Two car accidents, nine days apart, but did either cause a psychological injury?

In Brief

• Under section 131 of the Motor Accidents Compensation Act 1999 (MACA), an injured person is entitled to damages for non-economic loss if they have a greater than 10% whole person impairment as a result of the injuries sustained in the accident.
• Under section 132 of MACA, if there is a dispute about the degree of the Claimant’s whole person impairment, damages for non-economic loss cannot be awarded and disputes must be referred to a Medical Assessor for determination before the Personal Injury Commission.
• Section 44 of MACA provides the degree of permanent impairment of an injured person is to be made in accordance with the Motor Accident Guidelines (MAGs).
• Causation is defined in the Glossary at page 316 of the AMA4 Guides and quoted in para 6.6 of the MAGs.

Facts

On 26 July 2024, the Personal Injury Commission published its decision in AAI Limited t/as GIO v Zalghout [2024] NSWPICMP 452.

The Claimant was involved in two motor vehicle accidents on 16 July 2017 and 25 July 2017.

As a result of the accidents, the Claimant alleged sustaining injuries to his cervical spine, left spine and developing a psychological injury.

The matter proceeded to the Commission for whole person impairment dispute.

The original Medical Assessor accepted the Claimant developed a chronic Major Depressive Disorder comorbid with a somatic symptom disorder from both accidents which gave rise to a permanent impairment of 12%. In respect to causation, the original Medical Assessor apportioned 10% for the accident on 16 July 2017 and 90% for the second accident on 25 July 2017.

The Insurer lodged a review application alleging the original Medical Assessor failed to adequately consider/address its original submissions and evidence relevant to causation and failed to provide adequate reasons or the determination of causation.

The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was referred to the Review Panel.

The Review Panel

The Review Panel affirmed the following principles in respect to causation:

• Causation involves a medical decision and a non-medical informed judgment; page 316 of the AMA4 Guides / para 6.6 of the MAGs.
• The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.
• Sections 5D and 5E of the Civil Liability Act apply to MACA in determining the issues of causation.
• AAI Limited t/as AAMI Limited v Jacobs [2024] NSWSC 371 and Raina v CIC Allianz Insurance Ltd [2021] NSWSC 13 were both cited.

The Review Panel diagnosed the Claimant with Somatic Symptom Disorder and Persistent Depressive Disorder but the Panel did not accept causation from either of the motor vehicle accidents because:

• Both accidents were minor and the Claimant was able to drive home after each accident.
• The treating general practitioner records revealed an absence of contemporaneous complaint of accident-related psychological symptoms. The first complaint made was in April 2019 of anxiety, stress and depression, nearly two years after the first accident.
• The expert reports and the pre-accident treating records demonstrated the Claimant had reported long-standing and persistent complaints made in relation to his knees, elbows, hips, legs and feet prior to the accident as well as inflammation of joint disease, rheumatoid arthritis and osteoporosis.
• The Panel accepted the pre-accident material demonstrated the Claimant had a long-standing history of psychological symptoms and distress. It was also noted by the Panel that the Claimant was exposed to traumatic war experiences in his childhood and he had consulted a psychologist following a marital separation.
• At the re-examination, the Claimant was questioned multiple times about whether he had any psychological injury or symptoms arising from either of the motor vehicle accidents and the Claimant only responded on multiple times advising of ongoing lumbar spine pain.
• There is no psychiatric disorder caused by either of the motor vehicle accidents because the Claimant denied any ongoing psychological injury from either accident.

The Review Panel determined the two motor vehicle accidents did not cause, contribute or exacerbate any psychological injury or impairment afflicting the Claimant. No assessment of whole person impairment was required because there was no psychiatric disorder.

The Review Panel revoked the original Medical Assessor’s Certificate.

Key Learnings

This decision demonstrates if there is evidence of pre-existing complaints, a delayed onset of reporting of symptoms and/or a clear denial of any ongoing injury or symptoms by an injured person then the motor vehicle accident did not cause or contribute or exacerbate any injury or impairment to the injured person. If a determination is made to the contrary then review rights should be exercised.

Whilst the dispute arose out of MACA, the same principles apply to claims made under the Motor Accident Injuries Act 2017.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.