Bath v Allianz Australia Insurance Limited

1. [1]

   Price AJA: These proceedings arise from a decision on 4 July 2025 of the second defendant, the Review Panel of the Personal Injury Commission of New South Wales (“the Panel”) constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (“the MAI Act”), which assessed the plaintiff’s, Mr Bath’s, degree of Whole Person Impairment (“WPI”) resulting from the motor vehicle accident on 2 March 2019 to be 5%: Bath v Allianz Australia Insurance Ltd [2025] NSWPICMP 481. An assessment of 5% WPI falls below the threshold of being greater than 10% to entitle the plaintiff to be awarded damages for non-economic loss pursuant to s 4.11 of the MAI Act.

2. [2]

   By amended summons filed on 30 October 2025, the plaintiff seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the Panel’s decision. The plaintiff advances two grounds of review which are confined to the Panel’s finding that the injury to the plaintiff’s left shoulder was not caused by the motor vehicle accident. The first ground is a complaint about whether the Panel erroneously treated the lack of contemporaneous evidence in relation to the injury to the plaintiff’s left shoulder as decisive or determinative of the question of causation. The second ground, which essentially overlaps with Ground 1, alleges that the Panel constructively failed to exercise its jurisdiction by failing to provide any reasons or any lawful reasons as to the cause of the plaintiff’s left shoulder injury.

3. [3]

   The plaintiff seeks an order in the nature of certiorari setting aside the Panel’s decision or alternatively a declaration to that effect, and further an order that the matter be remitted to the third defendant, the President of the Personal Injury Commission of NSW (“the PIC”), for referral to a differently constituted review panel for redetermination according to law.

4. [4]

   An unusual feature of the present proceedings is that all three defendants have filed submitting appearances save as to costs, which includes in particular the first defendant, Allianz Australia Insurance Limited (“Allianz”). Accordingly, none of the defendants have taken an active role in these proceedings, neither consenting nor opposing the relief sought by the plaintiff: Nyman v Valmas [1997] NSWCA 235 (Beazley JA, Mason P and Priestley JA agreeing), quoted in Kisimul Holdings Pty Ltd v Clear Position Pty Ltd (No 2) (2014) 86 NSWLR 645; [2014] NSWCA 317 at [14] (Beazley P, Barrett and Gleeson JJA). However, I am mindful that these proceedings which invoke the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act, could not in any event simply be resolved by consent without the Court itself being satisfied upon the basis such orders were to be made: Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323; [1999] FCA 557 at [11] (French J); Lou v IAG Ltd t/as NRMA Insurance (2019) 101 NSWLR 606; [2019] NSWCA 319 at [44] (Payne JA, Gleeson JA agreeing).

Background

1. [5]

   The plaintiff suffered a number of injuries in a motor vehicle accident on 2 March 2019 while travelling as a passenger on the Sydney Light Rail when the light rail vehicle came to a sudden and unexpected stop causing him and his mobility scooter to fall over inside the carriage. The plaintiff was treated by paramedics at the scene of the accident and was taken by ambulance to St Vincent’s Hospital for further treatment.

2. [6]

   The plaintiff made a claim against Allianz (the compulsory third party insurer of the light rail vehicle at fault) for statutory benefits and damages (which included relevantly a claim for non-economic loss) under the MAI Act. The plaintiff’s claim was supported by Dr John Bentivolglio’s report who assessed the plaintiff’s degree of WPI to be 26%. Allianz disagreed with Dr Bentivolglio’s assessment of the plaintiff’s WPI and refused his claim. A dispute arose between the plaintiff and Allianz as to his degree of WPI resulting from the injuries caused by the motor vehicle accident including whether the plaintiff’s WPI exceeded the threshold limit of 10%: Sch 2, cl 2(a) of the MAI Act. It was thus a “medical dispute” within the meaning of s 7.17 of the MAI Act.

3. [7]

   The dispute was referred by the PIC for medical assessment under s 7.20 of the MAI Act to a medical assessor, Dr Nelukshi Wijetunga (“the Medical Assessor”). On 9 December 2024, the Medical Assessor assessed the plaintiff for the injuries referred for assessment which included the plaintiff’s right and left shoulder, cervical spine, thoracic spine and skin scarring from the surgeries to his right and left shoulders. The next day, on 10 December 2024, the Medical Assessor issued a certificate and reasons under s 7.23 of the MAI Act, which stated that the plaintiff’s injuries were caused by the motor vehicle accident and assessed his WPI to be 17%. However, the Medical Assessor declined to make an assessment under s 7.21(4) of the MAI Act in relation to the plaintiff’s left shoulder which at that time had undergone a recent surgery.

4. [8]

   Allianz applied for a review of the Medical Assessor’s assessment pursuant to s 7.26 of the MAI Act. On 6 February 2025, a Delegate of the President of the PIC was satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect and the matter was subsequently referred to the Panel: s 7.26(5) of the MAI Act.

5. [9]

   On 4 July 2025, the Panel constituted under s 7.26(5A) of the MAI Act, assessed the plaintiff’s WPI resulting from the injuries to his cervical spine and thoracic spine caused by the motor vehicle accident to be 5%. The Panel found that the plaintiff’s injuries to his right and left shoulders, the cervical spine (damaged spinal stimulator) and skin scarring were not caused by the accident. The Panel revoked the Medical Assessor’s certificate and issued a new certificate under s 7.23 of the MAI Act, which had the effect that the plaintiff was no longer entitled to damages for non-economic loss under s 4.11 of the MAI Act.

Relevant legislation

1. [10]

   Section 7.21(1) of the MAI Act provides that “the assessment of the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accidents Guidelines”.

2. [11]

   The State Insurance Regulatory Authority, Motor Accident Guidelines (version 9.3, effective from 6 December 2024 to 15 September 2025) (“Motor Accident Guidelines”) is the applicable version of the Motor Accident Guidelines at the time of the Panel’s decision and provides the approach to assessing the plaintiff’s degree of WPI as a result of an injury caused by a motor vehicle accident which includes the element of causation: Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [17] (Gleeson JA, Macfarlan and Leeming JJA agreeing); Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192; (2016) 77 MVR 206 at [41] (Leeming JA, McColl and Gleeson JJA agreeing).

3. [12]

   Clauses 6.5, 6.6 and 6.7 of the Motor Accident Guidelines are as follows:

4. [13]

   The reference to “common law principles” in cl 6.5 of the Motor Accident Guidelines has been observed as “referring to the legal principles that courts or claims assessors are required to apply in determining causation” and includes “not only common law principles, in the strict sense, but also such principles as modified or explained by statutory provisions, such as s 5D of the Civil Liability Act 2002 (NSW), where applicable”: Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; (2012) 61 MVR 245 at [27] (S G Campbell J) (“Owen”); Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; (2020) 93 MVR 378 at [80]-[81] (Wright J); Insurance Australia Ltd t/as NRMA Insurance v Kirkpinar [2025] NSWSC 162 at [17] (Mitchelmore J).

The Panel’s reasons

1. [14]

   The Panel in its reasons detailed the background to the application which included a summary of the findings by the Medical Assessor, the plaintiff’s complex medical history and the evidence which included in particular an ambulance report, a letter from St Vincent’s Hospital dated 2 March 2019 and medical records from Royal Prince Alfred Hospital and the plaintiff’s General Practitioner, Dr Nugent.

2. [15]

   The plaintiff was re-examined on 20 June 2025 at Hornsby by two members of the Panel, Drs Barnsley and Cameron.

3. [16]

   As to the Medical Assessor’s decision, the Panel noted at [18] that:

4. [17]

   The Panel at [34] referred to the ambulance report dated 2 March 2019, where it was relevantly recorded that the plaintiff complained of “pain alongside L) side of body including shoulder and hip”.

5. [18]

   The Panel noted at [35] as to what was recorded in a letter by Dr Young from St Vincent’s Hospital dated 2 March 2019, which stated that the plaintiff has “significant pain, 8/10, almost all over body pain”.

6. [19]

   Under the heading “Summary” the Panel relevantly said:

7. [20]

   Under the heading “Causation” the Panel stated the following:

Ground 1: Contemporaneous evidence as determinative of causation

1. [21]

   The plaintiff submitted that the Panel committed a jurisdictional error or error of law on the face of the record in determining causation of the plaintiff’s left shoulder as it found that a lack of contemporaneous evidence was determinative of the issue of causation and failed to take into account other available contemporaneous evidence available to it citing Bugat v Fox [2014] NSWSC 888; (2014) 67 MVR 150 (“Bugat”); Robson v QBE Insurance (Australia) Ltd [2020] NSWSC 1558; (2020) 94 MVR 341 (“Robson”); Wharram v CIC Allianz Insurance Ltd [2020] NSWSC 1144; (2020) 94 MVR 43 (“Wharram”) and Francica v Allianz Australia Insurance Ltd [2015] NSWSC 1140; (2015) 71 MVR 537 (“Francica”). The other contemporaneous evidence which the plaintiff relies on includes the ambulance report and the letter from St Vincent’s hospital mentioned at [17]-[18] above in combination with the plaintiff attending consultations with Dr Nugent concerning left shoulder pain and undergoing a number of investigations, injections and ultimately surgeries on his shoulder.

Determination

1. [22]

   It is well-established that if a review panel treats the lack of available contemporaneous evidence as decisive or determinative in its determination of the question of causation that is a jurisdictional error: see, eg, AAI Ltd (t/as GIO (as agent for the Nominal Defendant)) v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348 at [64]-[66] (Meagher, Simpson and Payne JJA); Owen at [52] (S G Campbell J); Bugat at [31]-[32] (R S Hulme AJ); De Gelder v Rodger (No 2) [2014] NSWSC 1355; (2014) 68 MVR 340 at [65]-[66] (Hamill J); Francica at [53] (Rothman J); Partridge v IAG Limited t/as NRMA Insurance [2019] NSWSC 127; (2019) 89 MVR 36 at [45] (Harrison J); Robson at [116]-[117] (Wright J); Fraser v AAI Limited t/as GIO as agent for the Nominal Defendant [2020] NSWSC 1333 at [57] (Campbell J); Wharram at [37]-[39] (Davies J); Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548; (2021) 96 MVR 170 (“Norrington”) at [31]-[32] (Brereton JA); Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804; (2021) 96 MVR 456 at [39] (Walton J). However, in deciding a question of causation, a review panel is entitled to give weight to contemporaneous medical records. Furthermore, the absence of any record of complaint of symptoms following an accident might be a powerful indicator that a particular injury was not caused by the accident. Nevertheless, it is not decisive as “there are many reasons why a complaint might not be made, or recorded, promptly following an incident”: Norrington at [40].

2. [23]

   The reasons of the Panel must not be construed “minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6; Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [16] (Bell CJ and Kirk JA). It is equally important to note that the Panel’s reasons must be read fairly and as a whole: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [76]-[77] (Bell P, Ward JA agreeing).

3. [24]

   Having considered the Panel’s reasons, read fairly and as a whole, it is apparent that the Panel’s focus was on the existence or absence of contemporaneous documentation of injury to the plaintiff’s shoulders. The existence of documentation consistent with the plaintiff falling to his left side led to a conclusion at [93] that it was possible the plaintiff fell onto a shoulder and to the Panel’s acceptance that “the accident could have caused injury to a shoulder or shoulders, solely on the basis of that fall” (see [20] above).

4. [25]

   Notwithstanding that finding, the plaintiff’s inability to explain the lack of documentation of shoulder pain; the absence of mention of early shoulder pain in the St Vincent’s Hospital records including radiology ordered and the Prince Alfred Hospital notes led to the conclusion at [94] that “the accident did not cause injuries to the shoulders” (see [20] above). Whilst the Panel referred at [95] to the mention of pain in the shoulder region in the ambulance report, the Panel contrasted that mention in the ambulance record with the absence of any specific shoulder pain being recorded at St Vincent’s Hospital.

5. [26]

   Although the Panel refers at [94]-[95] to the contemporaneous medical records lending “weight”, it is plain that the absence in those clinical records of pain or injury to the plaintiff’s shoulder was treated as being decisive for its decision that, on balance of probabilities, the accident did not cause injury to the left or right shoulder.

6. [27]

   Having made the finding at [93] that the accident could have caused injury to a shoulder or shoulders, the only factor in the Panel’s reasons that explains the conclusion that the injury to the left shoulder was not caused by the accident was the absence of documented contemporaneous complaints of shoulder pain or injury in formal medical assessments performed in a controlled hospital setting.

7. [28]

   The material before the Panel included the plaintiff not presenting with injury to his left shoulder prior to the accident; consultations after the accident with Dr Nugent; consultations with Dr Petchell which involved a left shoulder arthroscopy and subsequent left shoulder replacement; Dr Bentivolglio’s assessment of injury to the left shoulder as a result of the accident; the medical history provided by the plaintiff and the re-examination by two members of the Panel. The Panel was obliged on all of the material before it, including the absence of documented contemporaneous complaints, to determine whether the accident was a contributing cause of the injury to the plaintiff’s left shoulder which was more than negligible. That obligation was not fulfilled in the present case by the Panel summarising some of the material in its reasons and stating at [33] that its conclusions had “been reached in the context of the entirety of the material”, with a similar statement at [98] (see [20] above).

8. [29]

   By treating the absence of documented contemporaneous complaints as decisive, the Panel failed properly to exercise its jurisdiction. I am satisfied that failure was material to the Panel’s decision as had the error not been made the conclusion on causation could realistically have been different: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7], [12]-[15] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing).

9. [30]

   Ground 1 is established.

Ground 2: Lawful reasons not given

1. [31]

   The plaintiff contended that the Panel had also constructively failed to exercise its jurisdiction in that it failed to set out any reasons or any lawful reasons as to the cause of the plaintiff’s left shoulder injury and the subsequent need for injections and surgery of the plaintiff’s left shoulder.

2. [32]

   The plaintiff referring to Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] (“Wingfoot”), argued that the Panel failed to explain the actual path of reasoning by which it arrived at the opinion in fact formed and in sufficient detail to enable a court to see whether the opinion did or did not involve any error of law.

Determination

1. [33]

   In light of my conclusion on Ground 1, this ground of review can be dealt with succinctly.

2. [34]

   In Wingfoot, the High Court said at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ):

3. [35]

   The Panel stated at [96] (see [20] above) its reasoning as to the cause of the plaintiff’s shoulder pain. Having considered that paragraph in combination with the other paragraphs of the Panel’s reasons, read fairly and as a whole, I am satisfied that the reasoning process can be readily discerned. Those reasons are provided in sufficient detail and disclose the error of law which has been identified in Ground 1. There is no gap in the reasoning to be filled: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6] (Leeming JA, Meagher JA agreeing).

4. [36]

   Ground 2 is dismissed.

Conclusion and orders

1. [37]

   As to costs, it is appropriate that the first defendant be provided with an opportunity to be heard on the form of any costs order to be made.

2. [38]

   Accordingly, I make the following orders:

   1. (1)

      Set aside the second defendant’s decision made on 4 July 2025.

   2. (2)

      Remit the matter to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted review panel under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) for redetermination according to law.

   3. (3)

      As to costs: