Layt v Allianz Australia Insurance Ltd

1. [1]

   On 23 February 2016, the plaintiff, Brendan Kane Layt, brought proceedings by way of Summons against Allianz Australia Insurance Ltd as the first defendant (“Allianz”), the State Insurance Regulatory Authority as the second defendant (“the Authority”) and the Review Panel appointed by the Motor Accident Authority as the third defendant (“the Review Panel”).

2. [2]

   The second and third defendants filed submitting appearances and have taken no active part in the proceedings.

3. [3]

   The plaintiff’s Summons seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 of the Certificate and Statement of Reasons issued by the Review Panel on 2 December 2015.

Background

1. [4]

   On 28 January 2011, at the age of 40, the plaintiff was involved in a motor vehicle accident (“MVA”) for which he was admitted to St Vincent’s Hospital.

2. [5]

   Prior to that time, the plaintiff had a considerable history, over many years, of mental illness. The plaintiff has been on a disability pension since 2000, although he worked part-time at a nursery business owned by his family prior to the accident. He ceased all work after the accident in January 2011.

3. [6]

   On 9 May 2011, the plaintiff lodged a motor accident personal injury claim form with Allianz. On 4 March 2015, the plaintiff lodged an application with the Authority for an assessment of his permanent impairment, the level of which was in dispute between himself and Allianz. In the application form, the plaintiff claimed that he suffered from Post‑Traumatic Stress Disorder with ensuing Major Depressive Disorder.

4. [7]

   The dispute was referred to an assessor, Dr Synnott (“the original assessor”), who, on 29 May 2015, issued a certificate certifying the following:

5. [8]

   On 8 July 2015, Allianz made application to the Authority for a review of this certificate. The application was referred to a Review Panel by the Authority. On 2 December 2015, the Review Panel issued a certificate which revoked the certificate of the original assessor, and found that there was no diagnosed psychiatric disorder caused by the MVA.

Original Assessment

1. [9]

   It is convenient to summarise the certificate and reasons of the original assessor.

2. [10]

   The plaintiff was clearly a bad historian. The original assessor described him as vague and unsure. He noted that the plaintiff appeared quite distracted and had difficulty focussing and responding to questions.

3. [11]

   The assessor undertook a mental state examination of the plaintiff in the presence of the plaintiff’s mother. Ultimately, the assessor obtained some of the plaintiff’s medical history – particularly his current medical history – from the plaintiff’s mother.

4. [12]

   The plaintiff’s current functioning was assessed. In particular, the original assessor noted that since the MVA, the plaintiff had not socialised at all, his marriage had broken down and he did not have any ongoing contact with his former wife or his son.

5. [13]

   A review of documentation was undertaken, including a series of expert reports from psychiatrists and discharge summaries from hospitals. The original assessor noted:

6. [14]

   In particular, the original assessor noted that a report of Dr Pusic of 31 July 2014 confirmed the diagnosis of schizophrenia and also that the plaintiff had a problem “… with poor compliance of medication and use of illicit substances”.

7. [15]

   The original assessor also noted the report of Dr C Rikard-Bell of 21 January 2013. Dr Rikard-Bell was of the opinion that Mr Layt had chronic schizophrenia which pre-existed the MVA. According to Dr Rikard-Bell, the plaintiff had suffered no serious injuries in the MVA and there was no detectable psychological injury relating to the MVA.

8. [16]

   The original assessor came to these conclusions about the plaintiff:

9. [17]

   The original assessor went on to make the findings, which I have recorded in [7] above.

10. [18]

    In the assessment of the degree of permanent impairment, the original assessor determined that the plaintiff’s current percentage of whole person permanent impairment was 28% and that this should be reduced by 2.8% to account for the plaintiff’s pre-existing permanent impairment. The 2.8% represented a 10% reduction in the assessed whole person impairment to account for pre-MVA impairment. Accordingly, the assessor arrived at a final percentage of whole person impairment of 25%.

Review Panel Certificate

1. [19]

   On 2 December 2015, the Review Panel decided to revoke the certificate issued by the original assessor and issue a new Certificate. That certificate contained the Review Panel’s conclusion that there was no diagnosed psychiatric disorder which related to the MVA. Accordingly, the Review Panel certified the plaintiff’s whole person impairment as 0%. There were extensive reasons given by the Review Panel. It is convenient to note the relevant parts of those reasons.

2. [20]

   At the initial conference on 24 September 2015, the members of the Panel decided that a re-examination of the plaintiff was necessary in order to reach a decision. Prior to recording that decision, the Review Panel recorded the details of the assessment that they were reviewing. They noted as follows:

3. [21]

   As well as determining that they would undertake a further examination of the plaintiff, and having reviewed the documents with which they were provided, the Review Panel determined that additional information would assist them in making a decision. The information which was requested had a particular focus on the pattern of functioning in the period immediately prior to the MVA. Notice to both parties was issued requesting the provision of further information.

4. [22]

   The examination of the plaintiff was conducted on 20 November 2015 by two of the three members of the Review Panel, being the psychiatrists who were on the Panel. The plaintiff was accompanied at the examination by his mother who remained present for the first part of the assessment.

5. [23]

   The plaintiff’s mother assisted in answering questions on his behalf in order to provide information to the Panel.

6. [24]

   In the course of that interview the plaintiff repeatedly informed the Review Panel of his belief that the MVA had adversely affected him and made him unwell.

7. [25]

   Having taken the plaintiff through his history, and compared that with the history obtained from contemporaneous documents, the Review Panel undertook a mental state examination. The Panel observed that the plaintiff was dishevelled and malodorous and that there was evidence of faecal soiling. The Panel remarked:

8. [26]

   The Review Panel then proceeded to record its deliberations.

9. [27]

   It was immediately apparent to the Panel, both from their own observations of the plaintiff, the history which they took, the mental status examination which they undertook and the data with which they had been provided, that the plaintiff’s schizophrenic illness was clearly established at least by 2000 and had followed the typical relapsing and remitting pathway of chronic schizophrenia since that time.

10. [28]

    The Panel then recorded this:

11. [29]

    The Panel reviewed at some length the documentary material about the plaintiff’s psychosis prior to the accident. It then turned to consider the position immediately after the accident. The Review Panel’s certificate records this:

12. [30]

    The Panel considered the circumstances of the original assessment and then the multiple reports prepared by the plaintiff’s treating psychiatrist, Dr Pusic. Of those reports, the Panel remarked:

13. [31]

    The Panel went on to consider the question of causation and whether there was any evidence of impairment related to the MVA. It expressed its conclusion in this way:

14. [32]

    The Panel went on to state its decision in this way:

15. [33]

    In light of its findings, the Panel concluded that there was no diagnosed psychiatric disorder related to the MVA and on that basis found that the plaintiff’s whole person impairment as a consequence of the MVA was not greater than 10%.

Amended Summons

1. [34]

   When the plaintiff’s Summons came on for hearing, the plaintiff was granted leave to file in Court an Amended Summons dated 6 June 2016, and which was filed in Court on 17 June 2016.

2. [35]

   It is convenient to set out the grounds of that Amended Summons. They are as follows:

Adjustment Disorder with Anxiety and Depressed Mood: Grounds 1, 2 and 3

1. [36]

   Both the original assessor and the psychiatrists on the Review Panel approached the diagnosis of the plaintiff by reference to the Diagnostic and Statistical Manual of Mental Disorders (4th Edition) (“DSM IV”). This approach accords with clause 7.13 of the Guidelines for the Assessment of the Degree of Permanent Impairment published by the Motor Accidents Authority on 1 October 2007.

2. [37]

   The parties to these proceedings agreed that it was open to the Court to consult DSM IV for the purpose of understanding the definitions of the diagnoses identified by either the original assessor or the Review Panel.

3. [38]

   The original assessor diagnosed “Adjustment Disorder with Anxiety and Depressed mood”.

4. [39]

   According to DSM IV, the essential feature of an Adjustment Disorder is a psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms.

5. [40]

   There are five diagnostic criteria necessary for the diagnosis of an Adjustment Disorder. They are:

6. [41]

   There are sub-types of Adjustment Disorder which are separately coded in DSM IV. One such sub-type is an Adjustment Disorder with Mixed Anxiety and Depressed Mood. DSM IV notes that this sub-type should be used when the predominant manifestation is a combination of depression and anxiety.

7. [42]

   DMS IV also categorises disorders into five “axis”. They are:

8. [43]

   It should also be observed that DSM IV categorises Post-Traumatic Stress Disorder as an Anxiety Disorder characterised by the re-experiencing of an extremely traumatic event accompanied by symptoms of increased arousal and the avoidance of stimuli associated with the trauma. An Anxiety Disorder falls on Axis I.

9. [44]

   The plaintiff submitted that whilst the Review Panel considered the diagnosis of chronic paranoid schizophrenia and Post-Traumatic Stress Disorder, it failed to consider the separate diagnosis of Adjustment Disorder caused by the MVA and that, because it failed to consider that diagnosis, it also failed to consider whether that Adjustment Disorder had resulted in any permanent impairment.

10. [45]

    This submission is based upon two underlying propositions. The first is that Dr Pusic, the plaintiff’s treating psychiatrist, in a report dated 17 February 2014, which was before both the original assessor and the Review Panel, diagnosed the plaintiff with “an adjustment disorder as a result of him being involved in a motor vehicle accident on 28 January 2011…”. Dr Pusic thought that there may have been “a brief exacerbation of anxiety and possibly psychotic symptoms” flowing from the accident. Dr Pusic concluded in this report that the MVA did not lead to any acute relapse of the schizophrenic illness requiring admission to hospital, but may have caused a “mild aggravation” of the plaintiff’s schizophrenic illness which persisted for some six to twelve months.

11. [46]

    The original assessor, at page 10 of his certificate and reasons, concluded that following the MVA there had been a deterioration in the plaintiff’s pre‑existing schizophrenia. He went on to say:

12. [47]

    The second proposition underlying the plaintiff’s submission is that the Review Panel did not deal with the specific diagnosis of an Adjustment Disorder and that it failed to mention it entirely. In those circumstances, the plaintiff submitted that, given the importance of the Adjustment Disorder to the original assessor, the fact that the Review Panel failed to mention it necessarily demonstrates that it (the Review Panel) did not consider it.

13. [48]

    Allianz made three principal submissions with respect to these contentions. The first was that the Review Panel was not obliged by law to specifically consider whether the plaintiff had a diagnosis of Adjustment Disorder with mixed Anxiety and Depressed mood which related to the MVA. It submitted that s 58 of the Motor Accidents Compensation Act 1999 (“the MAC Act”), which provides that the task of an assessor is to determine whether the degree of permanent impairment of the injured person as a result of the injury caused by the MVA is greater than 10%, did not require the Review Panel to consider this specific diagnosis. In other words, Allianz submitted that the Review Panel was not required to nominate or identify the injuries or incapacities which formed the basis of its assessment of the plaintiff’s permanent impairment. Allianz concluded this submission by reference to s 63 of the MAC Act, which provides in subsection 3A as follows:

14. [49]

    Accordingly, Allianz submitted that the Review Panel, correctly, as a matter of law, approached its task in making an overall assessment of whether the plaintiff’s psychiatric state, as caused by the accident, resulted in any permanent impairment of greater than 10%.

15. [50]

    Allianz next submitted that the Review Panel was excused from considering the existence of an Adjustment Disorder with Anxiety and Depressed Mood because the plaintiff did not make a substantial and clearly articulated argument to the effect that it should specifically consider that diagnosis. Allianz submitted that the mere reference by the plaintiff to the original assessor’s findings did not satisfy the “substantial and clearly articulated argument” test described by the Court of Appeal in Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514 at [93]-[94].

16. [51]

    Finally, Allianz submitted that the Review Panel did in fact consider the issue of whether the plaintiff sustained a reactive condition or mood disorder as a result of the MVA, and that this necessarily included considering whether an Adjustment Disorder ought to be diagnosed.

17. [52]

    In response to this last submission, the plaintiff submitted that the passages relied upon by Allianz to demonstrate that the Review Panel considered an Adjustment Disorder do not in fact do so. The plaintiff submitted that the language used by the Review Panel indicated that it did not consider and exclude the specific diagnosis made by the original assessor and, as a consequence, did not consider the issue of whether there was any resultant permanent impairment.

Discernment

1. [53]

   In its deliberations, the Review Panel first considered the question of psychiatric diagnosis by looking at the data from the documents, the mental status assessment which it performed, and the disorganised history provided by the plaintiff. The Review Panel found on the basis of the objective evidence that, at the time of their assessment, the plaintiff was suffering from an acute psychotic episode which was part of a chronic schizophrenic illness which commenced in about 1996, and which was clearly established by 2000. The Review Panel, in considering the plaintiff’s condition since then, concluded that there was evidence of “… a chronic psychotic illness which had followed the typical relapsing and remitting pathway of schizophrenia”. As earlier mentioned, schizophrenia is a disorder which is categorised by DSM IV as an Axis I disorder.

2. [54]

   Immediately after considering and satisfying itself as to the diagnosis of both acute and chronic schizophrenia, which conclusion is not said to be erroneous, the Review Panel then described its deliberations.

3. [55]

   The relevant passage is that set out at [28] above. The Review Panel there records that it looked specifically for “… evidence of a reactive condition”.

4. [56]

   The Review Panel went on to consider documents “… which related to the nature of motor vehicle accident”. Based on those documents, it concluded that there was no evidence to suggest “… any form of organic cerebral disturbance resulting from the motor vehicle accident. The objective data are consistent with the conclusion that the motor vehicle accident was not a catastrophic event”.

5. [57]

   The Review Panel then considered the documents regarding the clinical course of the plaintiff’s psychotic illness, both before and after the MVA. It specifically considered the entries made by Dr Rombola, the plaintiff’s general practitioner, in the weeks after the accident and up to and including the consultations which occurred over several months after May 2011. The Review Panel also reviewed hospital admission records which covered the period after the MVA and included extensive records in 2013.

6. [58]

   The Review Panel went on specifically to note that it had considered the reports of the expert psychiatrists, Dr Pusic (the plaintiff’s treating psychiatrist), Dr Rikard-Bell and Dr Thomas Clarke. As well, the Review Panel specifically noted the certificate and reasons of the original assessor, an expert psychiatrist. Thus, it had before it the opinion of at least four expert psychiatrists. These opinions and conclusions were not all identical. The Review Panel’s task was to establish for itself the diagnosis which it regarded as the correct one. In considering the reports of Dr Thomas Clarke, the Review Panel noted that Dr Clarke recorded symptoms of anxiety and depression at various times after the MVA. Having noted all of those matters and the nature of the MVA, the Review Panel in its reasons then said this:

7. [59]

   The Panel considered whether there was any differential diagnosis, such as an organic psychosis, and determined that there was not. It then said this:

8. [60]

   Hence the Review Panel concluded that the psychiatric injury, namely Post-Traumatic Stress Disorder with ensuing Major Depressive Disorder, which was the injury originally claimed by the plaintiff, was not established as having, if it existed, any relationship to a permanent disability of the plaintiff. It further determined that there was no diagnosed psychiatric disorder relating to the MVA.

9. [61]

   The plaintiff’s submission that the Review Panel did not specifically refer to the diagnosis of Adjustment Disorder with Anxiety and Depression is correct, but only in the sense that those words do not appear in the certificate and reasons of the Review Panel.

10. [62]

    However, I am not satisfied that the mere failure to mention this diagnosis meant that the Review Panel did not consider it. On the contrary, I am satisfied that it did.

11. [63]

    I have come to that conclusion for the following reasons: -

12. [64]

    These matters in combination lead me to conclude that the Review Panel did consider the diagnosis of Adjustment Disorder with Anxiety and Depressed Mood, and was not persuaded on all of the material before it that there was any other psychiatric condition diagnosable except for the chronic schizophrenia.

13. [65]

    In coming to these conclusions, it is necessary for this Court to keep in mind that one does not approach the reasons of the Review Panel as though they are the equivalent of a judgment, or a form of judicial reasons resolving a dispute in an adversarial context. Section 63(3A) of the MAC Act obliges the Review Panel to undertake “… a new assessment of all the matters with which the medical assessment is concerned”. The Court of Appeal identified the function being exercised by the Review Panel under the MAC Act in Frost v Kourouche [2014] NSWCA 39; (2014) 86 NSWLR 214 as being sufficiently analogous to the Victorian motor accident scheme described by the High Court of Australia in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.

14. [66]

    In Wingfoot, the High Court was dealing with an issue relating to the adequacy of reasons given by a Medical Panel. The statutory obligations are sufficiently similar. In NSW, s 61(9) of the MAC Act provides that the Certificate is to “… set out the reasons for any finding by the medical assessor … as to any matter certified in the certificate”. In Victoria, the legislation obliged the Panel to provide “… a written statement of reasons for [its] opinion”. At [47] in Wingfoot, the High Court said:

15. [67]

    In this case, it is clear from the lengthy statement of its reasons, that the Review Panel laid bare the material upon which its opinion was formed, and the reasoning which led to its ultimate conclusion. In so doing, it fulfilled its statutory obligations.

16. [68]

    I am unpersuaded that the plaintiff has demonstrated any jurisdictional error or any error on the face of the record in any of the ways referred to in the grounds of the Amended Summons with respect to the Review Panel’s consideration of the diagnosis by the original assessor of an Adjustment Disorder with Anxiety and Depressed Mood.

17. [69]

    It follows that Grounds 1, 2 and 3 do not succeed.

18. [70]

    Equally, since Grounds 5 and 6 related to a failure to consider whether the Adjustment Disorder resulted in an aggravation of the pre-existing schizophrenia and a failure to give adequate reasons in this respect, they too must fail. That is because I am satisfied that the Review Panel considered whether there was a diagnosis of Adjustment Disorder available, found that there was not, and therefore did not commit any jurisdictional error or error on the face of the record in failing to find that there was any exacerbation of the pre-existing schizophrenia because of an Adjustment Disorder. In those circumstances, Grounds 5 and 6 cannot succeed.

Failure to Consider General Practitioner’s Notes: Ground 4

1. [71]

   The plaintiff contended that in the period from 1 July 2009 through to the accident on 28 January 2011, he attended his general practitioner, Dr Rombola, on nine occasions. The notes of those attendances were before the Review Panel. The plaintiff contended that, although the Review Panel identified the plaintiff’s “pattern of functioning” prior to the MVA as being relevant to its determination, the Review Panel failed to consider these notes and whether they supported a conclusion that the MVA exacerbated the plaintiff’s pre-existing schizophrenia.

2. [72]

   The plaintiff submitted that because the Review Panel identified his pattern of functioning prior to the accident as a relevant consideration, its failure to have regard to the general practitioner’s notes which were produced to inform that question demonstrated that it (the Review Panel) ignored relevant material in the sense discussed in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. The plaintiff submitted that the failure to consider these notes constituted a breach of procedural fairness. It was also submitted that the Review Panel’s failure to mention that it had considered these notes was a breach of its duty to give reasons.

3. [73]

   Allianz submitted that a fair reading of the Review Panel’s certificate and reasons demonstrates that it in fact considered the general practitioner’s notes carefully and took them into account. As well, Allianz submitted that the Review Panel was not required to refer to all of the documentation with which it was provided in its certificate and reasons, even if it had read them. Further, Allianz submitted that a failure to mention the general practitioner’s notes does not conclusively establish that the Review Panel did not consider them: see Allianz Australia Insurance Ltd v Cervantes [2002] NSWCA 244 at [22]; (2002) 24 NSWCCR 101.

4. [74]

   Finally, Allianz submitted that the relevance of the plaintiff’s pre-accident “pattern of functioning” was to the deduction of 10% applied by the original assessor from the level of whole person impairment which he determined was established. Considering that the Review Panel determined that there was no psychiatric diagnosis which resulted in any degree of whole person impairment caused by the MVA, there was no need for the Review Panel to consider the content of the general practitioner’s notes for the purpose of assessing any deduction to be applied.

5. [75]

   Allianz submitted that it was clear that the Review Panel had looked at the whole of the plaintiff’s pre-accident history in order to determine the diagnosis of the plaintiff as suffering from schizophrenia.

Discernment

1. [76]

   In my view, there is no merit in the plaintiff’s submission.

2. [77]

   The Review Panel sought out Dr Rombola’s notes. It clearly read them. It referred to some of them, namely December 2008, March 2009 and July 2009. It referred to a number of them which recorded consultations with the plaintiff immediately after the accident in January 2011.

3. [78]

   The Review Panel specifically stated that it considered all of the materials with which it was provided. There is no reason to find otherwise. It went on to say that its certificate and reasons would highlight “the salient materials most directly related to the decisions which are required of the panel”. There is no reason to think that the Review Panel ignored the general practitioner’s notes. It was not obliged to refer to every line and every note to demonstrate that it had considered the material, and taken it into account.

4. [79]

   As well, the Review Panel, having reviewed Dr Rombola’s notes, observed that no reference was made to an exacerbation of the plaintiff’s acute psychotic symptoms after the MVA, in contrast to before the MVA when Dr Rombola recorded psychotic symptoms. This strongly implies that the pre‑MVA notes were read and considered.

5. [80]

   Dr Rombola’s notes were put in evidence before this Court. The plaintiff’s submissions extracted the relevant entries. The last three entries noted examinations of the plaintiff by Dr Rombola in July, September and December 2010. One was prior to seeing Dr Pusic, with whom the plaintiff was going to discuss his depression; the other two revealed that the plaintiff was generally in good spirits and stable. There is simply nothing about the content of these notes which the plaintiff refers to in his submissions that would call for specific notation and mention by the Review Panel in its consideration of the plaintiff’s diagnosis.

6. [81]

   There is no reason to think, and there is no demonstrated error of either a jurisdictional kind or on the face of the record which would indicate, that the Review Panel failed to have regard to these notes.

7. [82]

   It follows that Ground 4 must also be dismissed.

Conclusion

1. [83]

   The plaintiff has failed to satisfy me that there has been any jurisdictional error or error on the face of the record with respect to the decision of the Review Panel.

2. [84]

   It follows that the plaintiff’s Amended Summons must be dismissed.

3. [85]

   There is no reason to impose an order as to costs other than the usual order.

Orders

1. [86]

   I make the following orders:

   1. (1)

      Amended Summons filed 17 June 2016 dismissed.

   2. (2)

      Plaintiff to pay the defendants’ costs.