Allianz Australia Insurance Limited v Bell

1. [1]

   PAYNE JA: I have read the judgment of Price AJA in draft and I agree with the orders proposed and with his Honour’s reasons. These additional observations are not intended to be inconsistent with his Honour’s reasons.

2. [2]

   This case involves events which occurred in 2018. It is common ground that as a result of those events the present respondent, Mr Bell, suffers from Post Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder. The ultimate issue which divides the parties is whether a “motor accident” within the meaning s 1.4(1) of the Motor Accident Injuries Act 2017 (NSW) was a cause of those conditions.

3. [3]

   In AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368, this Court explained that:

4. [4]

   Accordingly, for the purposes of the scheme of motor accident compensation in NSW, causation is a matter for the medical assessor and Review Panel, but the question of whether or not the events which caused a relevant injury constitute a “motor accident”, as defined, is a matter for the court.

5. [5]

   A medical assessment certificate was issued by a medical assessor on 28 February 2021. The assessor found that the respondent’s injury resulted from the perceived threats to the respondent’s safety and the feeling of intimidation. The assessor continued:

6. [6]

   The respondent sought a review of that decision. On 26 August 2021, a delegate of the President of the Personal Injury Commission to whom the application was referred, determined that he was not satisfied that there was reasonable cause to suspect that the medical assessment was incorrect and dismissed the review application.

7. [7]

   Judicial review proceedings were brought in the Supreme Court. Basten AJ set aside the decision of the delegate of the President of the Personal Injury Commission and remitted the matter for re-consideration: Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108; (2022) 101 MVR 187.

8. [8]

   Upon remittal, a delegate of the President of the Personal Injury Commission determined that there was reasonable cause to suspect that the medical assessment was incorrect and referred the matter to a Review Panel. On 13 April 2023, the Review Panel certified that Mr Bell’s PTSD and Major Depressive Disorder were caused by the following events and assessed his Whole Person Impairment (“WPI”) as being 19%. The underlying events were aptly summarised by Basten AJ in Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108:

9. [9]

   The present appellant, Allianz Australia Insurance Limited, sought judicial review of the Review Panel’s decision on the basis of jurisdictional error and/or error of law on the face of the record. On 29 October 2024, the summons seeking judicial review was dismissed by the primary judge, Lonergan J: Allianz Australia Limited v Bell [2024] NSWSC 1351. The appeal to this Court essentially repeated each of the complaints made to the primary judge and for the most part ignored the decision of the primary judge.

10. [10]

    The appellant submitted that the events so described as causing Mr Bell’s injuries consisted of distinct events rather than being a single causative event. It was argued that the events should be analysed as, on the one hand, the collision whereby the motorcycle fell on the respondent causing a flesh wound to his leg (which was accepted to be a “motor accident” as defined), and on the other, three separate events, being:

11. [11]

    The appellant’s submission was that:

12. [12]

    The critical issue, from the appellant’s point of view, was thus whether it should have been concluded by the Review Panel that the respondent’s PTSD and Major Depressive Disorder were not caused by the physical event of the motorcycle falling on the respondent and that those injuries were caused by separable and separate physical events described in the appellant’s submissions as “stealing of the motorcycle and the fear of retribution from reporting the theft”.

13. [13]

    I do not accept that the Review Panel was required to adopt the appellant’s characterisation of the events as being separable and separate, lest they fall into jurisdictional error or commit an error of law on the face of the record. Much less was the primary judge required to adopt the appellant’s characterisation of the events. The Review Panel was required to make findings about causation by reference to a relevant physical event or events and leave it to the court to determine whether or not those events constituted a “motor accident”.

14. [14]

    As to the content of those physical event or events in the present case, Basten AJ explained in the earlier iteration of this case:

15. [15]

    The key question remitted by Basten AJ to the President of the Personal Injury Commission (and the Review Panel) was whether the threats and intimidation identified in his Honour’s description of the relevant events formed part of a single incident involving the use or operation of a motor vehicle and, if so, what assessment should be made of the resulting WPI.

16. [16]

    The Review Panel who determined this issue here clearly found that the threats and intimidation formed part of a single causative event. The Review Panel found that the respondent’s PTSD and Major Depressive Disorder were “caused by the motor accident”.

17. [17]

    Under the heading “Evidence considered”, the Review Panel described the relevant events as being:

18. [18]

    Under the heading “History of the motor accident”, the Review Panel said:

19. [19]

    Under the heading “Panel Deliberations”, the Review Panel said the following about the respondent’s injuries and the issue of causation:

20. [20]

    The primary judge, Lonergan J, explained:

21. [21]

    I agree with her Honour’s conclusion. Read fairly and as a whole, as the Review Panel’s reasons must be, I am comfortably satisfied that the Panel proceeded on the basis that the accident, which encompassed the stealing of the bike and the collision, was a “single causative event”.

22. [22]

    The Review Panel was not required to reason that each of the alleged elements of the one incident were separable and that a separate determination of causation needed to be made for each element identified by the insurer. The Review Panel’s clinical determination was that the respondent met the DSM-5 criteria for PTSD in that he was seriously injured by reason of a single traumatic incident. The insurer’s submission requires a path of reasoning which the Review Panel was not bound to follow and which plainly it did not follow. In Wingfoot Australia Partners Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43, the High Court explained the functions of a Review Panel:

23. [23]

    In the present case, the Review Panel was not required to decide a dispute or to make up its mind by reference to competing contentions. It was required to make a clinical determination about whether Mr Bell’s PTSD and Major Depressive Disorder were caused by the events it described. This it did. That clinical determination of the Review Panel was that the accident, which encompassed the stealing of the motorcycle and the collision, was a single causative event. No error has been shown in the primary judge’s characterisation of the Review Panel’s decision as being that “what it described as the accident was a single causative event”.

24. [24]

    The appeal should be dismissed.

25. [25]

    BALL JA: I have had the considerable advantage of reading in draft the judgment of Price AJA. I gratefully adopt his Honour’s description of the facts and relevant legislation as well as the abbreviations used by his Honour. I accept for the reasons his Honour gives that many of the arguments raised by the grounds of appeal must be rejected. However, I cannot agree with his Honour’s conclusions in relation to the argument most clearly raised by Ground 3.

26. [26]

    In this case it was and is Allianz’s contention that the incident in question consisted of two events. One was the attempted theft of Mr Bell’s motorcycle by a person whom Mr Bell believed, at the time, was a member of an outlawed motorcycle gang. The other was the motorcycle falling on Mr Bell’s leg when it was pushed towards him by the thief and Mr Bell attempted unsuccessfully to maintain it in an upright position. That characterisation of the events was and is disputed by Mr Bell. Allianz contends that the first event did not fall within the scope of s 1.9(1) of the MAI Act or the definition of “motor accident” in s 1.4 of the Act, although it quite properly conceded that the second event did. Allianz also contends that Mr Bell’s psychological injuries were caused by the first event, but not by the second.

27. [27]

    A medical assessor and a review panel performing their functions under the MAI Act have no jurisdiction to determine whether death or injury is a result of and is caused by an event falling within the scope of s 1.9(1) of the MAI Act where that is an issue between the parties. It must follow that neither has jurisdiction to determine a dispute about whether a particular incident involves two events, one only of which is said to fall within the scope of s 1.9(1). Nor generally do either of them have jurisdiction to determine a medical dispute concerning an injury that is not a result of or is not caused by an event set out in s 1.9(1): see Sch 2 cl 2(a) and s 7.17 of the MAI Act. On the other hand, they have exclusive jurisdiction to determine a medical dispute concerning an injury that is. So much seems to be common ground.

28. [28]

    What, then, is a medical assessor or a review panel to do if they are confronted with a case such as the present one where it is said that there are two relevant events, only one of which falls within s 1.9(1) and where there is a dispute about what injuries were caused by which event?

29. [29]

    The answer to that question consistently with the decision of this Court in AAI Ltd and accepted by Basten AJ in Bell No 1 is that they should “make findings about causation by reference to the physical event or events” and leave it to the Court (or Commission) to determine whether there were one or two events and which (if any) fall within s 1.9(1). The Review Panel did not do that. It did not seek to draw a distinction between the two events identified by Allianz. Instead, it referred to the two events compendiously as “the accident” or “the motor accident”. Nor did the Review Panel seek to identify which injuries were caused by the event Allianz accepted fell within s 1.9(1) and the event it contended did not. In doing so, the Review Panel failed to carry out its statutory task.

30. [30]

    As I understand it, the response that the primary judge and Price AJA make to the point made in the previous paragraph is that properly analysed, the two events identified by Allianz were so closely related in space and time that they must be treated as a single event, which is properly regarded as an event falling within s 1.9(1).

31. [31]

    I cannot accept that answer. In my opinion, it involves a departure from the principles stated in AAI Ltd and is difficult to reconcile with the procedures set out in the MAI Act for resolving disputes. The principles stated in AAI Ltd apply where there is “doubt about whether an incident falls within the statutory definition” (my emphasis). But here, the effect of the decision is that any doubt is resolved on the current application for judicial review against Allianz. As a consequence of the Review Panel’s decision, Mr Bell is entitled to make a claim for compensation for the psychological injury he suffered because it has been determined by the Review Panel that the degree of permanent impairment he suffered exceeds the 10% threshold set out in s 4.11 of the MAI Act. In the normal course of events, Allianz would be entitled to raise as a defence to Mr Bell’s claim that his claim did not fall within the scope of s 9.1(1) of the MAI Act and therefore it was not liable for it. But as a result of what has happened, it is difficult to see how it could do so. Suppose, for example, a court hearing Mr Bell’s claim accepted Allianz’s argument that there were two separate events, one only of which fell within s 9.1(1) of the MAI Act. What is it to make of the binding conclusion of the Review Panel that Mr Bell suffered a psychological injury resulting from the incident in respect of which he sues which gave rise to a permanent impairment of 19%?

32. [32]

    There may be cases where it is not arguable that there are two events, one falling outside s 1.9(1); and in those a medical assessor or a review panel would not make a jurisdictional error in proceeding on that basis. But that is not this case. Although it is correct to say that the two events are closely related in time and space, it seems to me that it is reasonably arguable that they are conceptually distinct. The attempted theft may have caused the accident, but it was capable of causing psychological injury whether or not the accident occurred.

33. [33]

    There may also be cases where, even accepting that there are two events, it is not possible to determine which event caused the relevant injuries because, for example, they are so closely connected. But that does not appear to be this case. Here, the Medical Assessor attributed the injury to the first event and not to the second. He fell into error by concluding that that event was not a motor vehicle accident, whereas he should have left that question to the Commission or the Court. It may be that the Review Panel disagreed with the Medical Assessor’s conclusion and thought that both events were the cause of Mr Bell’s psychological injuries. But if that is what it thought, it needed to say so. Because the Review Panel did not draw a distinction between the two events, the effect of what it did was to assume the answer to a question it was required to decide – namely, whether a cause of the psychological injuries suffered by Mr Bell was the attempted theft of Mr Bell’s motorcycle by a person Mr Bell believed to be a member of a motorcycle gang, the falling of the motorcycle on Mr Bell’s leg, causing him injury, or both.

34. [34]

    For those reasons, I would make the following orders:

    1. (1)

       Appeal allowed.

    2. (2)

       Judgment of the Court below be set aside and in place thereof:

    3. (3)

       Order that the first respondent pay the appellant’s costs in this Court and the Court below.

35. [35]

    PRICE AJA: These proceedings arise as the appellant, Allianz Australia Insurance Limited trading as Allianz (“Allianz”), seeks an order to set aside the decision of Lonergan J (“the primary judge”) in Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351 (“PJ or Primary Judgment”).

36. [36]

    By summons filed on 13 July 2023, Allianz brought proceedings for judicial review of a decision of the second respondent, the Review Panel of the Personal Injury Commission of New South Wales (“Review Panel”) dated 13 April 2023, which found that the first respondent, Mr John Bell’s, motor accident on 11 July 2018 was the cause of his psychological injuries being post-traumatic stress disorder (“PTSD”) and Major Depressive Disorder.

37. [37]

    The Review Panel considered that those injuries gave rise to a permanent impairment and issued a Review Panel Certificate (“RPC”) under s 63 of the Motor Accidents Compensation Act 1999 (NSW) (“the MAC Act”), which assessed Mr Bell’s Whole Person Impairment (“WPI”) to be 19%. As the primary judge correctly explained at PJ[19], the Review Panel’s reference to the MAC Act is in error and the RPC should have been issued pursuant to s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (“the MAI Act”).

38. [38]

    Allianz’s five grounds of review were dismissed by the primary judge. Her Honour found that no jurisdictional error or error of law on the face of the record had been established.

39. [39]

    The Review Panel and the third respondent, the President of the Personal Injury Commission of New South Wales (“the PIC”), have filed submitting appearances.

Grounds of appeal

1. [40]

   The five grounds of appeal raised by Allianz are:

2. [41]

   It was common ground that leave to appeal is not required, given that the value of Mr Bell’s claim exceeds the threshold of $100,000: s 101(2)(r)(ii) of the Supreme Court Act 1970 (NSW).

3. [42]

   As has often been emphasised, this Court is a court of error, Allianz must persuade this Court that the primary judge was in error in dismissing the summons. The appropriate standard of appellate review is the correctness standard and this requires an evaluative judgment for which “there can only be one right answer”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [35]-[50] (Gageler J), [154] (Edelman J); See, Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [14]-[15] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

4. [43]

   For the reasons set out below, the appeal should be dismissed.

Background

1. [44]

   Mr Bell was injured in a motor vehicle accident on 11 July 2018. The events that occurred on that day are not controversial and have been concisely summarised by Basten AJ in Bell v Allianz Insurance Australia Ltd [2022] NSWSC 1108; (2022) 101 MVR 187 at [2] (“Bell No 1”), which the primary judge adopted relevantly at PJ[4]:

Mr Bell’s claim and dispute

1. [45]

   Mr Bell made a claim against Allianz, the compulsory third party insurer of the vehicle at fault in the accident, for statutory benefits and damages under the MAI Act.

2. [46]

   Mr Bell’s claim included physical injury to his right leg and psychological injury. Allianz has accepted that the collision between the motorcycle and Mr Bell’s leg was an event which constituted a motor accident within the scope and definition of the MAI Act.

3. [47]

   However, Allianz contended that Mr Bell’s psychological injury was not the result of the use of, or operation of the motor vehicle in either the driving collision, vehicle running out of control or a dangerous situation caused by the driving. A dispute arose between Mr Bell and Allianz relating to the psychological injury and the exact events which caused that injury, including whether any of those events constituted a motor accident under the MAI Act.

4. [48]

   It was Allianz’s case that Mr Bell’s psychological symptoms were caused by the stealing of the motorcycle and the fear of retribution from reporting the theft to police, that these were distinct events to the motor accident in the nature of a “novus actus interveniens”. In particular, the stealing of the motorcycle occurred independently from the collision and would have occurred irrespective of the collision. Therefore, it was submitted that factual causation was not established in the present case.

5. [49]

   Allianz referred to the scope of an insurer’s liability to indemnify Mr Bell being subject to the limitations set out in s 1.9 of the MAI Act which provides:

6. [50]

   On this basis, Allianz disputed that Mr Bell was entitled to statutory benefits and damages for the psychological injury covered by Pt 3 of the MAI Act. Thus, a medical dispute (“the dispute”) existed as to Mr Bell’s psychological injury and the degree of permanent impairment: ss 7.17 and Sch 2, cl 2(a) of the MAI Act.

Mr Bell’s medical assessments

1. [51]

   Prior to a medical assessment under the MAI Act, Dr Gordon Hyde, a consultant psychiatrist, noted in his report dated 1 April 2019 that:

2. [52]

   Dr Hyde diagnosed Mr Bell as suffering from PTSD and “Major depressive disorder moderate to severe without psychotic features”.

3. [53]

   On 28 May 2019, Mr Bell was examined by an Assessor, Dr Doron Samuell (“Assessor Samuell”), with respect to a dispute about whether the psychological injury was a “minor injury” under ss 1.6 and Sch 2, cl 2(e) of the MAI Act. In Assessor Samuell’s report dated 11 June 2019, he recorded that:

4. [54]

   In a certificate issued on 11 June 2019, Assessor Samuell diagnosed Mr Bell as suffering from PTSD by reference to the diagnostic criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). Although not expressly mentioned, it is apparent that Assessor Samuell was satisfied that Mr Bell met Criterion A of DSM-5. Criterion A listed in DSM-5 for PTSD identifies a non-exclusive range of potential events capable of triggering PTSD including “severe motor vehicle accidents”.

5. [55]

   On 1 October 2019, a proper officer of the State Insurance Regulatory Authority (“SIRA”) constituted under the State Insurance and Care Governance Act 2015 (NSW), dismissed Mr Bell’s application that the dispute be referred to a review panel under the predecessor provision of s 7.26 of the MAI Act, prior to its amendment effective 1 March 2021: ss 7.26(2), 7.26(5) of the MAI Act.

6. [56]

   On 6 December 2019, Dr Ben Teoh, a consultant psychiatrist, examined Mr Bell and opined that he was “anxious and worried about his safety in public places”. In his report dated 10 December 2019, Dr Teoh assessed Mr Bell’s WPI in relation to his psychological injuries to be 13%. Allianz did not accept Dr Teoh’s assessment of WPI.

7. [57]

   The dispute was referred for review to a Medical Assessor, Matthew Jones (“the Medical Assessor”), who assessed Mr Bell on 21 January 2021 and 18 February 2021. Relevantly, the PIC was established on 1 March 2021 by s 6 of the Personal Injury Commission Act 2020 (NSW) (“the PIC Act”), which is one day following the date when the Medical Assessor issued his certificate on 28 February 2021.

8. [58]

   The Medical Assessor reported that he had asked Mr Bell:

9. [59]

   In response to the Medical Assessor’s question about whether Mr Bell had PTSD features such as re-experiencing phenomenon, Mr Bell said that he “sees [the accident a lot] replaying in his head … [h]e sees the bikies and … is always ‘looking out to see if someone is going to get [him]’” (emphasis in original).

10. [60]

    The Medical Assessor accepted that Mr Bell has “significant psychiatric symptomatology”, whether that be “Chronic [PTSD] or even Generalised Anxiety Disorder”, which were not pre-existent and had been “triggered by an incident or incidents”. The Medical Assessor stated that:

11. [61]

    As to the narrative which related to the stolen motorcycle, involving Mr Bell chasing after the thief, catching up with him and being physically injured as the bike is thrown towards him, all of which was depicted on closed-circuit TV (“CCTV”) footage, the Medical Assessor concluded that:

12. [62]

    The Medical Assessor concluded that Mr Bell’s “Chronic [PTSD] (or even Generalised Anxiety Disorder as a differential diagnosis)” were not caused by the motor accident. He issued a certificate on 28 February 2021 under s 7.23(1) of the MAI Act, which stated that none of the injuries referred to him for assessment were related to the motor accident and an assessment of WPI was not required.

13. [63]

    On 3 June 2021, Mr Bell applied for a review of the Medical Assessor’s assessment pursuant to s 7.26 of the MAI Act. However, on 26 August 2021, the Delegate of the President of the PIC (“the Delegate”) was not satisfied that there was reasonable cause to suspect that the Medical Assessor’s assessment was incorrect in a material respect: s 7.26(5) of the MAI Act; s 63 of the MAC Act. Mr Bell’s application for review of the Medical Assessor’s assessment was dismissed and not referred to a review panel.

14. [64]

    Mr Bell brought proceedings for judicial review of the Delegate’s decision pursuant to s 69 of the Supreme Court Act in the Supreme Court of New South Wales. On 18 August 2022, Basten AJ set aside the Delegate’s decision and remitted the matter to the President of the PIC for redetermination according to law: Bell No 1. His Honour made the following observations at [12]-[13] of Bell No 1 citing with approval McColl JA’s passage in AAI Ltd v State Insurance Regulatory Authority (NSW) [2016] NSWCA 368; (2016) 79 MVR 57 at [161] (Macfarlan and Simpson JJA agreeing) (“AAI Ltd”):

15. [65]

    On 17 October 2022, the Delegate was satisfied that there was reasonable cause to suspect that the Medical Assessor’s medical assessment was incorrect in a material respect and the matter was subsequently referred to the Review Panel: s 7.26(5) of the MAI Act; s 18(1) of the PIC Act.

Review Panel’s decision

1. [66]

   On 13 April 2023, the Review Panel constituted under s 7.26(5A) of the MAI Act, assessed Mr Bell’s WPI resulting from the injuries caused by the accident to be 19%. The Review Panel revoked the Medical Assessor’s earlier certificate and issued a new certificate under s 63 of the MAC Act, which had the effect of entitling Mr Bell to damages for non-economic loss: ss 7.23, 7.26(7) of the MAI Act. An assessment of 19% is greater than the threshold limit of 10% to be entitled to damages for non-economic loss pursuant to s 4.11 of the MAI Act.

2. [67]

   Mr Bell had been re-examined by the Review Panel via video conference on 5 April 2023. In its reasons, the Review Panel stated that Mr Bell:

3. [68]

   Under the heading “Comments on consistency”, the Review Panel stated that:

4. [69]

   The Review Panel found that Mr Bell suffered from “both a severe major depressive disorder and an additional [PTSD]”, which “meets [the] DSM-5 criteria for [PTSD] in that he was seriously injured in a traumatic incident”.

5. [70]

   As to causation, the Review Panel stated that:

6. [71]

   Under the heading “Review panel decision”, the Review Panel stated:

Proceedings before the primary judge

1. [72]

   Allianz in the summons before the primary judge contended that there were a number of jurisdictional errors on the face of the record or alternatively, the Review Panel constructively failed to exercise its statutory power on the following five grounds of review which her Honour summarised in the following terms at PJ[21]:

The Primary Judgment

1. [73]

   As to Ground 1, the primary judge did not agree with Allianz’s submission that the Review Panel purported to determine the scope of the motor accident by stating that the psychological injury was caused by “the subject motor accident”. The primary judge found at PJ[23] that it was necessary to read the Review Panel’s certificate as a whole and the references to the “motor accident” in the certificate were “nothing more than as a general descriptor. Her Honour observed at PJ[27]:

2. [74]

   The primary judge found at PJ[28] that the consistency or otherwise of Mr Bell’s history was a matter for determination by the ultimate factfinder and did not bear “upon the assessment of the approach taken by the [Review Panel] on the history that it received and accepted in the exercise of the [Review Panel] members’ clinical judgement”. Her Honour concluded that no jurisdictional error was disclosed.

3. [75]

   In addressing Ground 2, the primary judge rejected Allianz’s complaint of inadequacy of reasons because the Review Panel had failed to explain which events constituted the motor accident. Her Honour found that it was clear the Review Panel in fact had provided its reasons for finding that Mr Bell’s WPI was 19%.

4. [76]

   The primary judge considered that the Review Panel by using the terms “motor accident”, “accident” and “subject motor accident”, did not suggest any ambiguity. Her Honour found at PJ[36] that the reference is clear and no further explanation was required. Her Honour further stated at PJ[39]:

5. [77]

   The primary judge also rejected Allianz’s contention that since there were notable inconsistencies between the reports made by Mr Bell to Assessor Samuell, the Medical Assessor and the Review Panel, it was for that reason not open to the Review Panel to conclude that Mr Bell’s presentation was internally consistent and consistent with the documentation provided. Her Honour said those arguments were misconceived. Her Honour said at PJ[32]-[33] that the task of the Review Panel was to assess the degree of permanent impairment pursuant to s 7.21 of the MAI Act citing Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (“Wingfoot”).

6. [78]

   As to Ground 3, the primary judge found that Allianz’s submission that the Review Panel did not put the inconsistencies of recorded history to Mr Bell and provide him with an opportunity to respond to those “inconsistencies” after having brought them to his attention as required under cl 6.41 of the Motor Accident Guidelines issued by SIRA under s 10.2 of the MAI Act (version 9.1, effective from 1 April 2023 to 10 November 2023) (“Motor Accident Guidelines”), was misconceived. Her Honour said at PJ[45]:

7. [79]

   The primary judge said that “in any event” the Review Panel had during its assessment specifically drawn to Mr Bell’s attention the history said to have been provided to the other doctors in relation to the involvement of “bikies” and had recorded his rejection in response of that. Her Honour further said at PJ[46] that “[e]ven taking [Allianz’s] argument at its highest, the requirements of cl 6.41 [Motor Accident Guidelines] were complied with”.

8. [80]

   As to Ground 4, the primary judge considered that this ground was based on Allianz’s misunderstanding of the Review Panel’s function. Her Honour referred to Allianz’s complaint that the Review Panel had not complied with its common law duty to afford procedural fairness to Allianz because “it did not attempt to explore, and if possible, resolve the asserted inconsistencies in Mr Bell’s reporting” to the Review Panel, and stated at PJ[48]:

9. [81]

   As to Ground 5, the primary judge rejected Allianz’s argument that the Review Panel did not deal with their submissions concerning whether the events that caused Mr Bell’s psychological injuries did not constitute a motor accident and that these “events” were in the nature of a novus actus interveniens. Her Honour in response to Allianz’s complaint, expressed the view at PJ[52]-[53]:

The appeal to this Court

1. [82]

   Allianz’s principal complaint centres upon Mr Bell’s reporting to the Review Panel during which “he said he had never indicated any concerns about motorcycle gangs” (see [67] above). In this Court, Allianz submitted that in view of the significant differences in Mr Bell’s reporting of which Allianz was unaware, to avoid practical injustice, the Review Panel at a minimum was required to explore the inconsistencies in Mr Bell’s evidence (which is further raised in Ground 2) and to invite further submissions from the parties concerning that materially different history. Allianz submitted that by not being afforded an opportunity to be heard on this issue, there was a denial of procedural fairness as the plurality of the High Court stated in Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [33] (Kiefel CJ, Keane and Gleeson JJ) (“Nathanson”).

2. [83]

   Allianz further submitted that this was not a case where it was “perfectly clear” what Mr Bell was contending as his earlier versions of evidence were materially different to his presentation and evidence before the Review Panel. Allianz referred to the principles and requirements of procedural fairness summarised by Leeming JA in Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [41]-[42] (Beazley P and Basten JA agreeing) (“Frost”), and the scope of the duty to afford procedural fairness by a review panel which was considered by Adamson JA in AAI Limited t/as GIO v Amos [2024] NSWCA 65; (2024) 107 MVR 210 at [67]-[68] (Kirk JA and Basten AJA agreeing) (“Amos”).

3. [84]

   In response to Ground 1, Mr Bell submitted that the Review Panel was tasked with resolving the dispute; it was not required to resolve any purported difference in the reporting history provided by Mr Bell nor was it necessary to embark upon an exploration to ascertain which version of events relevant to issues of liability or indemnity were reliable.

4. [85]

   Mr Bell contended that such a requirement on the Review Panel would be inconsistent with the specific statutory function it holds and its specific jurisdiction. Mr Bell relied on the formulation by Leeming JA in Frost at [39]-[40], which considered that the standard required of a statutory body such as the Review Panel when conducting an assessment is consistent with the requirements of procedural fairness as expressed by the High Court in Wingfoot at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ). Contrary to Allianz’s submissions, Mr Bell argued that there was no support for a greater obligation on the Review Panel to afford procedural fairness in a non-curial medical assessment, noting that the Review Panel had all the material before it and issued a certificate with its reasons. Furthermore, that the Review Panel’s assessment should not be taken as being synonymous with curial proceedings.

5. [86]

   Mr Bell submitted that the resolution of the dispute as to the degree of WPI by a medical assessor or a review panel does no more than to open the gateway for the award of damages for non-economic loss: s 4.12 of the MAI Act. This assessment does not resolve all the issues pertaining to entitlement, which remains to be determined by a court or members of the PIC. Mr Bell relied upon the observations of Giles JA in Motor Accidents Authority of NSW v Mills (2010) 78 NSWLR 125; [2010] NSWCA 82 at [58] (Tobias JA and Handley AJA agreeing) (“Mills”) and ss 4.1-4.3 of the MAI Act. Relevantly, Giles JA in Mills considered that a review panel’s statutory function by issuing a certificate was to establish whether the WPI threshold required for an award of damages had been met. Mr Bell submitted on this basis that the assessment particularly did not resolve all the issues regarding entitlement to damages for non-economic loss such as in the present case where there is a question in respect of s 1.9 of the MAI Act.

6. [87]

   Allianz did not raise before the primary judge that as a matter of procedural fairness, the Review Panel was required to invite submissions from the parties concerning Mr Bell’s materially different reporting history. Allianz’s argument in Ground 4 of the summons before the primary judge was confined to the complaint that the Review Panel had not attempted to explore and if possible, resolve the asserted inconsistencies in Mr Bell’s reporting, which her Honour rejected. As a general rule, a party will be refused permission to rely on a point not raised at the hearing below: Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) (“Bird”). However, as the plurality observed in Bird, that rule “is not absolute”, and as there was no objection by Mr Bell to this new issue being raised for the first time on appeal, accepting that it concerns an important question of law “it is expedient in the interests of justice” that it be decided by this Court: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); [1982] HCA 33; Coulton v Holcombe (1986) 162 CLR 1 at 7-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33.

7. [88]

   In rejecting Allianz’s argument that the Review Panel was obliged as a matter of procedural fairness to explore the inconsistencies in Mr Bell’s reporting to the Review Panel, the primary judge at PJ[48] referred to the High Court’s oft-quoted statement of principle which considered the requirements of procedural fairness in Wingfoot at [47]:

8. [89]

   The Review Panel was not required to decide a dispute or make up its mind by reference to the competing contentions or opinions. As was recently explained by Adamson JA in Allianz Australia Insurance Limited t/as Allianz v Susak [2025] NSWCA 91 at [78] (Payne and Stern JJA agreeing) (“Susak”):

9. [90]

   The obligation to accord procedural fairness by the Review Panel extended to putting to Mr Bell his concerns about the man being “a member of the motorcycle gang”, which was a critical issue and providing him with an opportunity to respond: Kioa v West (1985) 159 CLR 550 at 587 (Mason J); [1985] HCA 81 (“Kioa”); Frost at [32], [35]; Amos at [55]. However, the Review Panel was not obliged to put to Mr Bell the various histories that he had given about his symptoms. It is important to emphasise that the Review Panel is not a court and “does not resolve justiciable controversies constituted by the parties competing claims”: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [39] (Leeming JA, Basten JA and Simpson AJA agreeing) (“Keen”). The Review Panel was not required to interrogate Mr Bell to ascertain whether he was dishonestly denying any concerns about motorcycle gangs, nor was it required to ask him further questions with the view of determining which version of events was to be accepted: Amos at [61]; Susak at [78].

10. [91]

    In my view, the primary judge did not err in rejecting Allianz’s complaint of a denial of procedural fairness.

11. [92]

    The point not taken before the primary judge by Allianz contends that when the Review Panel became aware of Mr Bell’s denial of having indicated concerns about motorcycle gangs, it should have brought this matter to the parties’ attention and invited submissions on the issue. Allianz’s complaint is of a “practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ) (“Lam”).

12. [93]

    Allianz submitted that there has been a denial of procedural fairness as the plurality stated in Nathanson at [33] (Kiefel CJ, Keane and Gleeson JJ):

13. [94]

    The Review Panel was aware of Mr Bell’s reports made to Dr Hyde, Assessor Samuell and the Medical Assessor of his concerns about motorcycle gangs. Further, the Review Panel had before it the decision of the Medical Assessor that noted the primary cause of Mr Bell’s PTSD was related to his fear of motorcycle gangs. All of that was disclosed in the Review Panel’s reasons under the heading “Evidence considered”.

14. [95]

    Furthermore, it was clear to the Review Panel that Allianz was contending in its submissions that Mr Bell’s psychological symptoms were caused by that fear and did not result from the use or operation of the motorcycle.

15. [96]

    It would have been plainly obvious to the members of the Review Panel that Mr Bell’s denial was inconsistent with his prior reporting. It is difficult to see how inviting Allianz to make further submissions could have made a material difference to the Review Panel’s decision. Allianz did not explain how if it was given the opportunity to make further submissions, there was a realistic possibility that a different decision could have been made but for the denial of procedural fairness: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2]-[3], [38]-[39] (Kiefel CJ, Gageler, Keane and Gleeson JJ), [85]-[86] (Gordon and Steward JJ); LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

16. [97]

    No practical injustice has been demonstrated as to give rise to a denial of procedural fairness: Lam at [37] (Gleeson CJ). Accordingly, I would reject Ground 1 of the appeal.

17. [98]

    As to Ground 2, Allianz submitted that the Review Panel was required to conduct the assessment of the degree of permanent impairment under s 7.21 of the MAI Act, which is to be made in accordance with the Motor Accident Guidelines. Allianz noted that there was specific guidance as to the evaluation of impairment provided under cll 6.17-6.18 of the Motor Accident Guidelines, which required the Review Panel to review and evaluate all the available evidence before it. Allianz cited the observations of Brereton JA in Lederer v Insurance Australia Ltd t/as NRMA Insurance [2022] NSWSC 322; (2022) 99 MVR 29 at [37] (“Lederer”) and the reasoning of Simpson JA in Dominice v Allianz Australia Insurance Ltd [2017] NSWCA 171; (2017) 81 MVR 249 at [61], [70] (“Dominice”). Allianz further referred to Walton J’s observations in Insurance Australia Group Limited t/as NRMA Insurance v Saraceni [2020] NSWSC 1045; (2020) 93 MVR 433 at [114]-[115] (“Saraceni”).

18. [99]

    Allianz contended that having regard to the reasoning of Simpson JA in Dominice, it was insufficient compliance with cl 6.41 of the Motor Accident Guidelines for the Review Panel to only merely refer to the existence of an inconsistency. Allianz argued that something more was required in the circumstances of this case to justify compliance. Especially in the face of a presentation that was inconsistent with medical records, the Review Panel was required to adequately explore or explain the reasoning by which it had reached its conclusion. Allianz pointed out that the inconsistency related to a central element of the dispute between the parties, which was precisely what specific event or events had actually caused Mr Bell’s psychological injury that the Review Panel ultimately diagnosed.

19. [100]

    Further, it was Allianz’s view that the Review Panel did not attempt to explore or engage Mr Bell about the inconsistencies between histories. Allianz submitted that the Review Panel failed to comply with the Motor Accident Guidelines and thereby constructively failed to exercise its jurisdiction and as a result there had been a denial of procedural fairness.

20. [101]

    Allianz contended that a narrow application of cl 6.41 of the Motor Accident Guidelines was not appropriate in psychological injury cases where the “objective evidence” is substantially limited compared to a physical assessment.

21. [102]

    As to Ground 2, Mr Bell submitted that the inconsistencies which cl 6.41 of the Motor Accident Guidelines is aimed at addressing are related to the Medical Assessor’s or the Review Panel’s clinical findings and the primary judge had correctly characterised the requirements of that clause. Mr Bell contended that Allianz’s reliance on the decisions of Dominice and Saraceni was misplaced, as those cases involved quite different circumstances, and related to specific clinical findings of the Review Panel and clearly can be distinguished from the present case. Mr Bell argued that cl 6.41 was operative on inconsistency found in clinical findings and not merely upon significant differences between a clinical finding when compared to another. Mr Bell further submitted that the Review Panel’s function is neither arbitral nor adjudicative; its role was not to resolve the dispute about Mr Bell’s inconsistencies in reporting by choosing between competing arguments, but to form its own opinion on the medical question referred to it and explain its actual path of reasoning: Wingfoot at [47].

22. [103]

    The assessment of WPI is to be made in accordance with the Motor Accident Guidelines and is required to be assessed as a percentage: s 7.21(1) of the MAI Act. The Motor Accident Guidelines (version 9.1) will be referred to as this was the version in force at the time of the Review Panel’s assessment and relied upon by the parties.

23. [104]

    Clauses 6.17 and 6.18 of the Motor Accident Guidelines provide:

24. [105]

    Clauses 6.40 and 6.41 of the Motor Accident Guidelines provide:

25. [106]

    The reference in Allianz’s submissions to the observations of Brereton JA in Lederer at [37], that cl 1.17, the predecessor to cl 6.17 of the Motor Accident Guidelines, “mandates that an assessor must evaluate the available evidence” appears to be made in the context of its argument about the primary judge’s construction of cl 6.41.

26. [107]

    Allianz’s complaint is that the primary judge (at PJ[45]) in dealing with Ground 3 of the summons, confined the obligation imposed on the Review Panel under cl 6.41 to inconsistency:

27. [108]

    Clause 6.41 in its terms refers to “inconsistencies between the medical assessor’s clinical findings”. The clause is identical to cl 1.43 of the former Motor Accidents Authority “Guidelines for the assessment of the degree of permanent impairment of an injured person” dated 1 October 2007 and issued under s 44(1)(c) of the MAC Act (published in the New South Wales Government Gazette, No 90, 13 July 2007, at 4581). The absence of any change in cl 6.41 suggests that the focus remains on inconsistencies in “clinical findings”. This is hardly surprising as the Review Panel’s task is to apply its expertise to the medical assessment before it.

28. [109]

    The dispute in Dominice was whether the claimant had suffered an injury to her shoulders attributable to her motor accident. In Dominice, Simpson JA at [61] (with whom Basten JA and Emmett AJA agreed with additional reasons) considered that cl 1.43 “offers a guard against the drawing, unfairly, of conclusions about inconsistencies detected in a claimant’s presentation”. Her Honour found that the medical assessor “needed to investigate the discrepancies between Ms Dominice’s presentation to Dr Kenna 10 months earlier and her presentation to him, as well as the inconsistencies he noted in her presentation to him”. The inconsistencies in Dominice were of clinical findings and not in prior reporting history.

29. [110]

    In Saraceni, Walton J at [114], appears to have been of the view that cl 1.41 of the Motor Accident Guidelines which applied at the time of Mr Saraceni’s accident and is in the same terms as cll 1.43 and 6.41, guards “against the unfairness of conduct (relating to inconsistencies in medical records or histories)”.

30. [111]

    There may be some cases where cl 6.41 applies to a clinical assessment of a psychological injury, however, there is nothing in the Motor Accident Guidelines which supports an extension of the obligation under cl 6.41 to an inconsistency in a reporting history that has no relevance to the clinical assessment. The inconsistency in Mr Bell’s reporting did not play any part in the clinical assessment of PTSD and Major Depressive Disorder. The inconsistency in reporting was solely relevant to the issue of causation. I do not detect any error in the primary judge’s construction of cl 6.41.

31. [112]

    As no error has been established, I would reject Ground 2 of the appeal.

32. [113]

    Allianz submitted that the issue of what constituted the scope of the motor accident was not only unclear but was highly controversial. Allianz referred to the observations of Basten AJ in Bell No 1 at [12]-[13] citing with approval McColl JA’s reasoning in AAI Ltd at [161], to emphasise that the Review Panel was required to make findings about causation by reference to the physical event or events, and leave it to the court or the PIC to determine whether or not those events constituted a “motor accident”. Allianz contended that the Review Panel instead purported to determine the scope of the motor accident by making a diagnosis of the psychological injury caused by “the subject motor accident”, rather than explaining which event or events had resulted in the injury, so that the court or PIC could determine if any of those events constituted a motor accident within the scope of the MAI Act.

33. [114]

    Allianz argued contrary to the finding by the primary judge at PJ[27], that the “accident” was a “single causative event”, it was apparent the Review Panel did not expressly indicate that and there was nothing in its reasoning permitting that inference to be drawn by her Honour. In oral submissions, Allianz’s counsel, Ms Gumbert, submitted that the following three physical events were not part of the motor accident, being the stealing of the bike; the fear that followed because of the perception of the person who had stolen the bike and that the person who had picked up the thief “were part of an outlaw bikie gang, and there would be retribution for reporting it to police”. [1] Ms Gumbert submitted that the Review Panel had effectively bundled them into the description of the motor accident. In doing so, the Review Panel did not explain which of the specific event or events was the one that is the cause of Mr Bell’s psychological injury. [2]

34. [115]

    Mr Bell submitted that the Review Panel made findings about causation by reference to the physical event or events and correctly left it to the court or PIC to determine whether or not the events constituted a motor accident. In support of that contention, Mr Bell relied on McColl JA’s observations in AAI Ltd at [159]-[163] (Macfarlan and Simpson JJA agreeing). Mr Bell contended that the Review Panel’s reference to “the subject motor accident” was clearly a reference to what is recorded underneath “… [h]istory of the motor accident” and not, as has been suggested by Allianz, an overstepping of the mark. Mr Bell contended that use of these terms did no more than signify the physical event or events upon which the Review Panel formed its conclusions. Mr Bell further submitted that the primary judge was correct in reaching the conclusion that the Review Panel considered the motor accident as a “single causative event” and its findings disclose no error in rejecting Allianz’s submissions.

35. [116]

    Mr Bell submitted that in response to Allianz’s contention of parsing and analysing the motor accident into three separate events, the primary judge’s remarks at PJ[27]-[28] (see [73]-[74] above) are of particular significance, which considered the dissection of events was neither appropriate nor realistic and is outside the function of the Review Panel.

36. [117]

    Both parties relied on what was said by McColl JA in AAI Ltd at [161], which was cited by Basten AJ in Bell No 1 at [12] and is quoted at [64] above.

37. [118]

    As the primary judge observed at PJ[36] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6 (“Liang”), that the reasons of the Review Panel are “meant to inform and not to be scrutinised in over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. Furthermore, there should be a degree of tolerance for looseness in the language of the Review Panel, unhappy phrasing of the Review Panel’s thoughts or verbal slips: Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J); Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [76]-[77] (Bell P, Ward JA agreeing).

38. [119]

    More recently, Bell CJ and Kirk JA in Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 said at [16]:

39. [120]

    In its reasons, the Review Panel made reference to Basten AJ’s judgment in Bell No 1. Reading the Review Panel’s reasons, fairly and as a whole, and not minutely and finely with an eye attuned to the perception of error, it is reasonable to infer that the members of the Review Panel did not disregard Basten AJ’s judgment and did not determine the scope of the motor accident.

40. [121]

    There will be cases where a Review Panel is unable to attribute the cause of an injury to a particular physical event or events. This may be so when there is a combination of events that occur rapidly and a person suffers a psychological injury.

41. [122]

    The CCTV footage reveals how quickly the events surrounding the attempted theft of Mr Bell’s motorcycle took place. It is hardly surprising that the Review Panel did not determine that the pushing of the motorcycle towards Mr Bell by the thief so that it fell on him, with the foot peg causing a flesh wound, had no role to play in causing Mr Bell’s psychological injury. The Review Panel was entitled to consider all of the events in combination and determine that those events caused Mr Bell’s psychological injury.

42. [123]

    I agree with the primary judge at PJ[23]-[24], that the references to the “motor accident” in the Review Panel’s reasons were “nothing more than a general descriptor” and the Review Panel proceeded on the basis of a single causative event.

43. [124]

    I would reject Ground 3 of the appeal.

44. [125]

    Allianz submitted that the principles as to the standard to be met in discharging a duty to give reasons and their operation in relation to s 7.23(7) of the MAI Act were not correctly applied by the Review Panel. Allianz referred to the High Court’s statement of principle in Wingfoot at [55], which explained the standard of reasons required to be set out by the Review Panel.

45. [126]

    Allianz advanced three arguments in support of its contention. It was first argued that the Review Panel had failed to explain which events constituted the “motor accident” causing Mr Bell’s psychological injury. Especially as the events were disputed, in these circumstances, it was insufficient for the Review Panel to merely refer to the motor accident as a general descriptor. Secondly, the Review Panel failed to explain on what basis and why they accepted Mr Bell’s self-reporting during the examination, when it was clear he had in fact given inconsistent evidence to the other doctors. Thirdly, the Review Panel’s reasons were subject to internal inconsistency as they set out the inconsistency in Mr Bell’s reporting but stated there was no inconsistency (see [68] above).

46. [127]

    Allianz submitted that a statement of reasons is inadequate if it states only a conclusion with no reasons. Allianz further submitted that the Review Panel’s reasons are silent in critical respects and cannot be filled by necessary inference referring to the reasoning of Leeming JA in Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [6] (Meagher JA agreeing) (“Zahed”).

47. [128]

    Mr Bell submitted that the Review Panel’s obligation to provide reasons only existed in respect of matters it was statutorily obliged to undertake such as to resolve medical disputes and adequate reasons were provided for the conclusions it formed relying on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [62]-[69] (McHugh, Gummow and Hayne JJ). Mr Bell contended that the Review Panel had complied with the standard of reasons required and was consistent with the principles described by the High Court in Wingfoot at [55].

48. [129]

    Mr Bell argued that the Review Panel was not required to decide the dispute or to choose between the competing arguments as to arbitrate or adjudicate upon the correctness of the competing contentions or medical opinions, its function was to give its own medical opinion on the medical question referred by applying its own experience and expertise: Wingfoot at [47]. Mr Bell further submitted that it was evident the Review Panel set out the reasons for its findings in respect of the matters it was obligated to undertake.

49. [130]

    As to the challenges of internal consistency, Mr Bell pointed out that the remarks pertaining to consistency were regarding clinical presentation and not the controversy that existed between the parties regarding s 1.9 of the MAI Act.

50. [131]

    There was a deal of repetition in Allianz’s submissions and much of their complaints in this ground of appeal have been dealt with.

51. [132]

    There is an assumption by Allianz that the Review Panel accepted Mr Bell’s self-reporting during the examination and a complaint that the Review Panel failed to explain why the members accepted that report. It does not necessarily follow from the Review Panel’s conclusion that all of the events in combination caused the psychological injury, the Review Panel accepted what they were told by Mr Bell.

52. [133]

    The collision of the motorcycle with Mr Bell’s leg did not have to be the sole cause of Mr Bell’s psychological injuries “as long as it is a contributing cause which is more than negligible”, which is the subject of cl 6.7 of the Motor Accident Guidelines.

53. [134]

    In any event, the Review Panel was neither required to choose between the competing arguments of the parties nor explain how it resolved the inconsistencies in Mr Bell’s reporting in its reasons. The Review Panel was obliged to meet the standard required as expressed by the High Court in Wingfoot at [55], to “explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.

54. [135]

    Having considered the Review Panel’s reasons, read fairly and as a whole, I am satisfied that the Review Panel adequately disclosed its reason for the decision that the accident was a cause of Mr Bell’s psychological injuries. There is no critical gap in the reasoning to be filled by necessary inference: Zahed at [6], [8].

55. [136]

    The primary judge correctly found at PJ[41] that the Review Panel had explained its path of reasoning in sufficient detail to enable a court to see whether the opinion did or did not involve an error of law and met the standard required by Wingfoot.

56. [137]

    Allianz’s complaint of internal inconsistency fails when the Review Panel’s reasons are read fairly and as a whole. The Review Panel’s comments on consistency plainly related to Mr Bell’s clinical presentation which “was internally consistent and consistent with the documentation provided”.

57. [138]

    I would reject Ground 4 of the appeal.

58. [139]

    Allianz submitted that the Review Panel did not respond to the substance of their argument advanced as it failed to identify the specific event or events that caused Mr Bell’s psychological injury and whether they constituted the events prior or subsequent (in the nature of a novus actus interveniens) to the motor accident. Allianz contended that the Review Panel failed to deal with the substance of their argument by not taking into consideration its “substantial clearly articulated argument”, and by not stating its reasons in a way that enabled identification of which event or events caused Mr Bell’s injuries.

59. [140]

    Allianz further submitted that the Review Panel’s failure “to respond to a substantial, clearly articulated argument relying upon established facts”, can amount to both a constructive failure to exercise jurisdiction and a failure to accord procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ, with whom Hayne J agreed) (“Dranichnikov”); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [63] (Black CJ, French and Selway JJ).

60. [141]

    Mr Bell submitted that Allianz’s submissions on this issue were contrary to what is required by the Review Panel established by McColl JA in AAI Ltd. It was not the Review Panel’s role to determine the events that constituted the motor accident, as observed by Basten AJ in Bell No 1 at [13]. This determination was a “legal proposition” which is not required to be addressed by the Review Panel. Mr Bell stated it was clear the Review Panel made findings about causation including referring to the physical events identified under the heading “History of the motor accident”.

61. [142]

    Allianz’s complaint is that the Review Panel failed to respond to “a substantial, clearly articulated argument relying upon established facts”: Dranichnikov at [24]. Two arguments were raised in support of this submission. The first argument, that the Review Panel failed to respond by not identifying the specific event or events that caused Mr Bell’s psychological injury has been considered and rejected.

62. [143]

    The second argument is that the Review Panel failed to respond by not determining whether the events that caused Mr Bell’s psychological injury constituted events prior or subsequently (in the nature of a novus actus interveniens) to the motor accident.

63. [144]

    The primary judge at PJ[52] correctly rejected this submission as misconceived, because it was “underpinned by an assertion that the [Review Panel] should have, (impermissibly), determined what constituted a motor accident”.

64. [145]

    It is regrettable that Allianz repeated this argument on appeal which was plainly unpersuasive and at odds with its submissions concerning the legal principles arising in AAI Ltd and Bell No 1. The Review Panel is not a court and no part of its function was to adjudicate the dispute by determining the scope of the motor accident. The Review Panel’s role was to determine a “quintessentially factual issue” being Mr Bell’s assessment of WPI: Keen at [40].

65. [146]

    I would reject Ground 5 of the appeal.

Conclusion and orders

1. [147]

   No submission was made to the contrary that costs should follow the event.

2. [148]

   Accordingly, I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the costs of the appeal.