Reviewing the (Narrow) Role of the Review Panel

In Brief

• The role of a Medical Assessor (whether in a primary assessment or as a member of a Review Panel) in a permanent impairment dispute is limited to the assessment of permanent impairment.
• A Medical Assessor is not required to determine disputes, or respond to arguments, about justiciable questions such as whether the events fall within the definition of a “motor accident” or whether some other event constitutes an intervening act which breaks the causal chain.
• It remains the role of a PIC Member of a Judge to determine these kinds of justiciable questions.

Facts

The Court of Appeal handed down its decision in Allianz Australia Insurance Limited v Bell [2025] NSWCA 187 on 15 August 2025.

The Claimant was injured in dramatic circumstances.

The Claimant returned to a carpark to find a man trying to steal his Harley-Davidson motorcycle. It was broad daylight and the Claimant caught the thief red-handed.

The thief tried to start the motorcycle. The Claimant ran towards him. The thief continued in his attempts to get the motorcycle started. He failed but he did not give up. Rather than run away, the thief attempted to steal the motorcycle by wheeling it away manually.

The Claimant continued to run after the thief. When he was close enough, the thief pushed the motorcycle towards the Claimant so that it fell on him.

The footpeg of the motorcycle caused a gash in the Claimant’s leg.

The drama, however, had not yet ended.

The would-be thief’s comrade arrived on the scene. The thief jumped onto the back of his mate’s motorcycle. The rider of the getaway bike drove toward the Claimant before fleeing the scene.

The Claimant feared the thief and his friend were members of a bikie gang.

The Dispute

The Claimant alleged that the accident caused him psychological impairment. A series of disputes unfolded before a Review Panel certified that the accident caused PTSD and a Major Depressive Disorder resulting in 19% WPI.

The Insurer’s application for Judicial Review was unsuccessful in the Supreme Court.

The Insurer lodged an Appeal.

The Controversy

The cause of the Claimant’s psychological condition was controversial given:

1. The initial attempt to steal his motorcycle.
2. The physical injuries the Claimant sustained when the motorcycle was pushed onto him.
3. The Claimant’s fear that the thief and his accomplice where members of a motorcycle gang who might seek retribution.

It was uncertain which of the events caused the Claimant’s psychological injury (and to what extent) and whether items 1 and 3 constituted a “motor accident“.

Further controversy arose when the Claimant asserted before the Review Panel, for the first time, that he had harboured no concerns about motorcycle gang members.

The Issues

The following issues arose for determination:

1. The Procedural Fairness Ground – whether the Insurer was denied procedural fairness because the factual basis and the scope of the medical dispute assessed by the Review Panel was materially different to the medical dispute referred by the parties.
2. The Inconsistency Ground – whether clause 6.41 of the Motor Accident Guidelines applied to inconsistencies between the Review Panel’s clinical findings and the information obtained through medical records.
3. The Causation Ground – whether the Review Panel was required to make causation findings by reference to the events and to leave it to the Court to determine whether those events constitute a motor accident.
4. The Path of Reasoning Ground – whether the Review Panel exposed its actual path of reasoning.
5. The Articulated Argument Ground – whether the Review Panel responded to the Insurer’s substantial and clearly articulated arguments regarding the events which caused the Claimant’s psychological injury.

The Court of Appeal’s Decision

The Court of Appeal, by majority, dismissed the Insured’s appeal for the following reasons:

The Procedural Fairness Ground

Contrary to the history he had previously given, including to the original Medical Assessor, the Claimant reported to the Review Panel that he “had never indicated any concerns about motorcycle gangs“.

The Insurer argued that it was denied procedural fairness because the Panel did not draw this materially inconsistent history to the parties’ attention and invite further submissions.

The Court of Appeal rejected this ground of appeal for the following reasons:

• The Review Panel’s obligation to afford procedural fairness extended to putting “the motorcycle gang issue” to the Claimant and giving him an opportunity to respond.
• The Review Panel was not required, however, to put to the Claimant the various histories he had given because the Panel is not a court and its role is not to resolve the justiciable controversies between the parties.
• The Review Panel, therefore, was not required to interrogate the Claimant to ascertain whether he was being dishonest or to determine which version should be accepted.
• Furthermore, any failure to invite further submissions would not have resulted in any practical injustice to the Insurer because the change in the Claimant’s history was plainly obvious to the Review Panel.

The Inconsistency Ground

Clause 6.41 of the Motor Accident Guidelines (MAGs) reads as follows:

“Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

The Insurer argued that the Claimant’s inconsistent history – about whether he was concerned that the motorcycle thief belonged to a motorcycle gang – was an inconsistency to which clause 6.41 applied.

The Insurer submitted that this inconsistency was critical because it went to the heart of the question regarding whether the Claimant’s psychological injuries were caused by a motor accident or by the broader series of events, including fear of retribution from a motorcycle gang.

In the circumstances, the Insurer argued that clause 6.41 required the Review Panel to do more than merely note the existence of any inconsistency.

The Court of Appeal found that clause 6.41 did not apply to the circumstances for the following reasons:

• There is nothing in the MAGs which supports an extension of the obligation in clause 6.41 to an inconsistency in the Claimant’s reported history that has no relevance to the clinical assessment.
• The Claimant’s inconsistent history regarding his motorcycle gang concerns did not play any part in the clinical assessment of his PTSD or his Major Depressive Disorder.
• The inconsistency in reporting was solely relevant to the issue of causation (which, for the reasons which followed, was not an issue for the Review Panel to determine).

The Causation Ground

As indicated, the cause of the Claimant’s psychological condition was controversial given the initial attempt to steal his motorcycle, the physical injuries the Claimant sustained when the motorcycle was pushed onto him and his fear that the thief and his accomplice where members of a motorcycle gang who might seek retribution.

The Insurer argued that the Review Panel was required to make findings about causation by reference to the physical events and leave it to the court or the PIC to determine whether those events constituted a “motor accident”.

In rejecting this ground, Price AJA, with whom Payne JA agreed, gave the following reasons:

• The CCTV footage revealed that the series of events took place over a short period of time.
• Given how quickly the events occurred, the Review Panel was entitled to find that the physical injury the Claimant sustained when his motorcycle was pushed onto him made a material contribution to his psychological injury.
• The Review Panel was entitled to consider all of the events in combination and determine those events caused the Claimant’s psychological injury.

Justice Ball, however, dissented on this ground of appeal, for the following reasons:

• It was reasonably arguable that there were two separate causative events: (a) the attempted theft of the motorcycle by potential motorcycle gang members, (b) the motorcycle falling on the Claimant and causing him physical injury.
• The task of the Review Panel was to make findings regarding whether one or both of the events caused the Claimant’s psychological injuries.
• Once those findings were made, the Review Panel could leave it to the court to determine whether one or both of the events constituted a motor accident.

The Path of Reasoning Ground

The Court of Appeal accepted that the Review Panel explained its path of reasoning in sufficient detail to enable a court to see whether their opinion did or did not involve any error of law, as required by Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

The Articulated Argument Ground

The Insurer argued that the Review Panel failed to respond to the Insurer’s substantial and clearly articulated arguments that (a) the Review Panel should have identified the specific event or events that caused the Claimant’s psychological injury and (b) whether the event or events that caused the Claimant’s psychological injury were intervening acts which broke the causal chain.

The Court of Appeal rejected this ground of appeal for the following reasons:

• The Review Panel is not a court and it was not its function to adjudicate whether the events which caused the Claimant’s psychological injury constituted a motor accident.
• The Review Panel’s function was limited to assessing the Claimant’s WPI, which it did.
• The Insurer’s arguments therefore went to issues which the Review Panel was not required to determine.

Why This Case is Important

What the Decision was About

The Court of Appeal, in Bell, did not determine whether the theft of the Claimant’s motorbike or whether the Claimant’s fear that bikies may seek to harm him constitutes a “motor accident“, within the meaning of section 1.9 of the Motor Accident Injuries Act 2017 (MAIA) (either alone or in combination with the physical contact between the motorcycle and the Claimant’s body).

The Court of Appeal’s decision was not about what constitutes a “motor accident‘.

Rather, the decision in Bell is about the scope of the Review Panel’s functions.

The Court of Appeal made it clear that the Review Panel is not a court and it is not the Review Panel’s role to decide justiciable issues such as whether the events fall within the definition of “motor accident“.

It follows that the Review Panel was not required to provide procedural fairness on questions related to whether the events were a “motor accident“, or raise inconsistencies which were only relevant to whether the events constituted a “motor accident” or to deal with arguments related to whether the events fell outside the concept of a “motor accident“.

Each ground of appeal fell away for the same overarching reason. It was not the Review Panel’s function to resolve the issue the Insurer placed in dispute.

Further Assessment Pursuant to Section 7.24(1)

 The practical outcome of Bell is that a binding assessment remains in place that the Claimant has sustained permanent impairment above 10%.

Given, however, that it is not the Review Panel’s role to determine justiciable issues between the parties, the Insurer is still able to argue, before the PIC or the Court, whether the events constitute a “motor accident” and/or whether there has been an intervening act which severs the causal chain.

In his Honour’s dissenting Judgment, Ball JA posed this question:

“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 1.9(1) [sic] 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%?”

In my view, the answer to this question is that the Court (or a PIC Member) should refer the permanent impairment dispute back to the PIC for further assessment, pursuant to section 7.24(1) of MAIA, and direct the PIC Medical Assessor to re-assess the Claimant’s WPI based on the findings made by the Court (or the PIC Member) about the scope of the motor accident.

If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner