Allianz Australia Insurance Ltd v Akopyan [2019] NSWSC 1487

Supreme Court New South Wales

Medium Neutral Citation: Allianz Australia Insurance Ltd v Akopyan [2019] NSWSC 1487 Hearing dates: 2 May 2019 Date of orders: 30 October 2019 Decision date: 30 October 2019 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The summons is dismissed.

(2) The plaintiff is to pay the first defendant's costs. Catchwords: ADMINISTRATIVE LAW – claim under Motor Accidents Compensation Act 1999 (NSW) following motor accident – assessment by medical review panel of degree of permanent impairment – application for judicial review – whether error of law on the face of the record due to "no evidence" – whether jurisdictional error – no error of law on the face of the record or jurisdictional error made out – summons dismissed Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 44, 57, 58, 59, 60, 63, 131, 132, 133 Supreme Court Act 1970 (NSW), s 69 Cases Cited: AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 D'Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994, American Psychiatric Association) Category: Principal judgment Parties: Allianz Australia Insurance Ltd (Plaintiff) Hamlet Akopyan (Defendant) Representation: Counsel: K P Rewell SC (Plaintiff) P Khandhar SC (Defendant)

Solicitors: Hall & Wilcox Lawyers (Plaintiff) Brydens Lawyers Pty Limited (Defendant) File Number(s): 2018/390125 Publication restriction: Nil

Judgment

Nature of the proceedings 1. These judicial review proceedings arise from a motor accident on 2 August 2015, involving Mr Hamlet Akopyan, the first defendant. Mr Akopyan made a claim for compensation against the plaintiff, Allianz Australia Insurance Ltd, for injuries he says he sustained in the accident 2. The second defendant, the State Insurance Regulatory Authority ("SIRA") and the third defendant, the Medical Review Panel ("the Panel") appointed by SIRA, have filed submitting appearances. 3. By amended summons filed 7 February 2019 the plaintiff seeks the following: 1. A declaration that the Certificate (and reasons) of the Panel dated 4 October 2018 is affected by error of law on the face of the record and/or jurisdictional error. 2. An order in the nature of certiorari setting aside the said Certificate. 3. An order that the matter be remitted to the Second Defendant to be re-determined by a differently constituted Review Panel according to law. 4. An order that the First Defendant pay the Plaintiff's costs of these proceedings.

Background 1. It is not disputed that the vehicle insured by the plaintiff was the vehicle at fault in the accident with Mr Akopyan at Greystanes on 2 August 2015. Mr Akopyan was taken to Westmead Hospital after the accident but was released a few hours later. 2. Mr Akopyan alleges that he suffered physical and psychiatric injuries as a result of the motor accident. Specifically, Mr Akopyan alleges that he has developed a psychotic illness which was caused by the motor accident. 3. Pursuant to s 131 of the Motor Accidents Compensation Act 1999 (NSW) ("MAC Act"), for Mr Akopyan to be awarded any damages his degree of permanent impairment must be greater than 10%. 4. The plaintiff disputed that Mr Akopyan's injuries give rise to greater than 10% permanent impairment and pursuant to Part 3.4 of the MAC Act, that dispute was referred to SIRA's Medical Assessment Service ("MAS").

The statutory framework 1. The MAC Act provides for a scheme of awarding damages for non-economic loss for injuries caused to persons in motor accidents. When a dispute arises over the level of permanent impairment, an assessment through the MAS is required before damages may be awarded (s 132). 2. Part 3.4 of the MAC Act applies to disputes between claimants and insurers about the degree of permanent impairment (ss 57 and 58). Pursuant to s 60, SIRA is to arrange for the dispute to be referred for medical assessment to a medical assessor who has been appointed by SIRA under s 59(1). Under s 61, the medical assessor is required to issue a certificate in respect of the assessment. 3. Parties to a dispute are entitled to apply to the proper officer of SIRA for a referral of the medical assessment to a panel of assessors for review (s 63(1)). The proper officer of SIRA is to arrange for the matter to be referred to a panel, only if they are satisfied there is reasonable cause to suspect that the initial medical assessment is incorrect in a material respect (s 63(3)). 4. If the proper officer is so satisfied, and refers the dispute for review, the panel may either confirm the initial certificate or revoke the initial certificate and issue its own (s 63(4)). The panel's assessment is "to be by way of a new assessment of all the matters with which the medical assessment is concerned" (s 63(3A)). 5. Section 133 of the MAC Act outlines that the degree of permanent impairment is to be assessed by MAS assessors in accordance with prescribed guidelines and s 44(1)(c) provides for the issuing of such guidelines. 6. Guidelines under s 44(1)(c) have been issued – the Motor Accident Permanent Impairment Guidelines – and these apply to assessments of permanent impairment resulting from motor accidents occurring between 5 October 1999 and 30 November 2017. 7. Relevantly, clause 1.35 of the Permanent Impairment Guidelines provides: "Psychiatric impairment Psychiatric impairment is assessed in accordance with 'Mental and behavioural disorders' within these Guidelines." 1. Under the section "Assessment of mental and behavioural disorders" clause 1.213 of the Permanent Impairment Guidelines provides: "Assessment of mental and behavioural disorders The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM) or the current edition of the International Statistical Classification of Diseases & Related Health Problems (ICD). The impairment evaluation report must specify the diagnostic criteria on which the diagnosis is based." 1. In its written submissions, the plaintiff stated: "[19] Medical assessors and Review Panels are required to diagnose any psychiatric condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders [DSM-4]." However the current edition of the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders ("DSM") was DSM-V, published in May 2013. Nothing turns on this in respect of the part of DSM-IV relied upon by the parties relevant to the diagnosis reached by the Panel. The issue, identified in the defendant's written submissions, is that the whole of the extract from DSM-IV needs to be read and understood as contrary to what was submitted by the plaintiff, it demonstrates that the Panel went about its task as required. I will return to this issue.

Assessment of Mr Akopyan under the MAC Act

Assessment by Dr Synnott 1. Mr Akopyan's psychiatric injuries were assessed by Dr Synnott, psychiatrist, on 18 September 2017. Dr Synnott issued a Certificate dated 22 September 2017 assessing Mr Byrne as having greater than 10% permanent impairment because of psychiatric injuries caused by the motor accident. Specifically, Dr Synnott made a diagnosis of "Psychotic Disorder Not Otherwise Specified". 2. Dr Synnott had conducted an interview with Mr Akopyan (assisted by an accredited interpreter) and also undertook a clinical examination. 3. Before recounting the history given by Mr Akopyan, Dr Synnott stated: [1] "*At times, Mr Akopyan was vague about dates and details – a poor historian; one could not be confident in the accuracy and the veracity of his history.*" Dr Synnott repeated the same observation under the heading "Diagnosis and Causation", towards the end of his Certificate. [2] 1. Dr Synnott recounted Mr Akopyan's pre-accident medical history, noting that according to Mr Akopyan, prior to the motor vehicle accident "he was basically a fit and healthy man". Dr Synnott also recounted details of Mr Akopyan's psychosocial history and pre-accident functioning. 2. Dr Synnott took a history of symptoms and treatment following the motor accident noting: [3] "When asked about his psychological symptoms from the time of the MVA and over the first few weeks, he said, "I don't remember" and "I don't know what to say". It is now 25 months since the MVA, and he has symptoms related to the subject MVA: he said he has bad dreams and wakes up feeling he is being strangled; also, he thinks "someone is pinching me all over my body"; "There's an unpleasant smell - like something burning"; "I hear a noise -someone's speaking in my ear, constantly"; "I see a ghost/a person often and it's the same one who's trying to strangle me"; he said the voice "tells me to kill myself and my wife"; he describes "times of five or ten minutes when I don't know where I am"; "I think sometimes people are following me and they want to kill me"; "birds fly but of the mirror"; "I see the ground shake and flowers grow out of it". On specific enquiry, he described experiencing the following symptoms to a significant degree at times in the 25 months since the MVA: depression; thoughts of suicide and acted on these (has tried to gas himself); poor sleep (pain, and thinking and worrying) and nightmares; anxiety and nervousness and so distressed he shakes; impaired concentration and memory; loss of motivation and interest; social withdrawal; irritability; increased appetite and weight gain (which he attributes to the medication); upset by reminders/cues (TV programs about MVAs, driving past an MVA); flashbacks (distressing memories of the MVA); apprehensive in cars and worried about having an accident; psychotic symptoms – (auditory, olfactory, visual) hallucinations and (paranoid) delusions; he denied the following – symptoms of mania/mood elevation, alcohol/drug abuse. He cannot remember when he first discussed his psychological symptoms with a medical practitioner; he currently consults a psychologist and two psychiatrists (one at Liverpool Hospital and a private psychiatrist, Dr E Shcherbak); he takes psychotropic medication - clozapine 275 mg a day and a mood stabiliser (possibly valproate). He was unable to estimate how many times he had been admitted to hospital in the 25 months since the MVA; his wife said at least ten (for a total of six or seven months); the last time was February 2017." 1. Dr Synnott noted that he had reviewed the following salient opinions in the documents provided to him: "Report of psychiatrist, Dr P Klug (9 December 2016); he assigns a diagnosis of bipolar affective disorder type I - both psychotic mania and psychotic depressive episodes were described; he determines the WPI to be 24%. Report of psychiatrist, Dr Levan, Department of Psychiatry Liverpool Hospital; he assigns a diagnosis of bipolar disorder type I - there has been mania with psychotic features and depressive episodes with psychotic features. Report of psychologist, "Clinical Needs Assessment - Summary Report" (10 May 2016); diagnosis bipolar affective disorder type I, single manic episode. Report of psychiatrist, Dr A Vergona [sic] (19 July 2016); he states, "His psychosis dominates the clinical picture"; he assigns diagnoses of chronic adjustment disorder with mixed anxiety and depressed mood and schizoaffective disorder. Discharge Summary from Liverpool Health Services (11 November 2016); diagnosis bipolar disorder and major depressive disorder with psychosis in the context of a motor vehicle accident." 1. Dr Synnott concluded: "In my opinion, In relation to the MVA, he describes experiencing sufficient psychological symptoms to meet the diagnostic criteria of a non-specific psychotic disorder; I note other diagnoses have been entertained and this includes- (1) bipolar affective disorder type I and (2) schizoaffective disorder. Please note: psychotic disorder NOS [not otherwise specified] is a broad diagnostic category and covers a wide range of presentations and there are no automatic implications simply on the basis of this diagnosis. One should not necessarily assume there is any significant psychiatric impairment or incapacity for employment, and the diagnosis is not an automatic contraindication to participating in employment and other life roles - and it does not explain the totality of the situation. In my opinion, the. current degree of psychiatric impairment will not improve by more than 3% in the next 12 months - with or without medical treatment; he has reached maximum medical improvement; it is appropriate to determine the WPI." 1. Dr Synnott found that Mr Akopyan's "Psychotic disorder NOS" was caused by the motor accident, and determined Mr Akopyan's permanent impairment as 26%.

Assessment by the Panel 1. The plaintiff applied for a review of Dr Synnott's assessment under s 63(1) of the MAC Act. A Proper Officer of the MAS examined the application, and was satisfied that there was reasonable cause to suspect Dr Synnott's assessment was incorrect in a material respect. There is no challenge to that decision. The matter was referred to a review panel. 2. Three psychiatrists, Dr Samson Roberts, Dr Wayne Mason and Dr Thomas Newlyn were convened as the Panel. The Panel held a teleconference on 26 April 2018, and examined Mr Akopyan and further discussed the matter on 22 August 2018. It issued its Certificate on 4 October 2018. The Panel diagnosed Mr Akopyan with "Psychotic Disorder due to another General Medical Condition" and determined that this was caused by the motor accident. The Panel determined Mr Akopyan's whole person impairment at 41%.

Review Panel Certificate 1. The structure of the Panel's Certificate included the fact that the conference was held, specification of the documentation and other material reviewed, the assessment under review, and the dispute identified by the parties as "Diagnosis/Causation (non-reliance on evidence)". The Panel, under item 3 listed matters considered and decided by it. The Panel noted that it "considered afresh all aspects of the assessment under review" as is, of course, required by the legislation. 2. There was careful tracking through the documentary evidence considered by the Panel. The Panel noted Dr Synnott's analysis and the history obtained by him from Mr Akopyan. This is followed by reference to the insurer's submissions on the application for review, drawing attention to an admission to Liverpool Hospital in August 2015 noting a significant alcohol/drug abuse history and previous incidents of violence and a note of 21 August 2015 referring to bipolar affective disorder, current episode manic and psychotic symptoms and substance abuse affecting behaviour. There is also reference to a record of five car accidents and an entry on 14 September 2015 is noted as having referred to a quote from Mr Akopyan's wife stating "he's back to how he used to be like five years ago". [4] 3. The Panel analysed Dr Klug's report, including his conclusion that there was an absence of head injury in the motor accident, although Dr Klug said that there may have been a brief amnesic gap. There were three admissions to hospital under the Mental Health Act 2007 (NSW) noted by Dr Klug in August 2015, April 2016, and August 2016. Dr Klug diagnosed a "psychotic disorder due to another medical condition", considering that it may be that Mr Akopyan has a bipolar-related disorder due to another medical condition. The whole person impairment assessment by Dr Klug of 24% is noted. [5] 4. Reference is made to a report of Dr Andronikashvili of June 2016 and the diagnosis made by him when Mr Akopyan presented for scheduling under the Mental Health Act on 15 August 2015. [6] 5. There is reference to a discharge/transfer summary referring to an admission/attendance in 2017 at Waratah House at Campbelltown with a diagnosis of schizophrenia and mood disorder and prescription of Clozapine. [7] 6. The Panel referred to a mental health discharge/transfer summary from Liverpool Hospital to Campbelltown Mental Health Unit in January 2017, noting the previous diagnosis of Schizoaffective Disorder in the context of a motor vehicle accident of 2015, resulting in unemployment and chronic pain with multiple suicide attempts. [8] 7. The Panel referred to other records in the nature of discharge/transfer summary documents. [9] 8. The emergency department clinical records pertaining to the presentation on 2 August 2015 directly after the motor accident are referred to by the Panel. The circumstances of the accident are noted and that the emergency department clinical records record that Mr Akopyan "self-extricated but was unsteady on his feet and amnesic to events". [10] 9. Interestingly the observation is made by the Panel that the ambulance electronic medical record demonstrates that Mr Akopyan initially declined assessment by the ambulance officers and that the account was provided to the ambulance officers by a bystander. [11] 10. The Panel then notes clinical entries in the GP records as well as a mental health progress note by Dr A Virk from October 2016. Reference is made to a cerebral perfusion study performed on 21 October 2016 and reference is made to clinical notes referring to Mr Akopyan complaining of smelling smoke or seeing "the smoke man" who commands him to do things such as "kill yourself". [12] 11. The Panel referred to a consultant psychologist's report dated 10 May 2016 of Ms Flores-Kater and the results of her assessment and her findings. [13] 12. Documentation from Liverpool Health Service pertaining to the admission on 21 August 2015 to 14 September 2015 is referred to by the Panel which includes a note that Mr Akopyan's wife suspected that he was using substances. The Mental Health Discharge Summary pertaining to the admission on 6 October 2016 to 11 November 2016 noted an account from Mrs Akopyan of an extreme personality change almost immediately after his accident. The summary records that during the admission Mr Akopyan reported persisting auditory and olfactory hallucinations. A diagnosis of Schizophrenia/Schizoaffective Disorder was made, and although extreme Post Traumatic Stress Disorder was considered the basis for the irritability and aggression, no symptoms of that condition are described. It was noted that there was present constant psychotic phenomena, including olfactory, auditory and visual hallucinations. [14] 13. The Panel noted Dr Virgona's report and that Dr Virgona's view was that the account of the motor accident "made no sense" and that in his view, Mr Akopyan developed psychotic symptoms in the period after the motor accident in the context of alcohol and analgesic use. Dr Virgona diagnosed obsessive compulsive personality features, chronic adjustment disorder and mixed anxiety and depressed mood noting that "[Mr Akopyan's] psychosis dominates the clinical picture and requires further treatment to reveal the real extent of any accident-related symptoms". [15] 14. There is reference by the Panel to the emergency department case history in January 2017 where Mr Akopyan had consumed a bottle of brandy and was engaging in bizarre behaviour, inappropriate laughing, inappropriate talking, and had a red face and red eyes and was complaining of auditory hallucinations. [16] 15. The Panel notes its conclusion that a re-examination of Mr Akopyan by the Panel was necessary. Additional evidence is then referred to by the Panel as documents provided by the parties, including a report of Dr Sekel, who thought there was "a history of psychiatric disorders for many years based on the extensive records" and a report of Dr Klug dated July 2018 which documents Dr Klug's opinion that "it cannot be fully excluded that Mr Akopyan suffered from a traumatic brain injury as a consequence of the motor accident" and diagnosed Schizoaffective Disorder. [17] 16. The Panel refers to the report of Dr Roldan, psychologist, from April 2018 and the findings and assessments made by Dr Roldan. The Panel records Dr Roldan's view that the testing indicated deliberate underperformance, even for a person with psychotic illness, and Dr Roldan's conclusion that "I have significant difficulty in arriving at a concluded opinion with regards to aetiology and I must express some reservations about symptom/presentation validity." [18] 17. The Panel then goes on to set out the information obtained at interview with Mr Akopyan. [19] The Panel took a pre-accident medical history, noted relevant personal details and psychosocial history, and took a history of the motor accident. This is followed by a history of symptoms and treatment following the motor accident which includes Mr Akopyan saying he lost consciousness in the accident, regaining awareness as he was being injected with a drug. The Panel notes: [20] "He recalled that he felt light and that everything was moving so smoothly. He asked what they gave him and he recalls that he was told that he had been given morphine." 1. There is an account of bizarre behavior by Mr Akopyan in the days following the accident it seems given by Mr Akopyan's wife. Police were called and the history obtained indicates that Mr Akopyan was admitted to hospital. The Panel notes a history from Mr Akopyan's wife that due to other bizarre behavior she called an ambulance and Mr Akopyan spent six weeks in hospital during which time he was aggressive and would throw food in her face. There were other incidents and admissions to hospital described by Mr Akopyan and Mrs Akopyan. [21] 2. A history was taken of pre-accident functioning and current symptoms, followed by current and proposed treatment. The current treatment is noted to be Clozapine, 300mg at night for the past year and a half, an anti-depressant, 50mg at night and valium, 5-10mg per week when feeling restless. [22] 3. A mental state examination is recorded although it was conducted through an interpreter. The Panel noted: [23] "His account included a description of paranoia relating to his personal safety, monitoring and, in the past, matters of a grandiose nature. He gave a description of auditory hallucinations at least at times commanding in nature and he gave a description indicating that at times he feels under the control of the voices and has encountered difficulty resisting their commands." 1. The Panel then outlined current functioning, noting that he interacts with nobody other than his wife and her son and has no family in Australia other than them. [24] 2. Under the heading "Panel Deliberations" the Panel records: [25] "The Panel considered all of the available information noting particularly Mr Akopyan's presentation at interview, the history presented by him and the information provided by his wife. It was apparent to the Panel that Mr Akopyan has suffered symptoms of a psychotic nature since the motor accident and there was insufficient available information to suggest that he had experienced any prior symptoms of a psychiatric nature. The Panel noted the description of overtly bizarre behaviour in the period immediately following the motor accident and conduct that was totally inexplicable and of which Mr Akopyan appeared to have little if any recollection. The Panel noted the presence of delusional beliefs, auditory hallucinations and in particular olfactory hallucinations described as the smell of burning rubber, a symptom which typically arises in the context of an organic psychotic condition which is not characteristic of Schizophrenia. The Panel concluded that Mr Akopyan had developed a Psychotic Disorder due to a General Medical Condition, namely as a result of the head injury sustained in the motor accident. The Panel could not identify any other potential causative factor in the development of his psychotic symptomatology and the nature of the symptoms described was consistent with the diagnosis made. The differential diagnosis of Schizophrenia was considered, however, whilst some of the symptoms could be explained by the diagnosis of Schizophrenia, others would not readily be explained nor is it typical of the natural history of Schizophrenia that it should develop abruptly and at the age of 41 years." 1. The Panel then went on to assess Mr Akopyan's level of impairment which it concluded was a 41% permanent impairment.

Principles relevant to this appeal 1. These proceedings were brought pursuant to s 69 of the Supreme Court Act 1970 (NSW). Relief under s 69 is available only for jurisdictional error or error of law on the face of the record: 69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. … (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings: (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision. 1. The grounds of review relied upon by the plaintiff are: 1. There was no evidence of head injury 2. There was failure by the Panel to identify a physiological mechanism 3. There was failure by the Panel to give adequate reasons for its decision 1. As explained in AAI Ltd trading as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229 at [45]: "The grounds for judicial review are jurisdictional error and error of law on the face of the record. As has been repeatedly emphasised, the distinction is important, as a claim for relief based on jurisdictional error may be established by any admissible evidence relevant for that purpose while a claim for relief based upon an error of law within jurisdiction must identify the error "on the face of the record"." 1. Substantial guidance as to how the Panel should approach its task is provided by the judgment of the Court in McGiffen: "[52] In the present case, to use language borrowed from Gaudron J in Miah, jurisdictional error would be established if the review panel misunderstood the statutory requirement governing the exercise of the assessment it was required to conduct so as to constitute a constructive failure to exercise jurisdiction. That draws attention to the statutory requirements governing the assessment. In addition, a statutory obligation to address the substance of an applicant's case when conducting such an assessment will be readily implied and a failure to satisfy that obligation may constitute a constructive failure to exercise jurisdiction: Ali v AAI Ltd [2016] NSWCA 110 at [66] per Basten JA, Leeming and Simpson JJA agreeing. Thus a failure to respond to a substantial argument may amount to a failure to accord procedural fairness, a constructive failure to exercise jurisdiction, or both. [53] Following the referral of the medical assessment to the review panel under s 63(1), the panel was required to conduct a new assessment. As we have already pointed out in [6] above, s 63(3A) expressly requires the review panel to undertake a new assessment of all the matters with which the medical assessment is concerned. [54] In conducting its new assessment, the review panel was required to address the matters in s 58. Section 58(1)(d) provides that the review panel must assess "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%" (italics added). This obligation necessarily directs attention to whether the motor accident was a contributing cause of the injury. [55] It is well established that a determination of the degree of permanent impairment as a result of the injury caused by a motor accident, includes the element of causation: Rodger v De Gelder [2015] at [17] per Gleeson JA; Spratt v Perilya Broken Hill Ltd; Spratt v Rowe [2016] NSWCA 192 at [41] per Leeming JA. [56] The statutory context also includes that the medical assessment conducted under Part 3.4 of the MAC Act is a critical component of proceedings for the compensation of persons injured in motor vehicle accidents. A medical assessment certificate is conclusive evidence of the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim: s 61(2) of the MAC Act. That is, the certificate is conclusive evidence in compensation proceedings in a court of the degree of permanent impairment of a person as a result of the injury caused by the motor accident. [57] The requirement upon the review panel to address causation in the way we have described is underlined by clauses 1.7-1.9 of the Motor Accidents Medical Guidelines, dealing with permanent impairment ("the Permanent Impairment Guidelines"): ss 44(1)(c); 65 and 133(2)(a) of the MAC Act. In referring to these Guidelines in this context we do not intend to elevate their correct status in a judicial review context. That is a question for another day as explained by Leeming JA in Ali v AAI Ltd at [75]-[99]. On this subject the Guidelines are consistent with the conclusion we have reached as to the statutory requirement that the medical assessment correctly address issues of causation. These Guidelines provide, relevantly: "Causation of injury 1.7 An assessment of permanent impairment is as prescribed under section 58 (1)(d) of the Motor Accidents Compensation Act 1999. The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues. 1.8 Causation is defined in the Glossary at page 316 of the AMA 4 Guides as follows: 'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following. (a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination. (b) The alleged factor did cause or contribute to worsening of the impairment, which is a nonmedical determination'. This therefore involves a medical decision and a non-medical informed judgement. 1.9 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes." (italics in original) [58] The primary judge found that the review panel failed to address Mr McGiffen's case that his back injury arose as a consequence of the effects of his leg injuries. In doing so he held that it did not address his case that an aspect of his permanent impairment was caused by the motor accident, albeit indirectly." 1. It is also clearly settled law that medical assessors are to form their own opinion on the medical question referred to it by applying their own medical experience and their own medical expertise: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] per French CJ, Crennan, Bell, Gageler and Keane JJ ("Wingfoot"). The reasons must explain the path of reasoning by which the conclusion was reached: Wingfoot at [55]. 2. In D'Ament v Allianz Australia Insurance Ltd [2019] NSWCA 201, it was held that a finding of fact for which there is no evidence does not necessarily constitute an error of law on the face of the record (per Simpson AJA with whom Macfarlan and Leeming JJA agreed): "[74] It may be accepted that a finding of fact for which there is no evidence constitutes an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [90]. That is not the same as saying that such a finding constitutes an error of law on the face of the record. The parameters of "error of law on the face of the record" have not been authoritatively defined. There is no clear line that marks out an error of law as one that is "on the face of the record". … [77] The appellant's submissions trawled through the medical and physiotherapy evidence in order to establish the proposition that there had been complaints by the appellant of pain in the left shoulder prior to March 2011. The argument also required interpretation of that evidence – for example, the physiotherapy note of "left shoulder pain again" and of the pictogram in the notes. That exercise is beyond the scope of a determination of whether there has been "error of law on the face of the record". I am satisfied, however, that the error of law for which the appellant contends (even if it is error of law) falls on the wrong side of the divide referred to in [74] above. No error of law on the face of the record has been established."

Ground 1, No evidence of head injury

Plaintiff's submissions 1. I observe at the outset that the plaintiff's written submissions ("PWS") are replete with value judgements by the author as to the importance, weight and cogency of material made available to the Panel for its evaluation. Examples of this occur repeatedly throughout the PWS and betray an attitude of merits review. 2. In PWS [11], a reference to Dr Synnott regarding Mr Akopyan as "an unreliable historian" is followed by the comment "which appears undeniable". In PWS [13] there is gratuitous commentary upon Dr Synnott's diagnosis, describing it as one that "could scarcely have been more non-specific", despite it corresponding to a DSM-IV identifiable psychiatric condition. In PWS [17], an opinion is volunteered that "the first defendant provided little reliable information when interviewed by the Review Panel" but again this is a value judgement by the author of the PWS, rather than a reference to any conclusion reached or observation made by the Panel. 3. In PWS [19] there is a partial quote from DSM-IV which leaves out a critical part of the relevant passage where it specifically addresses matters that need to be taken into account when identifying the diagnostic features of Psychotic Disorder due to a General Medical Condition. The incomplete quote leaves a potentially misleading impression of what is in DSM-IV as to what a diagnosing psychiatrist or here, the Panel, should take into account in considering that particular diagnosis. 4. The complete paragraph from DSM-IV under the heading "Diagnostic Features" of "Psychotic Disorder Due to a General Medical Condition" reads: [26] "In determining whether the psychotic disturbance is due to a general medical condition, the clinician must first establish the presence of a general medical condition. Further, the clinician must establish that the psychotic disturbance is etiologically related to the general medical condition through a physiological mechanism. A careful and comprehensive assessment of multiple factors is necessary to make this judgment. Although there are no infallible guidelines for determining whether the relationship between the psychotic disturbance and the general medical condition is etiological, several considerations provide some guidance in this area. One consideration is the presence of a temporal association between the onset, exacerbation, or remission of the general medical condition and that of the psychotic disturbance. A second consideration is the presence of features that are atypical for a primary Psychotic Disorder (e.g., atypical age at onset or presence of visual or olfactory hallucinations). Evidence from the literature that suggests that there can be a direct association between the general medical condition in question and the development of psychotic symptoms can provide a useful context in the assessment of a particular situation. In addition, the clinician must also judge that the disturbance is not better accounted for by a primary Psychotic Disorder, a Substance-Induced Psychotic Disorder, or another primary mental disorder (e.g., Adjustment Disorder). This determination is explained in greater detail in the "Mental Disorders Due to a General Medical Condition" section (p. 165)." 1. The parts omitted from the PWS are underlined. 2. The defendant fortunately tendered the complete extract from DSM-IV otherwise this Court may well have been misled by the incompletely extracted material. 3. In respect of ground 1, apart from constantly emphasising that there is no evidence of a head injury, (an observation with which I do not agree), evaluative commentary is made throughout the PWS dealing with that ground, indicating the opinion of the author of the PWS as to the kind of things that, in his view, ought to have been noted in contemporaneous reports but were not, but at the same time minimising or disregarding matters that were recorded that can indicate a head injury. For example, at PWS [34] commentary is made that: "a CT scan of the brain was arranged at Westmead Hospital, but only because the First Defendant professed to be amnesic of the event". There is no evidence cited for the drawing of that conclusion. This is followed by the somewhat withering comment, again betraying a merits review type of approach: "The result of the CT scan was, predictably, normal" (emphasis added). 4. The PWS then go on to emphasise evidence that another specialist, a neuropsychologist, took the view that the temporal relationship between the accident and the onset of psychotic symptoms is "insufficient" to establish causation, but makes no reference to other experts whose reports were also before the Panel who took a different view, let alone any reference to the DSM-IV which specifically states temporal relationship is a matter that ought to be considered. 5. In any event, as correctly observed in the written submissions for Mr Akopyan ("DWS") it is obviously up to the Panel to reach its own view. A new assessment is required by s 63(3A) of the MAC Act.

Mr Akopyan's submissions 1. In the DWS, Mr Sheldon SC submitted that the approach taken in the PWS was incorrect. It is wrong for the plaintiff to proceed on the basis that a self-report of symptoms cannot establish evidence of head injury. This means that even the possibility of an error of law is not raised. The only submission properly open to the plaintiff in these circumstances relates to the weight to be attached to such evidence which is, of course, entirely a matter for the Panel relying on its own professional skill and judgement to determine, based on its clinical experience. To submit otherwise is to "dress up a merits review as a complaint of reviewable error." [27] 2. Mr Sheldon SC pointed out the incomplete DSM-IV quote thus providing the highly relevant parts of that extract and what was required by DSM-IV to be considered about the aetiology of the condition as well as the alternative analyses that can provide the necessary connection between the general medical condition and the psychosis. 3. In oral submissions, Mr Khandhar SC (appearing for Mr Akopyan in substitution for Mr Sheldon SC) referred to a number of sources of evidence of head injury within the material available to the Panel: 1. The ambulance electronic note of dizziness; 2. The Emergency Department triage note at 9:06am under the heading "Presenting Information" – "Self-extricated but unsteady on feet, amnesic to events"; 3. The Emergency Department trauma admission note – "Cervical spine pain lateral neck pain", "head pain" and "amnesic for events" at 9:40am; 4. The nursing note at 10:55am - "Patient arrived to department with nurse escort. Patient is alert and states name and date of birth. States has no recollection of events…"; 5. The Emergency Department Trauma Admission Form where under the heading "Trauma Series X-rays" is included a hand-written note: "CT brain – amnesia on scene". 1. All those points demonstrate clinical references to a general medical condition, namely head injury, involving dizziness, unsteadiness, amnesia and head pain in the hours immediately after the accident. 2. Mr Khandhar SC submitted that the analysis by the Panel was done consistently with the requirements of the application of the DSM-IV diagnostic approach, including, as required by the relevant part of DSM-IV, the need for the clinician(s) to "also judge that the disturbance is not better accounted for by a primary Psychotic Disorder, a Substance-Induced Psychotic Disorder, or another primary mental disorder (e.g., Adjustment Disorder)." [28] 3. Mr Khandhar SC submitted that if there is some evidence of head injury, even one piece, then the "no evidence" ground fails. That ground should truly be seen as a complaint about the weight the Panel gave to evidence that was before it, which is not a matter for this Court, and is entirely a matter for the expertise of the Panel.

Consideration 1. I accept the submissions made in both the written and oral submissions by senior counsel for Mr Akopyan. I reject the submissions made by the plaintiff. It seems to me the ground fails at the first hurdle given that there was contemporaneous evidence of head injury available for the Panel to consider. I also accept that the Panel, which comprised expert specialist psychiatrists, were required to, and did in fact, analyse the background and clinical history, directly assessed Mr Akopyan and applied their professional skill and judgment to the task at hand. There is no error of law and certainly no error of law on the face of the record in how it completed that task.

Grounds 2 and 3 1. These grounds can be dealt with together. In my view these grounds amount to little more than an amplification and/or repetition of the first ground.

Submissions 1. In relation to the second ground, the PWS commenced from the position that because there was no basis for the Panel's diagnosis that there had been a head injury, there is a failure to identify a physiological mechanism for the psychotic disorder found. This submission is developed to engage in criticism of the purported absence of an "aetiological connection" or "physiological mechanism" thus submitting that the diagnosis reached is not "legitimate". It was argued that this failure amounts to jurisdictional error. 2. The third ground, an assertion of failure to give adequate reasons for its decision, also has its origin in the insistence by the author of the PWS that there was no evidence of head injury. The PWS argued that if the only evidence of head injury is Mr Akopyan's "own assertion that he was "amnesic to events"" [29] , the Panel was required to explain how this "evidence" bases the conclusion reached (again an evaluative side-comment by putting inverted commas around the word "evidence" in the PWS). This submission is developed along similar lines to the submission in respect of ground 2 that there was a requirement for an explanation of the physiological process identifying the connection between the general medical condition and the psychosis. 3. In paragraph [53] of the PWS the following is stated: "[53] The criteria in DSM-4 for the diagnosis made by the Review Panel, set out above, precluded the Panel from relying on nothing more than the alleged temporal relationship between the motor accident and the onset of psychotic symptoms." The "criteria" for diagnosis was not set out properly; critical parts were left out. 1. This submission is not available. When the full relevant extract from DSM-IV is read in context it is evident that temporal association is indeed a factor that should be considered; there was no "preclusion" of the kind stated in the PWS, or at all.

Decision 1. I reject the submissions made by the plaintiff in respect of both grounds 2 and 3 and those grounds fail. 2. In respect of the asserted jurisdictional error and asserted error of law on the face of the record, I accept as a correct reflection of the law the position succinctly stated in DWS [42]-[44]: "[42] In Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302 Basten JA commented that precision was needed in identifying those errors which are said to lie in each category in order to understand what material is relevant to each. [43] Only the Certificate and Reasons are relevant to error of law on the face of the record. These betray no error of law. [44] The sufficiency of evidence cannot found jurisdictional error in the subject regime: the existence and quality of evidence of head injury does not go to the jurisdiction of the Panel. It is not necessary in order for the Panel to have jurisdiction that it be satisfied of certain facts or that it be satisfied in a particular way or by particular evidence." 1. The appeal fails.

Orders 1. The summons is dismissed. 2. The plaintiff is to pay the first defendant's costs.

**********

Endnotes 1. Certificate of Dr Synnott, 22 September 2017, page 2. 2. Certificate of Dr Synnott, 22 September 2017, page 8. 3. Certificate of Dr Synnott, 22 September 2017, pages 3-4. 4. Review Panel Certificate, 4 October 2018, p 3. 5. Review Panel Certificate, 4 October 2018, pp 3-4. 6. Review Panel Certificate, 4 October 2018, p 4. 7. Review Panel Certificate, 4 October 2018, p 4. 8. Review Panel Certificate, 4 October 2018, p 4. 9. Review Panel Certificate, 4 October 2018, p 4. 10. Review Panel Certificate, 4 October 2018, p 4. 11. Review Panel Certificate, 4 October 2018, p 4. 12. Review Panel Certificate, 4 October 2018, p 5. 13. Review Panel Certificate, 4 October 2018, p 6. 14. Review Panel Certificate, 4 October 2018, p 6. 15. Review Panel Certificate, 4 October 2018, p 6. 16. Review Panel Certificate, 4 October 2018, p 6. 17. Review Panel Certificate, 4 October 2018, pp 6-7. 18. Review Panel Certificate, 4 October 2018, p 7. 19. Review Panel Certificate, 4 October 2018, pp 7-11. 20. Review Panel Certificate, 4 October 2018, p 8. 21. Review Panel Certificate, 4 October 2018, p 9. 22. Review Panel Certificate, 4 October 2018, p 10. 23. Review Panel Certificate, 4 October 2018, p 11. 24. Review Panel Certificate, 4 October 2018, p 11. 25. Review Panel Certificate, 4 October 2018, pp 11-12. 26. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994, American Psychiatric Association), page 307. 27. DWS at [3]. 28. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1994, American Psychiatric Association), page 307. 29. PWS at [51]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2019