Allianz Australia Insurance Limited v Bell

The plaintiff, Allianz Australia Insurance Limited, (“the Insurer”), has brought proceedings for judicial review of a decision of the Review Panel (“the Panel”) that led to a Certificate issued on 13 April 2023. In that Certificate, the Panel assessed Mr Bell’s whole person impairment to be 19%. The medical dispute between Mr Bell and the Insurer was the degree of permanent impairment that has resulted from the psychological injury caused by the motor accident. There is also a live issue that will require legal determination as to what comprised “the motor accident”.

The Insurer asserts that the Certificate is invalid and should be set aside. Mr Bell opposes the relief sought in the summons. The Panel and the President of the Personal Injury Commission filed submitting appearances.

For the reasons that follow, I have concluded that the relief sought should not be granted and the Insurer’s summons is dismissed with costs.

Basten AJ provided a concise summary of the underlying facts and the first phases of the dispute in Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108 (“Bell”) at [2] to [4]:

On 18 August 2022, Basten AJ set aside the President’s decision and remitted the matter for determination according to law. His Honour concluded that there was a basis in the assessor’s reasoning that should have given rise to a reasonable suspicion on the part of the delegate that the assessment made was incorrect in a material respect. His Honour concluded that the assessor had either wrongly taken it upon himself to decide that the threats and intimidation, and resulting Post-traumatic stress disorder (“PTSD”), were not part of the motor accident, or there was a failure to exercise jurisdiction because the assessor failed to carry out his statutory function and provide a whole person impairment assessment, having not determined the scope of the motor accident. Either way, there was apparent error.

A delegate of the President referred the matter to a review panel on 17 October 2022, being satisfied, (no doubt with the assistance of Basten AJ’s analysis), that there was reasonable cause to suspect that the assessment was incorrect in a material respect.

The Panel met by teleconference on 8 February 2023 and determined that a further interview of Mr Bell was needed and additional documentation required. The Panel examined Mr Bell by video conference on 5 April 2023.

On 13 April 2023, the Panel issued a Certificate with reasons, certifying that Mr Bell’s PTSD and Major Depressive Disorder were caused by the motor accident and gave rise to an assessed whole person impairment of 19%.

The State Insurance Regulatory Authority Motor Accident Guidelines (“the Guidelines”) cll 6.17 and 6.18 provide for evaluation of impairment:

The Guidelines also provide at cll 6.40 and 6.41 for what is required of the Panel to make an assessment of consistency in relation to a claimant’s clinical presentation:

Section 7.21 of the Motor Accident Injuries Act 2017 (NSW) (“the Act”) provides for assessment of the degree of permanent impairment:

Section 7.26(5) to (7) provides relevantly for review of a medical assessment by a review panel:

The task of the Panel was correctly stated by the Panel in its Certificate to be: “to address the question as to whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%”.

In the Certificate, the Panel set out the background, the conduct of the review, (including a teleconference between the Panel members in February 2023), and the documents considered, which included the clinical records of Mr Bell’s treating psychologist and psychiatrist. It was decided that it was not possible to reach a decision on the papers, and so a re-examination took place by video on 5 April 2023. A psycho-social history was noted, as well as a history of the motor accident, the symptoms and treatment following the accident, Mr Bell’s current symptoms, pre-accident functioning and his current and proposed treatment, which included regular psychiatric sessions and medication. Findings on clinical examination were recorded, as well as an analysis of current functioning.

Specific and separate comment was made by the Panel on the question of the consistency of Mr Bell’s presentation with information and observations of non-clinical activities, as required by cll 6.40 and 6.41 of the Guidelines.

Under the heading “Panel Deliberations”, the Panel considered the DSM-5 criteria and how Mr Bell’s condition corresponded to the conditions that they diagnosed. The Panel also addressed the issue of causation, which is, I interpolate, a necessary part of carrying out an assessment of whole person impairment. This is entirely different from, and separate to, any kind of analysis as to what comprised the “motor accident”. It is a clinical assessment necessary for the task for which the Panel had been retained.

It is important that the Panel avoid any stepping into the arena of determining what is the “motor accident”, as noted by Basten AJ in the 2022 decision in Bell at [12]:

The issue for consideration here in terms of the correctness or otherwise of the approach of the Panel could be framed more succinctly as: (i) whether the Panel made findings about causation by reference to the physical event or events as it should have, (leaving for the Court to determine whether or not the events constituted a motor accident); and (ii) in doing so, whether the Panel’s reasons are adequate and the requirements of the Guidelines have been properly considered and addressed.

The assessment made by the Panel, (incorrectly stated in the Certificate to have been made under s 63(4) of the Motor Accidents Compensation Act 1999 (NSW), although no complaint is made about this), was that “the following injuries caused by the motor accident give rise to a permanent impairment of 19%”: “major depressive disorder and post-traumatic stress disorder”.

As highlighted in the written submissions of Mr Catsanos SC for Mr Bell, the Panel’s use of the umbrella term “motor accident” in its Certificate does not imply that the Panel has made any assessment of what comprised the motor accident. The Panel has to use some point of reference for the question referred to it for clinical (as opposed to legal) assessment. The focus of the analysis needs to be on what the Panel was assessing and whether that assessment was responsive to the requirements and parameters of its statutory function.

The summons sets out five grounds for review that can be reduced to the following:

The Insurer submitted that the Panel purported to determine the scope of the motor accident simply by stating that the psychological injury was caused by “the subject motor accident”.

I do not agree. As submitted by Mr Catsanos, it is of course necessary to read the Certificate as a whole. The Certificate is divided into headings. The references to the “motor accident” in the Certificate is nothing more than as a general descriptor. It is not purporting to address any argument about what does or does not constitute a motor accident as a matter of law. Contextually, the Panel simply described under the appropriate heading Mr Bell’s account of the physical event. In its “Deliberations” part of the Certificate, the Panel referred to Mr Bell expressing distressing memories of “the event”.

Elsewhere in the Certificate when dealing with causation, the Panel referred to the accident being of sufficient severity to give rise to the specific psychiatric diagnoses and, in that context, explained its conclusion that the subject motor accident was the substantial cause of the psychiatric injuries.

These are clinical findings that are a necessary part of the Panel’s function. There must be some descriptor used, otherwise any conclusion would be meaningless and not tethered to any basis for a causation conclusion to be made at all.

I accept the submission of Mr Catsanos that using these descriptors to explain the Panel’s findings and conclusions is consistent with the direction provided by the prevailing authorities when addressing what is considered to be the causative event. The Panel was not purporting to determine the legal issues around the scope of a motor accident under the Act.

Clearly, the Panel proceeded on the basis that what it described as the accident was a single causative event. The forensic dissection suggested by the Insurer was neither appropriate nor even realistically possible. As soon as the Panel embarked on any kind of division of events, it would give the appearance that it was performing exactly the kind of legal evaluation the Insurer says it should not.

The Insurer’s submissions about what Mr Bell did and did not say about what he thought about the perpetrator, and/or the consistency or otherwise of that particular aspect of the history, is a matter for determination by the ultimate factfinder. It does not bear upon the assessment of the approach taken by the Panel on the history that it received and accepted in the exercise of the Panel members’ clinical judgement.

No jurisdictional error is disclosed.

The Insurer complained in its submissions that the Panel failed to expose the actual path of reasoning for its decision as required by the authorities, in particular Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”). The Insurer complained that there is inadequacy because the Panel failed to explain which events constituted the motor accident, and in failing to do so it has not completed the task required of it. Second, the Insurer complained that the Panel failed to explain why it accepted Mr Bell’s self-reporting on the day of its examination about the events surrounding the motor accident, rather than other purported descriptions of those events that the Insurer asserted were “inconsistent with the self-reporting”.

The Insurer asserted that there was inconsistency between what Assessor Samuell reported Mr Bell told him he was worried about and what Assessor Jones reported Mr Bell told him he was worried about, as opposed to what Mr Bell said to the Panel. The Insurer complained that it was therefore not open to the Panel to conclude that Mr Bell’s presentation was internally consistent and consistent with the documentation provided.

These arguments are misconceived. The task of the Panel was to assess the degree of permanent impairment pursuant to s 7.21 of the Act.

As stated by the Court in Wingfoot at [47]:

In issuing its Certificate pursuant to s 7.23(1) of the Act, the Panel was required to set out the reasons for any finding as to any matter certified in the Certificate see: Flanagan v Allianz Australia Insurance Ltd [2022] NSWSC 1374 at [15] to [18] per Chen J.

It is clear that the Panel in fact provided its reasons for the finding that Mr Bell has a 19% whole person impairment. Those reasons are clearly and expressly articulated in the “Reasons for Decision” parts of the Certificate (pages 10 to 13), explaining the determination using the Psychiatric Impairment Rating Scale.

The reasons of an administrative decision-maker are meant to inform and not be scrutinised in overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6.

The Court in Wingfoot at [55] also dealt with this issue:

I accept the submissions of Mr Catsanos to the effect that the Panel indicating what it is evaluating (in making its medical assessment) by using the terms “motor accident”, “accident” and “subject motor accident” does not suggest ambiguity. The reference is clear and no further explanation is required.

The factual issue of whether Mr Bell’s account to the Panel is in fact inconsistent with earlier accounts is a matter of controversy which is for determination in the ultimate disposition of the claim. It is not a matter for the Panel to provide a legal determination in that regard. The Insurer’s submissions suggest that it is. It would have been inappropriate and beyond the scope of the Panel’s remit to cross-examine Mr Bell about his account of events. It is a different concern and consideration to that dealt with in cll 6.41 of the Guidelines and is different again to considerations of causation, both of which are within the realm of clinical assessment.

The focus of any question about adequacy of reasons needs to be upon the path of reasons by which the Panel arrived at the opinion formed on the medical question under consideration in sufficient detail to enable a court to see whether the opinion does or does not incorporate an error of law: Lederer v Insurance Australia Limited trading as NRMA Insurance ACN 000016722 [2022] NSWSC 322 (“Lederer”) at [35] per Brereton JA.

Consistent with the authorities, the Panel did disclose its path of reasoning and the premise upon which it proceeded to lead to the assessment it made.

This ground has no merit and is dismissed.

The Insurer submitted that the obligation to evaluate the evidence before the Panel involved an obligation to consider certain matters, which required that the assessor intellectually engage with and evaluate that evidence (Lederer at [37]), and that the Panel failed to address perceived differences in Mr Bell’s account of whether his psychiatric problems were entirely due to the stealing and collision, as opposed to “fear of bikies” or “fear of retribution”. The Insurer complained that the Panel did not put these inconsistencies of recorded history to Mr Bell and give him an opportunity, as required by cl 6.41 of the Guidelines, to respond to those “inconsistencies” after bringing those “inconsistencies” to his attention.

That submission, (and related appeal ground), is misconceived.

The focus of cll 6.40 and 6.41 is upon inconsistency in clinical presentation, findings and observations, not alleged inconsistency in the history of the events recorded by others when compared with the Panel’s own history taken in their consultation with Mr Bell. The reliance by the Insurer on Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171, a case dealing with differences in the clinical presentation of a claimant and whether it differed from previous clinical presentation to other doctors, underscores this misconception.

In any event, the Panel in the course of its assessment specifically drew to Mr Bell’s attention the history said to have been provided to the other doctors in relation to the involvement of “bikies”, and has recorded his response and the terms of his rejection of that. Even taking the Insurer’s argument at its highest, the requirements of cl 6.41 were complied with. This ground of review fails.

The Insurer complained that the Panel has not complied with its common law duty to afford procedural fairness to the Insurer because it did not attempt to explore, and if possible resolve, the asserted inconsistencies in Mr Bell’s “reporting” to the Panel as opposed to what is recorded in “the material before the Panel”.

Mr Bell does not accept the allegations of inconsistency made, but as Mr Catsanos submitted, correctly, such a quasi-judicial inquiry with an adjudicated outcome would go well beyond any concept of affording procedural fairness and would in fact infringe upon what the High Court said in Wingfoot at [47] was the function of a review panel.

This ground is based on a misunderstanding of the Panel’s function in the circumstances of this case and the question referred to it to resolve, and is dismissed.

The Insurer submitted that the Panel did not deal with its submissions that the events that caused Mr Bell’s psychological injuries did not constitute a motor accident, and so comprised events either prior to, or subsequent to, the motor accident. Further, the written submissions stated that these “events” were in the nature of novus actus interveniens - obviously enough, I interpolate, a legal concept that requires legal adjudication, not medical assessment.

The Insurer complained that given the Panel’s duty to deal with the substance of the Insurer’s argument, failure to address these submissions was a constructive failure to exercise jurisdiction and a denial of procedural fairness.

This ground, too, is misconceived. It is underpinned by an assertion that the Panel should have, (impermissibly), determined what constituted a motor accident. To that extent, the argument is inconsistent with the Insurer’s first ground for review. To make any such decision would be clearly beyond the statutory power of the Panel, and would be in contravention of clear statement of principle in AAI v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 per McColl JA, cited with approval by Basten JA in the first Bell decision at [12].

If this ground is a complaint that the Panel did not deal with the Insurer’s submissions on causation, that argument also fails. The question is whether the decision-maker addressed the substance of the argument - “the central or critical elements of the case or claim” - not necessarily each discrete argument: Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] per Meagher JA, citing Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69] and [111]. The Panel clearly did deal with the substance of all of the issues raised.

This ground of review is also dismissed.

I make the following orders: