Allianz Australia Insurance Ltd v Byrne

These judicial review proceedings arise from a motor vehicle accident in 2015 in which the first defendant was involved, and his subsequent claim for compensation for psychiatric injuries.

The plaintiff in these proceedings, Allianz Australia Insurance Ltd, is a compulsory third party insurer in NSW. The first defendant, Christopher Byrne, is a claimant under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act). Following the accident, Mr Byrne lodged a claim for compensation with the plaintiff pursuant to the MAC Act. The second defendant is the State Insurance Regulatory Authority (SIRA). SIRA manages claims under the MAC Act. The third defendant is the Medical Review Panel (the Panel) appointed by SIRA, and is comprised of three medical experts. SIRA and the Panel have filed submitting appearances in these proceedings.

The plaintiff moves on the summons filed 8 November 2018. The plaintiff seeks an order in the nature of certiorari, or a declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) declaring invalid the Certificate of the Panel dated 17 September 2018. The plaintiff also seeks an order that the matter be remitted to SIRA for determination according to law by a differently constituted Panel under s 63 of the MAC Act.

The grounds of judicial review relied on by the plaintiff are:

Mr Byrne was driving along the Pacific Highway near Cooperabung, NSW in June 2015 with his partner, Lindsie, and his son, Charlie, when he was required to stop due to road works. After stopping, a vehicle insured by the plaintiff collided with the rear of Mr Byrne’s vehicle.

Lindsie, who was around 20 weeks pregnant at the time of the accident, suffered physical injuries and went immediately into shock. Lindsie began bleeding from her vagina the day after the accident, and went into labour about three weeks after the accident. She gave birth to a stillborn child, Victoria.

Mr Byrne alleges that he has suffered psychiatric injuries caused by the accident. Pursuant to s 131 of the MAC Act, for Mr Byrne to be awarded damages for non-economic loss his degree of permanent impairment must be greater than 10%.

The plaintiff disputed that the injuries give rise to greater than 10% permanent impairment. Due to this dispute, Mr Byrne’s compensation claim was referred to SIRA’s Medical Assessment Service (MAS) for assessment, pursuant to Part 3.4 of the MAC Act.

Among others, two objects of the MAC Act provide as follows:

Chapter 5 of the MAC Act gives effect to those objects by providing for the award of damages relating to the injury to a person caused by a motor vehicle accident, and Part 5.3 of the MAC Act specifically provides for damages for non-economic loss. Under that Part, the degree of permanent impairment of the injured person must exceed 10% for damages to be awarded:

When a dispute arises over the level of permanent impairment of an injured person, the MAC Act provides for a process of medical assessment to determine impairment:

The assessment of permanent impairment is to be made in accordance with prescribed guidelines:

Part 3.4 of the MAC Act applies to disagreements between a claimant and an insurer about whether the degree of permanent impairment of the claimant as a result of the injury caused by the accident is greater than 10% (s 58(1)(d)). Such disagreements are considered to be “medical disputes” to which Part 3.4 applies (s 57).

Once a disagreement over permanent impairment arises, s 60 provides for the referral of the disagreement to the MAS for assessment:

Section 65(1) requires that assessments under Part 3.4 be subject to the Motor Accidents Medical Guidelines, which are themselves issued pursuant to s 44(1)(d):

The relevant guidelines issued under s 44(1)(d) are named the “Medical assessment guidelines”, and govern the process of medical assessment under Part 3.4.

Once a dispute has arisen and has been referred under s 60(2) to a medical assessor for assessment, s 61 requires that medical assessor to issue a certificate in respect of the medical assessment. In accordance with the Medical assessment guidelines, the certificate is to include on the certificate whether the degree of permanent impairment is greater or lesser than 10% (cl 13.5.3).

Medical assessors undertaking assessments have been appointed by SIRA under s 59(1).

After an initial certificate is issued by a medical assessor under s 61, parties to a dispute are able to apply to SIRA to refer the medical assessment to a Panel of medical assessors for review (s 63(1)). The proper officer may arrange for such a review (s 63(3), and if a review takes place, the Panel may confirm the original certificate (and hence the original assessment of permanent impairment), or it may revoke it and issue its own certificate (s 63(4)).

In McKee v Allianz Australian Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609, Giles JA set out the task of the review panel:

The guidelines issued under s 44(1)(d), the Medical assessment guidelines, are relevant to the Panel’s role:

Mr Byrne’s psychiatric injuries were assessed by MAS Assessor Dr Andrews, psychiatrist, on 18 October 2017. That same day, Dr Andrews issued a Certificate dated 18 October 2017 assessing Mr Byrne as having 12% permanent impairment because of psychiatric injuries caused by the motor accident.

As part of his assessment, Dr Andrews conducted an interview with Mr Byrne and also undertook a clinical examination. The pre-accident history taken by Dr Andrews noted that Mr Byrne had experienced bouts of depression in the five or six years leading up to the accident, and that he also had problems with anxiety. [1]

The history of the motor accident taken by Dr Andrews relevantly noted that Mr Byrne: [2]

A history of symptoms and treatment following the motor accident was taken by Dr Andrews: [3]

Dr Andrews noted that Mr Byrne was taking medication for his anxiety, but was not taking other medications for his mental health problems. At the time of Dr Andrews’ assessment, Mr Byrne had been seeing Ms Moorhouse, a psychologist, fortnightly for a period of 18 months.

Under a heading entitled “Details of Any Relevant Injuries or Conditions Sustained Since the Motor Accident”, Dr Andrews made the following observations: [4]

Dr Andrews also reviewed the reports of other medical experts who had previously assessed Mr Byrne. One was from Ms Moorhouse, Mr Byrne’s treating psychologist, dated 11 June 2016. That report is not in evidence. The others were by Dr Parsonage, psychiatrist, dated 4 August 2016, and Dr Virgona, psychiatrist, dated 28 February 2017.

Dr Parsonage had assessed Mr Byrne in August 2016 noting his condition was not yet stable. He diagnosed Post-traumatic Stress Disorder and Major Depressive Disorder caused by: [5]

Dr Virgona assessed Mr Byrne in February 2017 on behalf of the plaintiff insurer and concluded that he was suffering a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and that the motor vehicle accident was a “substantial contributing factor to the current disorder”, as: [6]

In his Certificate Dr Andrews raised “another cause” – cervical incompetence – as the reason for the miscarriage. It was, with respect to him, somewhat speculative, given he too has no specialist obstetric qualifications, and is, like the Panel, a psychiatrist: [7]

Under the heading “Apportionment”, after making an assessment of the current degree of impairment as 12% (being 17%, less 5% for pre-existing impairment), Dr Andrews says this: [8]

I note that in ground 21 of its Summons, the plaintiff adopts Dr Andrews’ conclusion regarding causation by referring to the miscarriage as a “subsequent event causing additional impairment”, as if it is fact, rather than simply Dr Andrews’ opinion on that issue.

Dr Andrews, in his allocated task – to assess whether the degree of permanent impairment as a result of the injury caused by the motor accident was greater than 10% – presented as fact, to his mind, that the stillbirth was a “subsequent unrelated event” to the motor accident. In reaching this view he has placed weight on information or material he had that referred to the premature arrival of Mr Byrne’s other children and the possible cervical incompetence of Lindsie, to reach a view that emotional sequelae from the stillbirth should not form part of the assessed permanent impairment. This finding was then attended by a failure by Dr Andrews to apportion what permanent impairment related to the stillbirth, the so-called “subsequent event”, as opposed to what aspects of Mr Byrne’s impairment were, in his view, properly considered to be caused by the motor accident.

There was then a finding by the Proper Officer that led to the Panel referral. The Proper Officer’s decision or referral letter to the Panel are not in evidence before me, however it does not matter because the legislation and the case law makes clear that the Panel undertakes its assessment afresh.

Three psychiatrists, Dr Wayne Mason, Dr Michael Diamond and Dr Samson Roberts were convened to assess exactly the same question posed to Dr Andrews, but “following a review under s 63”.

Under the heading “Matters considered and decided by the Panel” there is a summary of the documents reviewed which included Dr Andrews’ Certificate, the application and reply, various clinical records and the reports of Ms Moorhouse, Dr Virgona and Dr Parsonage.

The Panel conducted an initial teleconference meeting on 18 April 2018. In its Certificate the Panel states: [9]

I note there was no specification that the material must be expert obstetric material or include the hospital or obstetric records of Mr Byrne’s partner.

The plaintiff did not provide any additional medical opinion to the Panel, but instead provided legal submissions dated 18 May 2018 citing a number of cases and, amongst other things, stating:

It is not correct to say, as the plaintiff submits, that Mr Byrne’s solicitors “did not provide any further medical material.” They provided a letter from his treating psychologist Ms Moorhouse dated 6 March 2018. The Panel noted this material in its Certificate: [10]

Under the heading “Re-examination” and the sub-heading “History of the motor accident” the Panel noted the following matters: [12]

Under the heading “History of symptoms and treatment following the motor accident”, the Panel noted: [13]

The Certificate then traces through the history the Panel obtained from Mr Byrne of the funeral, what activities Mr Byrne engages in, nightmares he suffers, physical symptoms such as his 12 kilogram weight loss, difficulties he has had with his partner due to his angry outbursts, and why he maintained the “very firmly held belief” that the motor accident caused Victoria’s death. [14]

The Panel noted his treatment regime, methadone regime, pre-existing treatment and medications and current symptoms, and then worked through his level of impairment in various areas of functions in his life. These impairments were determined by the Panel to range from mild to severe. [15]

As part of its review, the Panel considered the certificate and reasons of Dr Andrews, together with the documents that had been provided to him as part of his assessment.

Under the heading “Panel Deliberations” the Panel recorded its diagnosis of Persistent Depressive Disorder with Anxious Distress. As to the causation of Mr Byrne’s psychiatric injuries: [16]

The Panel disagreed with Dr Andrews’ diagnosis. It revoked the Certificate of Dr Andrews and issued a Certificate dated 17 September 2018 determining 20% permanent impairment, having deducted 2% to reflect pre-existing whole person impairment.

The plaintiff’s grounds of appeal are:

As explained in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [45]:

It is important to bear in mind that the Panel could not ignore the issue of whether Mr Byrne’s baby’s death was caused by the accident, despite not being provided with expert obstetric or gynaecological assistance. It is evident that Mr Byrne’s perception to this effect was a critical part of his claim. Based on McGiffen, the Panel would have failed in its statutory duty if it ignored this issue and made no attempt to address and determine it.

Substantial guidance as to how the Panel should approach its task is provided by the judgment of the Court in McGiffen:

It is also clearly settled law that medical assessors are to form their own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] per French CJ, Crennan, Bell, Gageler and Keane JJ (“Wingfoot”).

The Panel clearly viewed the stillbirth of Victoria as the critical factor in assessing impairment, [17] yet there was no evidence before the Panel to allow it to determine whether a causal link existed between the motor accident and the stillbirth of Victoria. [18]

To make a finding as to causation between the motor accident and the stillbirth, the Panel relied on matters such as Lindsie bleeding from her vagina the day after the accident, the stillbirth occurring three weeks after the accident, and the fact that Mr Byrne has had other children who have survived their births, despite Lindsie having an incompetent cervix; this was “simplistic”. [19]

The Panel, constituted by three psychiatrists, had earlier requested “submissions of credible expert opinion” on whether the motor accident contributed to the stillbirth, because it was cognisant of the fact that it did not have the “medical expertise” to make such a causal finding. [20] Where no opinion was forthcoming, the Panel could only make a finding that Mr Byrne “failed to discharge his onus of proving a causal link between the motor accident and the subsequent stillbirth”. [21]

Reliance was placed upon Allianz Australia Insurance Ltd v Mackenzie & Ors [2014] NSWSC 67 per Hoeben CJ at CL:

The structure of the Certificate and its reasoning, and the reference to the reports of the other medical practitioners who had assessed Mr Byrne, reveals that the Panel did not determine as a matter of scientific fact that the motor accident killed Mr Byrne’s unborn child, rather the panel proceeded on an acceptance of the claimant’s belief to that effect. [22]

Despite the references to the accident being a direct cause of Victoria’s death, [23] these references are “adjectival”, and the Panel’s Certificate, when read a whole, demonstrates that it was concerned with making an assessment as to causation between the accident and Mr Byrne’s psychiatric impairment, noting that:

There was no error of law on the face of the record, simply a conclusion on a question of medical fact, [26] which even if “wrong” could never be an error of law on the face of the record: [27]

The question as to whether there is an error of law is one of legality, not merit, correctness or appropriateness: Allianz Australia Insurance Limited v Zein [2016] NSWSC 196 at [18] per Adamson J. [28]

It was not a legal conclusion and as such, the assertion of error of law on the face of the record cannot be supported.

As stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 per Mason CJ, it is clear (in the context of judicial review) that the making of a finding and the drawing of inferences in the absence of evidence is an error of law: [29]

It is incorrect to submit, as the plaintiff does, that there was no evidence to conclude that the motor accident caused Mr Byrne’s partner’s miscarriage. It is true that there was no expert obstetric evidence.

Some experts (also all psychiatrists), prior to the Panel’s decision, were of the opinion having assessed the material before them that a causal link between the motor accident and Mr Byrne’s partner’s miscarriage was not made out.

Obviously the Panel reached the opposite conclusion.

The Panel took a detailed history from Mr Byrne showing a significant temporal connection to symptoms and miscarriage. There is a path of reasoning and analysis set out in the Certificate.

But even if it was a wrong finding of fact, (or wrong opinion based on the facts as found), there is no error of law. As submitted by senior counsel for Mr Byrne, it is in essence a conclusion of medical fact made by the Panel.

That conclusion was necessary for and underpins the Panel’s overall assessment of impairment caused to Mr Byrne by the motor accident. The Panel has found as a matter of fact, based on its assessment, that his impairment was caused not only by the fear of potential miscarriage and fear of injury to his unborn child, but the fact of that miscarriage, and that it was all caused by the motor accident. That is a conclusion that was open to the Panel. It was required to assess Mr Byrne’s impairment, and part of that impairment was the distress and grief from the loss of the child which Mr Byrne continued to think, despite reassurance to the contrary, was his fault.

All members of the Panel are medical practitioners. Nowhere in the Certificate or the evidence does the Panel say it is unable to address the issue of causation of the miscarriage. The Panel requested “submissions of credible expert opinion on the association between the motor accident and the subsequent miscarriage”. [31] It was provided with limited material in response. The Panel still had a statutory task to complete, and it did so with the material provided, which included the clinical history given by Mr Byrne.

To the contrary of what was submitted by the plaintiff, to fail to address that aspect of Mr Byrne’s case because of “absence of” or “inadequate evidence”, would in my view have been a constructive failure to exercise jurisdiction: McGiffen at [52].

The reference by senior counsel for the plaintiff to Allianz Australia Insurance Ltd v Mackenzie & Ors [2014] NSWSC 67 is inapposite. There was no reversal of onus of proof in the way the Panel dealt with the issue. The Panel traced through the history and reached a conclusion. It was a different conclusion to that reached by Dr Andrews but that is of no relevance. Most importantly, the Panel focused on evaluating the role of the motor accident in causing all aspects of Mr Byrne’s persistent depressive disorder with anxious distress.

No error of law has been demonstrated and ground 1 fails.

The Panel was confined by the statutory scheme to assess Mr Byrne’s level of impairment due to his psychiatric injuries arising from the accident, but in making findings as to the causation of the stillbirth of Victoria, it acted outside its statutory remit, and this amounts to jurisdictional error.

Senior counsel for Mr Byrne submitted that the task was not so confined. He argued that jurisdiction is triggered by the existence of a medical assessment matter (s 56 of the MAC Act) and the appointment of a Panel by the Proper Officer confers jurisdiction on the Panel to determine the matters referred to it: [32]

I am persuaded by the submissions made by senior counsel for Mr Byrne. There is simply no basis to confine the Panel’s task in the way alleged by senior counsel by the plaintiff. To the contrary, the Panel’s task was to inform itself as it sees fit, and then to set out the actual path of reasoning by which it arrived at the opinion it in fact formed for itself.

As stated in Wingfoot:

The substance of Mr Byrne’s case included the whole of his impairment arising from the motor accident and that included his impairment arising from his grief and distress at the stillbirth of his child. It would have been a “failure to respond to a substantial argument” along the lines analysed in McGiffen at [52], and thus potentially a failure to exercise jurisdiction, if the Panel made no finding at all on this question.

Ground 2 is not made out.

To the extent that I need to deal with this issue, given the conclusions I have reached that both grounds of the appeal fail, I am not persuaded by the arguments put forward by senior counsel for Mr Byrne asserting there is futility in granting relief under s 69. A different Panel may reach a different opinion on the application of its analysis of events, its reasoning, and exercise of its medical expertise. Not only is there potential for difference in opinion about causation issues, there is complexity in the assessment of Mr Byrne’s pre-existing impairment and his diagnosis as indicated by the differing views in evidence before me. The additional ground for relief – futility – is not made out.