Mahroei v QBE Insurance (Australia) Limited

1. [1]

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

2. [2]

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

3. [3]

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

Background

1. [4]

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

2. [5]

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

3. [6]

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

4. [7]

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

5. [8]

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

6. [9]

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

7. [10]

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

8. [11]

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

9. [12]

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

10. [13]

    In her written reasons, Assessor Paisley stated:

11. [14]

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

12. [15]

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

13. [16]

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

14. [17]

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

15. [18]

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

16. [19]

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

17. [20]

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

18. [21]

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

19. [22]

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

20. [23]

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

21. [24]

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

22. [25]

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

23. [26]

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

The summons

1. [27]

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

   1. (1)

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

   2. (2)

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

2. [28]

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

Statutory framework

1. [29]

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

2. [30]

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

3. [31]

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

4. [32]

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

5. [33]

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

6. [34]

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

7. [35]

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

8. [36]

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

The judicial review

1. [37]

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

2. [38]

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

3. [39]

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

4. [40]

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

5. [41]

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

6. [42]

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

Judicial review grounds 1 and 2

1. [43]

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

2. [44]

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

3. [45]

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

4. [46]

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

5. [47]

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

6. [48]

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

7. [49]

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

8. [50]

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

9. [51]

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

10. [52]

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

11. [53]

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

12. [54]

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

13. [55]

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

14. [56]

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

15. [57]

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

16. [58]

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

17. [59]

    There is no doubt that the Medical Review Panel has an obligation to afford procedural fairness. The function of the Review Panel is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise (Wingfoot).

18. [60]

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

19. [61]

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

20. [62]

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

21. [63]

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

22. [64]

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

23. [65]

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

24. [66]

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

25. [67]

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

26. [68]

    Judicial review grounds one and two fail.

Judicial review grounds 3 and 5

1. [69]

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

2. [70]

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

3. [71]

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

4. [72]

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

5. [73]

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

6. [74]

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

7. [75]

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

8. [76]

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

9. [77]

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

10. [78]

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

11. [79]

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

12. [80]

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

13. [81]

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

14. [82]

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

15. [83]

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

16. [84]

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

17. [85]

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

18. [86]

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

19. [87]

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

20. [88]

    Judicial review grounds three and five fail.

Judicial review ground 4

1. [89]

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

2. [90]

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

3. [91]

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

4. [92]

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

5. [93]

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

6. [94]

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

7. [95]

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

8. [96]

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

9. [97]

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

10. [98]

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

11. [99]

    Judicial review ground four fails.

The result

1. [100]

   The plaintiff’s application for judicial review fails.

Costs

1. [101]

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

   1. (1)

      The plaintiff’s summons filed 21 August 2024 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs.