Buestami v Allianz Australia Finance Ltd

1. [1]

   By a Summons filed on 6 December 2024, the plaintiff, Heri Marlis Buestami, seeks judicial review of a Review Panel Certificate dated 12 September 2024. All named defendants filed submitting appearances and did not make any submissions to the Court.

2. [2]

   The Review Panel was constituted after a delegate of the President of the Personal Injury Commission decided, on 2 December 2022, to accept a Review Application lodged by Allianz Australia Insurance Limited ("Allianz"), the first defendant, with respect to a Medical Certificate issued on 28 September 2022 by Dr Yu Tang Shen.

3. [3]

   The Review Panel was constituted by a member with legal qualifications and two medical assessors.

Relief Sought

1. [4]

   The relief sought in the summons was in the following form:

Grounds for Relief

1. [5]

   Two grounds were nominated for the relief. They are in the following terms:

Factual Background

1. [6]

   It is appropriate to briefly recount the factual background so as to provide the context in which to consider these proceedings and the plaintiff's submissions.

2. [7]

   In 2002, the plaintiff was involved in a motor vehicle accident. When ultimately assessed, he was found to have a 1% whole person impairment relating to that accident.

3. [8]

   Many years later, whilst working as a driver for the Iraqi Consulate, on 5 October 2017, the plaintiff was involved in a second motor vehicle accident. He ceased working due to his injuries and disabilities. He claimed compensation for his whole person permanent impairment.

4. [9]

   On 24 September 2020, Dr Jager assessed him as having a 9% whole person impairment as a consequence of Post-Traumatic Stress Disorder (“PTSD”) sustained in that second motor vehicle accident. A certificate was issued on 16 October 2020.

5. [10]

   At a time which has not been clearly identified or articulated, but after the second motor vehicle accident, the plaintiff was bitten by a dog. This event led to further psychiatric symptoms.

6. [11]

   The plaintiff claimed that by November 2021 his PTSD had deteriorated, and that a further assessment should be undertaken. The deterioration was disputed by Allianz, the insurer of the at-fault car in the second motor vehicle accident. It was following this dispute between the plaintiff and Allianz about the extent, if any, of the further deterioration to the whole person impairment determined by Dr Jager, that the Medical Certificate and Review Panel assessment the subject of these proceedings took place.

7. [12]

   It is appropriate, before considering the grounds, to describe the Review Panel assessment.

Review Panel Assessment

1. [13]

   The Review Panel determined that it was appropriate for it to re-examine the plaintiff. That re-examination ultimately took place on 4 March 2024 when two members of the Panel, being the two medical assessors, re-examined the plaintiff.

2. [14]

   It is not clear from the statement of reasons of the Review Panel how, or if at all, the legally qualified member participated in, or was informed of, the results of that medical re-examination. The way in which the statement of reasons is expressed does not reveal what role, if any, was played by the legal member or how the legal member was informed, for the purpose of participating in the decision, about the results of the re-examination. However, no point is taken about that in these grounds.

3. [15]

   In the course of the Panel's review, after clinically examining the plaintiff, during which a mental state examination took place and an assessment of his current functioning occurred by a method of questions and answers, the Panel reviewed the significant documentation with which it had been provided. It set out its comments with respect to the range of documents which it reviewed. Those comments included the following:

4. [16]

   The reference to Dr Canaris was a reference to a report he wrote on 7 July 2023, in which he had assessed the plaintiff's whole person impairment at 27%.

5. [17]

   The Panel moved to its determinations. Those determinations included these remarks:

6. [18]

   The Panel then referred to causation and their obligation with respect to it, which is largely the subject of ground 1.

7. [19]

   The Panel then came to assess the degree of permanent impairment. It did so by reference to the psychiatric impairment rating scales which are contained in the Motor Accident Permanent Impairment Guidelines (“the Guidelines”). Of central relevance is that the degree of permanent impairment for the category of travel was classified as number 2. The reason for that decision included the following:

8. [20]

   Together with the other five categories, an aggregate score of 15 was reached, which resulted in a whole person impairment of 8%.

9. [21]

   Under the heading in the report "Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment", the Panel recorded:

Ground 2 - Discernment

1. [22]

   The plaintiff submits, both in writing and orally, in accordance with ground 2 of the Summons, that the Review Panel constructively failed to exercise its jurisdiction and its statutory function because it misapprehended and misapplied the Guidelines by undertaking an assessment in a way which did not follow the obligations contained in cl 1.21 of the Guidelines, cl 1.34 of the Guidelines, cl 1.220 of the Guidelines and Figure 2.

2. [23]

   It seems to me that the Guidelines are quite clear in this area, and I will refer to them. Clause 1.21 is in the following form:

3. [24]

   Clause 1.34 provides as follows under the heading "Subsequent Injuries":

4. [25]

   Clause 1.220 of the Guidelines provides that the standard form, which is in Figure 2, must be used when calculating permanent psychiatric impairment and by the use of the psychiatric impairment rating scale.

5. [26]

   Figure 2, which appears at page 52 of the Guidelines applicable at the time, is, it must be said, disarmingly simple. It requires the identity and specification of the psychiatric diagnoses, then with respect to each of the six categories on the psychiatric impairment rating scale, a fixing of their class and the reasons for that decision. It then requires, in accordance with the provisions of the Guidelines, a calculation of the percentage whole person impairment relating to the aggregate score determined by reference to those classifications.

6. [27]

   The following then occurs: that where there is any pre-existing or subsequent impairment, if either or both are applicable, a percentage whole person impairment is determined in the same way as it is with respect to the determination of the impairment as a whole. The classes are listed, a score is determined, a percentage whole person impairment is identified and, where the review panel thinks it appropriate, a final whole person impairment percentage is fixed by reference to the first calculation, namely, the existing impairment of the whole person, followed by a deduction for the whole person impairment referable to the subsequent event. I attach a copy of Figure 2 to this judgment labelled “Annexure A”.

7. [28]

   However, that is not what happened in the challenged Review Assessment Panel’s Certificate.

8. [29]

   First, contrary to the obligation in cl 1.21 of the Guidelines, the Review Panel at no time determined the extent of the whole person impairment as it existed at the time of their assessment. Secondly, at no time, as required by cl 1.34 of the Guidelines, did the Review Panel determine the whole person impairment relating to the subsequent event, namely, the unrelated event of a dog bite; nor did it then undertake a calculation which reflected the obligations in the Guidelines as appear in diagrammatic form in Figure 2.

9. [30]

   Rather, in a convoluted way, contrary to that provided in the Guidelines, the Review Panel sought to “set aside”, to use its terms, any impairment related to the subsequent dog bite event because the Review Panel concluded that the adjustment disorder which it diagnosed as relating to that event was wholly unrelated to the motor vehicle accident.

10. [31]

    Accordingly, the result produced by the Review Panel was not an assessment which accorded with either of the requirements of the Guidelines. It clearly mistook its obligation, and it has produced a Certificate which does not reflect the jurisdiction which it is obliged to exercise. It is erroneous at law, and it constitutes a failure to properly exercise its jurisdiction.

11. [32]

    For that reason alone, the review panel Certificate must be set aside and the relief sought by the plaintiff granted.

Ground 1

1. [33]

   I should say something about ground 1. Ground 1 involved a somewhat complex submission in which the plaintiff sought to engage an obligation said to exist at common law as a consequence of a number of decisions, but particularly the decision of Malcolm CJ in the Supreme Court of Western Australia in State Government Insurance Commission v Oakley (1990) 10 MVR 570, the decision of the New South Wales Court of Appeal in Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202; (2015) 71 MVR 454 and the decision of the Wright J in Slade v Insurance Australia Ltd t/as NRMA [2020] NSWSC 1031; (2020) 93 MVR 378.

2. [34]

   In the absence of any submissions from any contradicting party, and in light of the complexity of the issues surrounding causation which the plaintiff sought to raise, it is best that I express no opinion on these complex issues. It is sufficient for me to say that it is difficult to accept that, even if the plaintiff’s arguments are correct, and they may well be, any error on the face of the record is apparent. However, as I have earlier said, I do not need to consider the merits of ground 1 because, even if upheld, it would lead to no different consequence.

Conclusion

1. [35]

   I conclude by expressing my view that it is unfortunate that the Review Panel, of which a lawyer was a member, does not seem to have undertaken its ordinary and routine task of making an assessment which accorded with the procedure mandated by the Guidelines. Perhaps it is the absence of any separate report setting out the assessment of the two medical members which led to utter confusion about the proper exercise of its jurisdiction when the Panel produced its report. However, there is no need to reach a final conclusion about that.

Orders

1. [36]

   The plaintiff is entitled to the relief he sought and, accordingly, I make the following orders:

   1. (1)

      Order in the nature of certiorari quashing the decision and the consequent Review Panel Certificate of the second defendant, namely the certificate and decision dated 12 September 2024 in matter R‑M10541496/22.

   2. (2)

      Remit the matter to the third defendant, the President of the Personal Injury Commission of New South Wales, for re-allocation of the matter to a differently constituted Review Panel for determination of the matter according to law.

   3. (3)

      No order as to costs.