in a high-speed collision.

Ms Wilson noted that she had pain in her left hip and knee as well as left shoulder and left side of the abdomen immediately after the accident. She was assisted out of the van by the police and conveyed by ambulance to Westmead Hospital.

History of symptoms and treatment following the motor accident

At Westmead Hospital X rays and investigations showed a posterior dislocation of the left hip with a comminuted fracture of the posterior margin of the left acetabulum. There was also an undisplaced fracture of the left clavicle. There was a fracture of the left patella and also of the left lower mandible.

The CT scan also showed laceration of the spleen with no active bleeding.

She had an urgent reduction of her dislocated left hip and later an open reduction and internal fixation of the comminuted fracture of the left knee. At the time of surgery, she had a reduction of the left mandibular fracture and fixation with plates and screws.

She was 20 weeks pregnant at the time of the accident. Her child was born and is now six years of age.

She had physiotherapy in hospital and was discharged from the hospital on one August 2019 on crutches.

She used over the counter analgesics and gradually increased weight bearing on her left leg as her symptoms improved. She did not have any physiotherapy.

Details of any relevant injuries or conditions sustained since the motor accident

No relevant injuries or conditions sustained since the motor accident.

The left knee is the biggest problem. She does not like the appearance of the scarring and never wears shorts. The knee aches in cold weather. She cannot run. She cannot kneel on that side.

She gets left hip pain if she lies on the left side.

The last 1-2 years have been the worst for the pain both in the hip and in the left knee.

She does not have any medications now nor any other treatment.

She was a well looking women and gave a clear account of her history.

Cervical spine range of motion was normal in all planes.

Power, sensation and reflexes in the upper limbs was normal. There was no wasting.

She had a normal pain free range of motion in all planes.

Power, sensation and reflexes in the lower limbs was normal. Sciatic stretch testing was negative. There was no wasting.

The ranges of motion outlined below were normal measured with a goniometer.

There was no wasting in the lower limbs. Thigh circumference was 46cm on the left and right measured 10cm above the patella. The right calf was 37cm and the left calf 36cm measured 10cm below the tibial tubercle.

The right knee had a range of motion from 0 to 130 degrees.

The left knee was tender with a long 15cm widened, slightly depressed scar. The scar was easily located, she was conscious and embarrassed about it, it was slightly paler, there were no suture marks or trophic changes and had an effect on ADLs in that she could not kneel on the scar because of tenderness of the scar and the underlying hardware.

The left knee range of motion was from 0 to 100 degrees.

The hip range of motion is outlined below - this was measured with a goniometer and there was restriction in flexion, abduction, external and internal rotation.

There was a 2cm depressed scar above the left eyebrow. It was mildly pigmented compared with the surrounding skin. It was easily seen. There were no suture marks. There was a fine scar near the hairline. There were no visible scars from the abrasions described around the lips soon after the accident.

• Left Shoulder - injury to the left shoulder and fracture of the clavicle - the range of motion in the shoulder is normal giving no assessable impairment.

• Left Hip - posterior dislocation of the left hip, fracture of the acetabulum requiring reduction - using Table 40 on page 78 the restriction in flexion of the hip gives 5% lower extremity impairment (LEI). Reduction in internal rotation gives 5% LEI and in abduction 5% LEI. Paragraph 6.85 of the NSW Motor Accident Guidelines states that the greatest figure only must be chosen. Therefore, the LEI due to the hip is 5%. The WPI is therefore 2% WPI for the hip.

• Left Knee - fracture to the left patella - using Table 41 the limitation in flexion gives a 10% LEI which equates to a 4% WPI for the knee.

The combined left lower extremity whole person impairment is therefore 6%.

• Spleen - splenic injury - there are no residual symptoms and no assessable impairment.

1. The review is by way of new assessment of all matters with which the medical assessment is concerned.[24] The Panel conducts a new assessment of all the matters with which the medical assessment is concerned.[25]
2. The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[26] and Insurance Australia Ltd v Marsh.[27]
3. The Panel has reconvened following the examination. We adopt the examination report provided by Medical Assessor Gorman subject to and supplemented by the following further reasons.
4. We note that the assessments provided by Medical Assessor Gorman are consistent with those recorded by Medical Assessor Berry. The only difference is that we have allowed a further 1% for facial scarring.
5. The contemporaneous notes support the causative relationship between the motor accident and the various injuries. The insurer did not submit otherwise.
6. All of the referred injuries below were caused by the motor accident because there is clear contemporaneous evidence of injury, an absence of prior symptoms and the injuries are consistent with the nature of the motor accident. The injuries are:

• Left Shoulder - injury to the left shoulder and fracture of the clavicle;

• Left Hip - posterior dislocation of the left hip, fracture of the acetabulum requiring reduction ;

• Skin scarring - surgical scar over the front of the knee, suture scars over the face including eyebrows and lips

1. In relation to the left shoulder, the claimant has regained full motion. It is to the claimant's credit that range of movement of the left shoulder was full.
2. In relation to the left hip, the insurer relied on Associate Professor Shatwell's assessment from January 2023. We have adopted Medical Assessor Gorman's assessment and note the following:
   • Associate Professor Shatwell's assessment is outdated;
   • we are required to form our own opinion;
   • the assessment of Medical Assessor Gorman is consistent with that recorded by Medical Assessor Berry;
   • the claimant sustained a significant injury to the left hip, and the loss of flexion is entirely consistent with the motor accident and resultant injury, and
   • the claimant appeared credible as evident from the return of left shoulder function.
3. In relation to the left knee, Associate Professor Shatwell assessed the impairment under Table 64 of AMA 4 based on the fracture to the articular surface displaced at more than 3mm which is assessed at 5% WPI/12% LEI. That opinion could only be based on the hospital records, which, in our view, overstates the nature of extent of the fracture. We have applied the findings of Medical Assessor Gorman and assessed this impairment of the left knee at 4% based on loss of range of motion. That loss is medically consistent with the nature of the knee fracture.
4. We otherwise note the claimant's submission with respect to the application of combining separate injuries in the lower limb (cl 6.71 of the Guidelines).
5. Minor skin impairment is assessed under Table 6.18 and applying cls 2.262 - 2.266 of the Guidelines. However, facial scar is assessed separately from bodily scarring (cl 6.191) and is undertaken based on the skin (AMA 4 pages 279-280) or the face (AMA 4, 229-230).
6. As the facial scars are assessed differently from the knee scar, then we would assess the facial scar at 1% and the knee scar at 2%.
7. The knee scar is clearer and more significant. Using the TEMSKI chart (Table 6.18 on page 131 of the Guidelines) for the knee:
   • - Conscious - she was conscious of the scar and did not wear shorts because of it
   • - Colour - the scar was slightly paler than the surrounding skin
   • - Ability to locate - she could easily locate the scar
   • - Trophic changes - no trophic changes
   • - Suture marks - there were no suture marks but the scar was widened
   • - Anatomic location - the scar could be seen with shorts
   • - Contour - the scar was not depressed
   • - Effect of ADLs - she could not kneel on the scar
   • - Treatment required - no treatment required
   • - Adherence - the scar was not adherent
8. The facial scar is assessed under Class 1 (AMA 4, p 229) at the lower end of the range.
9. For the facial scarring, paragraph 6.259 of the Guidelines the assessment of impairment states that Chapter 13 'The skin' (pages 279-280, AMA4 Guides) and/or section 9.2 'The face' (pages 229-230, AMA4 Guides) are used for assessment.
10. There are visible scars over the left eyebrow with slight pigmentation. Class 2 does not apply because there is no loss of supporting structure. The nature of the scarring places it at the lower end of the Class 1 range.
11. The criteria for facial impairment are listed on page 229 of AMA4. The claimant has a visible scar with no loss of a supporting structure of the face. The scar is easily visible, does not affect vision or ADLs, is slightly pigmented and indented. These findings are consistent with the recent observations of Medical Assessor Curtin in his re-examination in the other Panel which described the claimant as having "a 2 cm noticeable, indented scar just above the left eyebrow, and a fine line scar near the hairline, but there were no other visible scars, and her face had a generally symmetrical appearance".
12. We find that the facial scarring is at the bottom end of the range for Class 1 and assess 1% for facial scarring.
13. There are no relevant pre-existing physical symptoms and no objective evidence of impairment at the time of the motor accident. There is no basis to make any deduction for pre-existing impairment.
14. We are satisfied that the impairment is permanent within the meaning of cls 6.19 and 6.20 of the Guidelines because the condition is well stabilised, the claimant does not require further surgery and treatment in the foreseeable future.
15. The Medical Assessors' clinical examination of the claimant is that there is unlikely to be a change greater than 3% impairment over the next year. As we noted, the assessment provided by Medical Assessor Gorman is essentially the same as that provided by the assessment under review. The only difference in the assessments is that we have allowed 1% for facial scarring.
16. The claimant has the following impairments:

Chapter 3 - Figure 38, 41, 44 and Table 3 on page 20

The impairment caused by the accident for the body parts referred to this Panel is 9%.

1. The Panel concludes that the degree of permanent impairment of the claimant that has resulted from the injuries caused by the motor accident is 9%. The original Certificate is therefore revoked.
2. Another Panel has revoked the certificate issued by Medical Assessor Nichols and certified the impairment for mastication due to the fractured mandible at 7%. Accordingly, it is necessary to revoke the combined certificate dated 28 November 2024.
3. A new combined certificate is attached at the commencement of these Reasons.

[2] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.

[5] Section 7.26(5) of the MAI Act; claimant's bundle, page 303.

[8] See s 3B(2) of the Civil Liability Act 2002.

[9] [2021] NSWSC 13 (Raina) at [65].

[21] These submissions were obviously made prior to the other Panel issuing its determination.

[26] [2021] NSWCA 287 at [40], [41] and [45].

[27] [2022] NSWCA 31 at [11], [21], [64].