Jarvis v Allianz Australia Insurance Limited

1. [1]

   BELL CJ: I agree with the reasons of Basten AJA and with the orders his Honour proposes.

2. [2]

   BRERETON JA: On 4 May 2011 the appellant Maxwell Jarvis was involved in a motor vehicle accident on the Grafton bridge when his stationary vehicle was struck from behind by a bus. He was hospitalised for minor physical injuries to the neck and shoulder, but they quickly resolved. Subsequently, however, he developed psychological symptoms. He brought a claim for compensation under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”). Liability was admitted by the first respondent insurer Allianz (“the Insurer”), but there was a dispute as to whether Mr Jarvis’ whole person impairment (“WPI”) exceeded the 10% threshold for economic loss. [1]

3. [3]

   Following reference of the dispute to the State Insurance Regulatory Authority (“SIRA”) Medical Assessment Service, [2] an Assessor issued a certificate on 4 October 2019 that Mr Jarvis suffered an injury giving rise to a permanent impairment greater than 10%, namely “psychological/psychiatric - Adjustment disorder with anxiety; PTSD; Major Depressive Disorder”. The Assessor’s reasons referred to Mr Jarvis’ substantial history of traumatic accidents: he had directly or indirectly experienced multiple previous motor accidents – up to thirty; he had observed one while an adolescent that involved multiple fatalities; and during his career as a racing car driver, at an elite level, had had at least five serious accidents, including one in which his car caught fire and another in which he was trapped for three hours. But the Assessor noted that he denied any psychological or psychiatric condition prior to the Grafton accident, and that there was no evidence to contradict his denial. He observed (emphasis added):

4. [4]

   Considering the diagnostic criteria for post-traumatic stress disorder (“PTSD”) according to the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”), the Assessor addressed Criterion A (which requires a traumatic event, and is addressed in further detail below) as follows:

5. [5]

   As to Criterion B (which requires presence of intrusion symptoms associated with the traumatic event(s), beginning after those events occurred), and Criterion C (which requires persistent avoidance of stimuli associated with the traumatic event(s), beginning after those events occurred), he said:

6. [6]

   Elaborating his reasoning, the Assessor explained:

7. [7]

   The Insurer applied to a Proper Officer for a review of the Assessor’s decision. [3] It challenged the diagnoses and the quantum of impairment certified by the Assessor, relying on inconsistencies in Mr Jarvis’s accounts and the fact that his nightmares related to accidents other than the Grafton accident, and arguing that his history of impulsivity, distractibility and irritability was referable to his ADHD and not to the Grafton accident. Mr Jarvis’ response included that the Assessor had found that he suffered nightmares which thematically related to the Grafton accident, and that the Insurer had not addressed the logical connection between the onset of his nightmares immediately following the Grafton accident and the occurrence of that accident.

8. [8]

   The Proper Officer was satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, and referred the application to a review panel of three medical assessors. [4] The third respondent is the Medical Review Panel which conducted the review (“the Panel”). It found that Mr Jarvis had symptoms of PTSD, but that the Grafton accident was on any view only a minor one, which did not satisfy the Criterion A definition of an “event” such as to be capable of founding a diagnosis of PTSD, whereas earlier trauma in Mr Jarvis’ life (in particular, the motor racing accident involving a fire) did satisfy that definition. Although the Panel accepted that Mr Jarvis had PTSD it concluded that it resulted from stressors which preceded the Grafton accident, and that the Grafton accident had made a “less than negligible contribution” to it:

9. [9]

   The Panel therefore revoked the Assessor’s certificate and issued a new certificate that:

10. [10]

    Mr Jarvis sought judicial review of the Panel’s decision under Supreme Court Act 1970 (NSW), s 69. He argued, inter alia, that the Panel failed to engage with the evidence and submissions, and in particular his argument that the accident “triggered” his PTSD symptoms which were not previously manifest. McCallum JA (as her Honour then was, sitting as a judge of the Common Law Division) dismissed the proceedings. Her Honour held that while there was a sufficiently articulated argument presented on behalf of Mr Jarvis that the accident was causative of his psychiatric injury in that it “triggered” PTSD symptoms which were not previously manifest, [5] the Panel was not required to explain why it took a different approach from the Assessor, [6] was not required to explain why it did not reach an opinion it did not form, [7] was not obliged to refer to every piece of evidence or every passage advanced, [8] and was required to do no more than respond to Mr Jarvis’ argument that “he had developed nightmares following this accident and therefore the logical connection was they were due to the accident”, which it did in the passage extracted above. [9]

11. [11]

    Mr Jarvis appeals to this Court. Although the amended notice of appeal contains seven enumerated grounds, only three were elaborated in written submissions, and of them the only one which need be addressed is that her Honour erred in failing to hold that the Panel had failed to engage with a substantial argument that had been advanced founded on the evidence. [10]

Failure to respond to a substantial argument

1. [12]

   A failure to respond to a substantial argument can amount to jurisdictional error either because it involves a denial of procedural fairness or because it amounts to a constructive failure to exercise jurisdiction. [11]

2. [13]

   A central – and ultimately dispositive – issue for the Panel was whether the Grafton accident “caused” Mr Jarvis’ psychiatric impairment in the relevant sense.

3. [14]

   As to causation, the applicable Guidelines provided the following guidance for the Panel: [12]

4. [15]

   Thus it suffices if the accident materially contributed to worsening the impairment.

5. [16]

   Before us, Senior Counsel for the Insurer accepted that it was plain that causation of psychiatric symptoms was squarely in issue. As the primary judge accepted, it was Mr Jarvis’ case before the Panel that the circumstance that he was asymptomatic before the Grafton accident but experienced PTSD symptoms after it – albeit that those symptoms related not only to the Grafton accident but also the earlier traumas – was indicative that his impairment was caused, in the relevant sense, by the Grafton accident. It was obvious that Mr Jarvis had been exposed over his lifetime to numerous traumatic incidents, at least some of which were capable of being a Criterion A event. However, although there had been many such potential events, in fact he was asymptomatic before the accident but symptomatic after the accident. His case was that the manifestations of symptoms post‑accident, when they were absent pre‑accident, pointed to the accident being a relevant event or trigger for his PTSD, and thus at least contributing to his impairment. The chronology was eloquent proof of that proposition.

6. [17]

   In recording Mr Jarvis’ “Pre-Accident Functioning”, the Panel noted, and did not reject, his denial of psychiatric symptoms before the Grafton accident:

7. [18]

   Then, in describing his “Current Symptoms”, the Panel recorded, and did not reject, his account of the onset of symptoms after the Grafton accident (emphasis added):

8. [19]

   The Panel’s dispositive reasoning is contained in the following section:

9. [20]

   In essence, that reasoning contains the following relevant elements:

   1. (1)

      the Grafton accident was not sufficiently severe to satisfy Criterion A;

   2. (2)

      Mr Jarvis had symptoms of PTSD;

   3. (3)

      Mr Jarvis had been involved in other much more traumatic incidents before the Grafton accident; and

   4. (4)

      his PTSD appears to have resulted from the other significant stressors in his life which pre-dated the subject accident.

10. [21]

    There was, however, a major rational obstacle to that reasoning, namely that he was asymptomatic before the Grafton accident, and first experienced symptoms after it, and those symptoms were referable in part to the Grafton accident. This is not mere post hoc ergo propter hoc reasoning. It may be accepted that it does not necessarily follow that because event B occurs after event A, that A caused B. However, depending on the context, a temporal sequence of events may be illustrative of the presence or absence of a causal connection. On the one hand, it can certainly be said that if event B occurs before event A, A did not cause B. On the other, for example, if a person was uninjured before a motor accident but after it emerged from a crushed car with shattered limbs, it would not be difficult to conclude that the accident caused the fractures. In this case, the relevant sequence was that while there were traumatic events before the Grafton accident, there were no PTSD symptoms until after the Grafton accident, and those symptoms included some which were referable to the Grafton accident (such as dreams that related thematically to the Grafton accident, and avoidance of the Grafton bridge where it occurred), as well as symptoms referable to earlier incidents.

11. [22]

    While concluding that the Grafton accident was not sufficiently severe to qualify as an “event” for the purposes of Criterion A, nowhere does the Panel refer to the temporal sequence and its significance. Nor does it address the argument that even if the PTSD is referable to earlier traumatic incidents, the onset of symptoms, which included some that appear referable to the Grafton accident, was triggered by the Grafton accident – which, as will be discussed, would constitute a “worsening” of the impairment as contemplated in the Guidelines. [13]

12. [23]

    I entirely accept that a Review Panel is not required to give elaborate reasons, nor to address every aspect of the evidence, and that its reasons are not to be scrutinised with a close eye for error. However, where a substantial argument on a critical issue is addressed to it, some engagement with that issue is required. Here, although, as has been mentioned, it noted (and did not reject) Mr Jarvis’ account that he was symptom-free before the accident and had symptoms after it, there is nothing to indicate that the Panel engaged at all with the implications of that chronology.

13. [24]

    I do not accept that engagement with that argument is implicit, as the respondent submitted, in the first paragraph of its “Deliberations”, set out above. [14] That paragraph is not at all concerned with the temporal sequence, but only with the identification of a sufficiently serious “event” to satisfy Criterion A. Indeed, the passage quoted by the Panel from DSM-5 is not the Criterion itself, but an extract from the commentary on the diagnostic criteria. The commentary also explains that (emphasis added):

14. [25]

    The extract cited by the Panel contains a non-exclusive list of examples of Criterion A events. The list provided is an inclusive one, and Criterion A events are expressly stated to be “not limited to” those examples. What is definitive is the Criterion itself. There are 8 criteria, denoted A through H; Criterion A pertains to the traumatic event, and the others to the symptoms. Criterion A is as follows:

15. [26]

    It will be noted that exposure to threatened serious injury suffices. Thus it would suffice if there were “Exposure to … threatened … serious injury … [by] directly experiencing the traumatic event(s)”. In this respect, as has been noted, the Assessor recorded that while the Grafton accident was a relatively minor one, it was “one in which he feared that significant injury might have occurred.” The “risk factors” described in DSM-5 include “exposure to prior trauma”. Again, the Assessor had observed that “His previous multiple exposures to motor accidents may have led to vulnerability”. The Panel’s conclusion that the Grafton accident was not severe enough to qualify as a Criterion A event was made without adverting to the temporal sequence and its logical implications.

16. [27]

    Nor is such engagement implicit in the last sentence of the “Deliberations” section, also set out above, [15] which not only does not address, but serves to highlight the significance of, the chronology and its inconsistency with the Panel’s conclusion. The Panel accepted that Mr Jarvis had PTSD, but attributed it to pre-accident stressors. It simply does not address the point that until the accident he was asymptomatic. Yet PTSD is, after all, a name given to a constellation of manifest symptoms. Even if his PTSD was (as the Panel found) attributable to pre-accident stressors, the fact that his symptoms became manifest after the accident was necessarily relevant to whether the Grafton accident “caused or contributed to worsening of” [16] his impairment.

17. [28]

    In my view, the Panel has simply failed to appreciate that its conclusion sits uncomfortably with the temporal sequence. It has not engaged with and answered the logic of the chronology, but completely overlooked or ignored it. It has simply failed to engage with a theory that is inconsistent with its conclusion.

18. [29]

    The Panel’s reasons thus disclose that it failed to engage with Mr Jarvis’ argument that the chronology pointed to the accident as causing or materially contributing to his PTSD. Accordingly, in my opinion, the Panel failed to engage with a substantial argument put to it on a crucial issue. In those circumstances, it is, as Gleeson JA said in De Gelder: [17]

19. [30]

    As was the case in De Gelder, it may also be inferred that the Panel failed to apply itself to the real question to be decided in carrying out its statutory function under MACA, s 58(1)(d), because it overlooked a critical aspect of the evidence relevant to its determination. [18] On either basis, this was jurisdictional error, and the primary judged erred in failing to so conclude.

20. [31]

    In my view, the following orders should be made:

    1. (1)

       allow the appeal and set aside the orders of McCallum JA made on 24 February 2022;

    2. (2)

       in lieu thereof, quash the certificate of the third defendants dated 18 November 2020 and remit the review of the medical assessment of Assessor Andrews which is the subject of the certificate of 4 October 2019 to the second defendant to be referred to a review panel, differently constituted, to be dealt with according to law;

    3. (3)

       order that the first respondent pay the appellant’s costs of the appeal and of the proceedings in the Common Law Division.

21. [32]

    BASTEN AJA: The appellant, Maxwell Jarvis, sought to set aside a judgment of McCallum J in the Common Law Division delivered on 24 February 2022. That judgment dismissed an application for judicial review brought by the appellant with respect to a decision of a review panel under Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”). [19]

Background

1. [33]

   Mr Jarvis claimed damages for personal injury as a result of a low-speed minor rear end collision with the car he was driving which occurred on 4 May 2011. (It is convenient to refer to Mr Jarvis as the claimant.) His entitlement to damages for non-economic loss depended upon him establishing that he had suffered a degree of permanent impairment greater than 10% caused by the accident. [20] The assessment of his permanent impairment was required to be carried out by a medical assessor pursuant to the provisions of Pt 3.4 of the Act and relevant provisions of the Motor Accident Permanent Impairment Guidelines promulgated under the Act. He had no relevant physical injuries; his claim turned on whether the accident had caused a psychiatric disorder.

2. [34]

   The claimant, who had been involved in motor racing, had experienced at least five serious previous accidents, in one of which his car caught fire and in another of which he was trapped in his car for three hours.

3. [35]

   An initial medical assessment resulted in the issue of a certificate on 4 October 2019 in the following terms:

4. [36]

   On 22 November 2019, the respondent insurer filed an application for review of the medical assessment under s 63 of the Act. The application was made to the proper officer of the State Insurance Regulatory Authority. The insurer’s submissions accompanying the application challenged the diagnoses and the quantum of impairment. The insurer relied upon inconsistencies in the claimant’s accounts, the fact that his nightmares related to accidents other than the one the subject of the claim, and that the history of impulsivity, distractibility, irritability and difficulty remaining on task related to “his non-accident-related ADHD”.

5. [37]

   In response, the claimant submitted that “the assessor found that the claimant suffers nightmares which thematically relate to the accident” and that the insurer had omitted “the logical connection between the timing of the claimant’s nightmares immediately following the accident [and the accident]”.

6. [38]

   On 20 January 2020 the proper officer, being satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect, having regard to the particulars set out in the application, referred the application to a panel of three medical assessors (the review panel), as required by s 63(3).

7. [39]

   The review panel, comprising three psychiatrists, having undertaken a review of the evidence, including numerous conflicting medical reports, decided to conduct a further clinical examination of the claimant. That took place on 14 October 2020. On 18 November 2020 the review panel revoked the original assessment certificate and issued a new certificate determining that the whole person impairment was not greater than 10%, and that there was “nil diagnosed psychiatric disorder related to the motor accident”.

8. [40]

   A key passage in the reasons of the review panel read as follows:

9. [41]

   There is no appeal from the decision of the review panel, but judicial review is available in the Supreme Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Such a review is limited to jurisdictional error and error of law on the face of the record. The record, it may be accepted, includes the reasons given by the review panel for its ultimate determination, in accordance with s 69(4). The Supreme Court has no power to intervene on any other basis; its views of the merits of the claim are irrelevant.

10. [42]

    On 18 February 2021 the claimant commenced proceedings by summons in the Common Law Division seeking judicial review of the certificate issued by the review panel. The primary judge identified three grounds in the summons, as pursued in written submissions and at the hearing, each of which was said to reveal jurisdictional error, which she stated as follows: [21]

11. [43]

    The primary judge considered each of these matters and rejected them. The summons was dismissed with costs.

Issues on appeal

1. [44]

   The notice of appeal set out seven grounds, but grounds 1, 2 and 7 were generic and identified no specific error on the part of the primary judge. Ground 6 added nothing to ground 5. The other three grounds may be summarised as identifying error on the part of the primary judge in failing to identify relevant error on the part of the review panel in:

2. [45]

   In submissions, the claimant identified the “substantial argument” in ground 3 as the “temporal connection between the accident and the development of symptoms, and the lack of any pre-accident psychiatric symptoms”. [22]

3. [46]

   There was no attempt in this Court to identify with precision which grounds constituted jurisdictional error and which error of law on the face of the record. Ground 3 may well involve both: a failure to address a substantial argument based on facts as found or uncontested facts has been variously described as a failure to exercise a function conferred on the tribunal or as a failure to accord procedural fairness. [23] Either way it may be characterised as a jurisdictional error because it is a failure to exercise the function conferred by statute, namely to decide the medical dispute presented by the parties. However, the evidential basis for such a claim will usually depend upon a perusal of the “record”, including the reasons of the review panel, as it did in this case.

4. [47]

   Ground 4 appears to assert a breach of procedural fairness and therefore jurisdictional error. Ground 5 is best characterised as an error of law on the face of the record.

5. [48]

   It follows that it is necessary to identify the statutory function being exercised by the review panel, and the nature and scope of its reasons in order to establish the scope of any legal errors which may be revealed in the reasons.

Statutory function of Review Panel

1. [49]

   The decision of the review panel was that of a medical tribunal constituted by three psychiatrists. As senior counsel for the insurer correctly noted, the first step in addressing an alleged jurisdictional error is to identify the scope of the statutory function conferred on the tribunal. The statutory function, as explained in the review panel’s certificate, was to carry out a review under s 63 of the Act to determine whether the degree of permanent impairment of the claimant, as a result of the injury caused by the motor accident, was greater than 10%. Whilst the review panel’s jurisdiction was conferred by s 63 of the Act, the nature of the medical dispute was that identified in s 58(1)(d). The function of granting a certificate “as to the matters referred for assessment” is found in s 61(1).

2. [50]

   Importantly for present purposes, the function of the review panel was, at the relevant time, identified in the following terms:

3. [51]

   The function of the review panel was therefore twofold, namely to determine for itself (i) whether there was an “injury caused by the motor accident” and, if so, (ii) the degree of permanent impairment resulting from the injury.

4. [52]

   Given that statutory scheme, and as has been explained in previous cases, the function conferred on the review panel is that aptly identified by the High Court in relation to analogous Victorian legislation in Wingfoot Australia Partners Pty Ltd v Kocak [24] in the following terms:

5. [53]

   There can be little doubt that the review panel purported to undertake the precise statutory function conferred on it. So much was conceded by the references in the claimant’s submissions to a “constructive failure” to undertake its legal function. That failure depends upon an absence (so it was said) from the panel’s reasons of a particular explanation. However, to assess the validity of that approach, it is also necessary to identify the nature and scope of the obligation to give reasons.

6. [54]

   The obligation to give reasons is to be found in s 61(9) of the Act which provides that a certificate “is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate”. [25] Under the analogous Victorian legislation that obligation was described in Wingfoot in the following terms, drawing upon the earlier statement (set out above) of the function of the tribunal:

7. [55]

   There was no challenge to the adequacy of the reasons in the present case: rather, accepting that the reasons indeed set out the actual path of reasoning of the review panel, the claimant submitted that a substantial argument upon which he had relied was absent.

Ground 3: failing to address a substantial argument

1. [56]

   As noted above, the claimant identified the matter which was disregarded as “the temporal connection between the subject motor accident and the development of psychiatric symptoms, coupled with the lack of pre-accident symptoms, which supported the ‘triggering’ conclusion of both [the claimant’s treating psychiatrist and the original medical assessor]”. [26]

2. [57]

   The assumption underlying this submission is that medical science recognises as a substantial argument post hoc ergo propter hoc reasoning. This is often referred to as a logical fallacy; just because event B comes after event A, it does not follow that A caused B. There are three answers to the submission that the review panel did not have regard to such reasoning.

3. [58]

   The first response is that the review panel did in fact have regard to the underlying factual assumptions, namely that there were no pre-accident symptoms but there were post-accident symptoms. However, it treated as significant the fact that the post-accident symptoms, including dreams and flashbacks, related to incidents other than the minor accident in 2011.

4. [59]

   The second response is that the assessors reached their conclusion by reference to medical principles which were identified. The reasoning commenced by referring to criterion A of the diagnosis of post-traumatic stress disorder described in DSM-5. It was not in dispute that DSM-5 provided a relevant and appropriate basis for diagnosis of PTSD. If it matters, it may be noted that, in diagnosing PTSD, the original medical assessor considered each of criteria A-H of DSM-5 in order to be satisfied that it was an appropriate diagnosis. In fact, the point of departure between the medical assessor and the review panel was the conclusion reached by the panel that the claimant did not satisfy criterion A. Criterion A identified a non-exclusive range of potential events capable of triggering PTSD which included “severe motor vehicle accidents”, but nothing remotely like the minor bump which the claimant relied upon.

5. [60]

   On the basis that criterion A was not satisfied (a matter entirely for medical assessment) there would be no basis for this Court to interfere in the finding that the 2011 motor accident did not cause PTSD. That was a matter for medical judgment: no legal error was exposed in reaching that conclusion.

6. [61]

   However, it is far from clear that the panel limited its consideration to that issue. It noted that the symptomatology presented by the claimant included features of PTSD. It identified those features as “intrusive recollections of past motor accidents, nightmares, anxiety and avoidance”. It referred to a particular incident which involved an event consistent with criterion A of the diagnostic criteria for PTSD. It then turned to consider the multiple motor accidents which pre-dated the 2011 accident and “several significant stressors since the accident”. On one view, it relied upon all those considerations, including the existence of the current features of PTSD (symptomatology) before reaching its conclusion that the 2011 accident did not cause or materially contribute to the current symptoms of PTSD. In short, the factual premise that the panel did not address the temporal connection between the symptoms and the accident is contradicted by the reasons given by the panel. In applying its medical expertise, the panel implicitly, if not expressly, rejected the post hoc ergo propter hoc reasoning relied on by the claimant.

7. [62]

   The third response is that a finding as to a lack of a sufficient causal connection is essentially a factual finding which is not open to review as such. There is no suggestion that the reasoning of the review panel was inadequate. In so far as it rejected a finding of PTSD caused by the accident, it departed from the somewhat tentative contrary conclusion reached by the original assessor. He had stated in his reasons:

8. [63]

   It was undoubtedly open to the review panel to make a different finding.

9. [64]

   In short, ground 3 is little more than an invitation to review the medical opinion of the review panel on the basis that it failed to apply a logical fallacy which was not consistent with the relevant diagnostic criteria. The ground must be rejected.

Ground 4: procedural fairness

1. [65]

   Ground 4 asserted that the panel decided his claim on a basis of which he had no notice. That is an assertion of denial of procedural fairness. However, the content of the obligation to accord procedural fairness is a function of the statutory context in which the issue arises. Section 63(3A) states that a medical assessment “is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.” The effect of that provision is that a review panel undertakes a fresh assessment. It generally precludes the proposition that a claimant must be given “notice” of a dispositive issue which is in dispute, although there may be occasions on which some issue has been conceded by the insurer and not addressed by the claimant for that reason. No such argument was available in the present case.

2. [66]

   As the primary judge noted, this appeared to be a complaint that “it was not at all apparent from [the insurer’s submissions] that the application for review related to causation of PTSD”. [27] That inconsistency in approach was partly recognised in this Court, the claimant’s submissions stating that the lack of notice point was “taken in the alternative and somewhat prophylactically”. [28] What precisely was meant by that qualification was and remained unclear: little reference was made to this ground in oral submissions. But if it were presented as an alternative formulation of the earlier ground, it was nevertheless unavailable as invoking procedural unfairness.

3. [67]

   Further, the factual premise was missing. That a causal connection between the 2011 accident and the claimant’s current psychiatric conditions was in issue, was clear from the passages in the insurer’s statement in support of its application for review set out above. The causal link was an important and obvious issue addressed in several of the competing medical opinions provided to the medical assessor and to the review panel.

4. [68]

   Ground 4 was without substance.

Ground 5: failure to comply with Guidelines

1. [69]

   Ground 5 asserted that the review panel failed to make an assessment of all the matters with which the medical assessment was concerned, pursuant to s 63(3A).

2. [70]

   As the primary judge correctly noted, that section does not require a review panel to address matters which do not arise because the panel has formed an adverse view of the claim for reasons not requiring resolution of those matters.

3. [71]

   Accepting that lack of causation was the basis of the review panel’s decision, the claimant asserted that there had been a failure to follow cll 1.6 and 1.7 of the Motor Accident Permanent Impairment Guidelines. The definition of causation contained in cl 1.6 is curiously obscure, referring to “a physical, chemical or biologic[al] factor [which] contributed to the occurrence of a medical condition”. The issue for a review panel will be whether the motor accident caused or materially contributed to the injury, which is the subject of cl 1.7. Clause 1.7 of the Guidelines states that “[t]he motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible”.

4. [72]

   The claimant failed to establish that the review panel failed to apply this guideline, the panel having expressly stated its conclusion that the causal contribution, if any, was “less than negligible”. It clearly had the language of cl 1.7 in mind in referring to a non-negligible contribution in determining causation.

5. [73]

   The claimant sought to draw some support for the alleged error on the part of the primary judge by reliance on the way in which she dealt with the Guidelines. The reasoning appears in two parts, the first of which read as follows:

6. [74]

   That passage was clear and sufficient to dispose of ground 5. However, the judge continued:

7. [75]

   The judge’s reasoning in this regard is elliptical. It may be that she understood the review panel to have determined that because criterion A of the diagnostic criteria for PTSD had not been satisfied, the accident did not qualify as capable of causing or contributing to that medical condition. As suggested above, that is one reading, but not the only available reading, of the panel’s reasons. It may have been put forward by the primary judge as an alternative to the previous conclusion that the panel found that “the injury was not caused by the accident”, as noted in [49] of her judgment (emphasis added). On neither approach was the judge’s reasoning erroneous.

8. [76]

   The usefulness, if not the accuracy, of the definition of causation relied on in cl 1.6 might be questioned. It seems likely that in most cases the two-stage approach would be unnecessary and sometimes inappropriate. Nothing turns on the operation of cl 1.6 for present purposes. Clause 1.7 commences with the qualification that “[t]here is no simple common test of causation that is applicable to all cases”. That statement is sufficient to remove any obligation to follow a particular approach which may be inferred from the language of cl 1.6.

9. [77]

   There was no substance to ground 5.

Conclusion

1. [78]

   It follows that the appeal must be dismissed. The appellant must pay the respondent’s costs in this Court.