Qiming Zhou
Senior Associate
CTP Insurance, Insurance
The Function of a Medical Assessor is to consider the Medical Question: Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351
12 November, 2024
In Brief
- It is not the Medical Assessor’s function to determine whether an incident falls within the statutory definition of a motor accident.
- As a Medical Assessor’s function is to determine the medical question, their duty to provide sufficient reasons means providing sufficient reasons in respect of the medical question.
- Clause 6.41 of the Motor Accident Guidelines (the Guidelines) is concerned with clinical inconsistencies, not inconsistencies in accounts.
Facts
The Supreme Court handed down its decision in Allianz Australia Insurance Limited v Bell [2024] NSWSC 1351 on 29 October 2024.
On the day of the accident, the Claimant chased a man attempting to steal his motorcycle. The man pushed the motorcycle towards the Claimant, so that it fell on him. The man was then picked up by another motorcycle, which then drove towards the Claimant. The Claimant formed the belief that the two were members of a motorcycle gang. The Claimant sustained psychological injuries as a result of these events.
The Medical Review Panel found that the Claimant’s psychological injury was caused by the motor accident and gave rise to permanent impairment above 10%.
The Insurer sought judicial review of the Medical Review Panel’s decision, arguing that the Panel impermissibly determined the scope of the accident, did not provide sufficient reasons and did not follow the Guidelines.
Supreme Court Reasons
Justice Lonergan cited the Court of Appeal in AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 (“AAI Ltd”) at [161] and reaffirmed that it is not the medical assessor’s function to determine whether an incident falls within the statutory definition of a motor accident.
Her Honour succinctly framed the relevant considerations to assess the correctness of the Medical Review Panel’s approach as: (i) whether the Panel made findings about causation by reference only to the physical event(s) and (ii) whether the Panel’s reasons are adequate, and properly address the requirements of the Guidelines.
Justice Lonergan rejected all five grounds of review raised by the Insurer.
Ground 1
The Insurer submitted that the Medical Review Panel impermissibly determined the scope of the motor accident in stating that the psychological injury was caused by the motor accident without explaining which event caused the injury.
Justice Lonergan considered the Panel’s certificate as a whole and interpreted the Panel’s references to the “motor accident” as a general descriptor of the event, and not a decision that the event is a motor accident as a matter of law.
Her Honour added that the Panel correctly construed the accident as a single causative event and any forensic dissection of it would in fact give the appearance of performing a legal evaluation, which it should not.
Ground 2
The Insurer alleged that the Medical Review Panel failed to provide adequate reasons because it did not explain which events constituted the motor accident, why it accepted the Claimant’s self-reporting about the events, and why it accepted the Claimant’s presentation as consistent when different accounts of the events had been recorded by different medical assessors.
Justice Lonergan found these arguments to be misconceived. Her Honour referred to the Court’s statement in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (at [47]) about the function of a medical panel and highlighted that it is the medical question that the medical panel is to answer, and in doing so applying its medical experience and medical expertise.
Applying this principle, Lonergan J held that the Medical Review Panel sufficiently set out its reasons for the assessment of the Claimant’s degree of whole person impairment. Her Honour found that the issue of the Claimant’s account being inconsistent is a matter for determination in the ultimate disposition of the claim, not a matter for the Medical Review Panel.
Grounds 3 and 4
The Insurer submitted that the Medical Review Panel did not put to the Claimant inconsistencies in his accounts about whether his psychiatric injury was due to the stealing and collision or due to fear of retribution by motorbike gangs. This is said to be contrary to clause 6.41 of the Guidelines (Ground 3) and to be in breach of a common law duty to afford procedural fairness to the Insurer (Ground 4).
Justice Lonergan held that clause 6.41 of the Guidelines concerns inconsistency in clinical presentation, not inconsistency in the history of events.
Her Honour held that it is not within the Medical Review Panel’s function to conduct a quasi-judicial inquiry into the inconsistent accounts.
Ground 5
The Insurer alleged that the Medical Review Panel failed to deal with its submissions that the events causing the Claimant’s injuries did not constitute a motor accident.
Justice Lonergan found this ground to be misconceived, because it is not the Medical Review Panel’s function to determine what constitutes a motor accident.
Her Honour added in passing that, in any event, the Medical Review Panel is required to address the central or critical elements of the case, not each discrete argument.
Key Learnings
This case highlights that the medical assessor’s function is concerned with the medical question. Issues concerning what constitutes a motor accident and inconsistent accounts are for determination in the ultimate disposition of the claim. Further, the medical assessor’s duty to give sufficient reasons means sufficient reasons in respect of the medical requestion.
This case also emphasises the importance for the medical assessor to avoid determining what is the motor accident. The medical assessor’s findings about causation should be made by reference to the physical event(s), although using “motor accident” as a general descriptor is acceptable. In addition, the incident should be construed as a single causative event as division of events gives the appearance of a legal evaluation.
