AAI Limited t/as GIO v BSP

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v BSP [2024] NSWPICMP 344
CLAIMANT:	BSP
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Anthony Scarcella
MEDICAL ASSESSOR:	Thomas Newlyn
MEDICAL ASSESSOR:	Paul Friend
DATE OF DECISION:	28 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; medical assessment of whole person impairment (WPI) by Medical Assessor (MA) Robertson who determined that the claimant had a WPI of greater than 10%, that is, 15% WPI; review sought by insurer under section 7.26; claimant, a minor, suffered a psychological injury in a motor accident on 29 June 2019; consideration and application of Motor Accident Guidelines clauses 6.5 to 6.7 in respect of causation and clauses 6.201 to 6.228 in respect of mental and behavioural disorders; Held – the Panel revoked the certificate issued by MA Robertson dated 9 December 2022; the Panel certified that the claimant sustained a post-traumatic stress disorder caused by the motor accident on 24 June 2019 that gives rise to a WPI which is not greater than 10%, that is, 7%.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: 1. Revokes the certificate issued by Medical Assessor Michael Robertson dated 9 December 2022. 2. Certifies that the claimant sustained a post-traumatic stress disorder caused by the motor accident on 24 June 2019 that gives rise to a whole person impairment which is not greater than 10%, that is, 7%. A statement setting out the Review Panel’s reasons for the assessment is attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

The claimant, BSP, is an 11-year-old boy who was involved in a motor accident on 24 June 2019 whilst a passenger in a motor vehicle driven by his mother. The vehicle in which BSP was travelling collided with another motor vehicle, spun around and then struck another vehicle (the motor accident).
On 29 June 2019, CND, BSP’s mother, made an Application for Personal Injury Benefits on behalf of BSP. The relevant compulsory third party insurer is AAI Limited t/as GIO (the insurer).
BSP claims that he suffered physical and psychological injuries as a result of the motor accident.
BSP’s claim is governed by the provisions of the Motor Accident Injuries Act2017 (MAI Act). This legislation provides a scheme for the compulsory third party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
A medical dispute about the degree of BSP’s whole person impairment (WPI) has arisen in connection with his claim. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The medical dispute was referred to the Personal Injury Commission (Commission) and the Commission assigned it to Medical Assessor Michael Robertson for assessment.
On 9 December 2022, Medical Assessor Robertson determined that BSP suffered post-traumatic stress disorder caused by the motor accident and assessed him as having a WPI greater than 10%, that is, 15%.

REVIEW PROCEDURE

The insurer sought a review of the Medical Assessment in accordance with s 7.26 of the MAI Act (the Review).
On 17 February 2023, the President’s delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision-maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment, the subject of the review, was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission: s 7.26(5A) of the MAI Act. Accordingly, the President’s delegate has convened this Panel to conduct the review of the Medical Assessment.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor: s 41(2) of the PIC Act.
The Review of the Medical Assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect. The Review is by way of a new assessment of all matters with which the medical assessment is concerned: s 7.26(6) of the MAI Act. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the motor accident, without those matters having to be the subject of assessment.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application: Rule 128 of the PIC Rules.
On 18 September 2023, the Panel directed the parties to lodge with the Commission an indexed and paginated final bundle of documents on which they relied in the Review.
By way of written submissions dated 4 December 2023, BSP’s lawyers objected to Medical Assessor Thomas Newlyn being a part of the Panel and requested that the Panel be reconstituted.
On 12 December 2023, the Commission dismissed the request to reconstitute the Panel without Medical Assessor Thomas Newlyn.
On 12 December 2023, the Panel informed the parties that it considered a re-examination of BSP was required. Arrangements were made for BSP to be re-examined by Medical Assessor Thomas Newlyn and Medical Assessor Paul Friend by video link (MS Teams) on 24 January 2024.
By way of letter dated 18 January 2024, BSP’s lawyers requested the Commission to postpone BSP’s re-examination by the Panel until Medical Assessor Newlyn had provided his assessment in respect of BSP’s brother, who was also involved in the motor accident.
On 23 January 2024, the Commission refused the request to postpone the re-examination of BSP by the Panel.

LEGISLATIVE FRAMEWORK

General provisions

Section 1.4 of the MAI Act defines ‘injury’ to mean a personal or bodily injury and includes a pre-natal injury; a psychological or psychiatric injury; and damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.
Sections 5D (duty of care – general principles) and 5E (onus of proof) of the Civil Liability Act 2002 (the CLA) apply to the MAI Act: s 3B(2) of the CLA.
BSP’s claim and entitlements to compensation are governed by the provisions of the MAI Act. An injured person can make a claim for both economic losses and non-economic loss damages.
However, s 4.11 of the MAI Act provides that no damages for non-economic loss may be awarded in respect of injury unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

Permanent impairment assessment

Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be assessed in accordance with the Motor Accident Guidelines version 9.2 effective from 10 November 2023 (the Guidelines).
The Guidelines were issued pursuant to Division 10.2 of the MAI Act and adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment Fourth Edition (AMA 4 Guides). The Guidelines are definitive in respect of the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed: cl 6.2 of the Guidelines.
Permanent impairment is assessed in accordance with Chapter 6 of the Guidelines.
Causation of injury is addressed in cls 6.5, 6.6 and 6.7 of the Guidelines.
Clause 6.6 of the Guidelines notes:
“6.6 Causation is defined in the Glossary at page 316 of the AMA4 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:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.”

Clause 6.7 of the Guidelines states:
“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.”
The assessment of permanent impairment in respect of mental and behavioural disorders is addressed in cls 6.201 to 6.228 of the Guidelines.
Clause 6.203 of the Guidelines states:
“The assessment of mental and behavioural disorders must be undertaken in accordance with the psychiatric impairment rating scale (PIRS) as set out in these Guidelines. Chapter 14 of the AMA 4 Guides (pages 291-302) is to be used for background or reference only.”
Clause 6.213 of the Guidelines states:
“The impairment must be attributable to a psychiatric diagnosis recognised by the current edition of the Diagnostic & Statistical Manual of Mental Disorders (DSM-5-TR) 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.”
In respect of the psychiatric impairment rating scale (PIRS), cl 6.219 of the Guidelines states that the behavioural consequences of psychiatric disorders are assessed on the following six areas of function, each of which evaluates an area of functional impairment:
(a)    self-care and personal hygiene (Table 6.11 of the Guidelines);
(b)    social and recreational activities (Table 6.12 of the Guidelines);
(c)    travel (Table 6.13 of the Guidelines);
(d)    social functioning (relationships) (Table 6.14 of the Guidelines);
(e)    concentration, persistence and pace (Table 6.15 of the Guidelines), and
(f)    adaptation (Table 6.16 of the Guidelines).
Tables 6.11 to 6.16 of the Guidelines identify the five classes of assessment within each of the six areas of function.
Clauses 6.225 to 6.228 and Table 6.17 of the Guidelines address the three step procedure involved in calculating psychiatric impairment.
Clauses 6.222 to 6.224 of the Guidelines address the adjustment for the effects of prescribed treatment to the assessment of WPI.
Clause 6.218 of the Guidelines states:
“In order to measure impairment caused by a specific event, the medical assessor must, in the case of an injured person with a pre-existing psychiatric diagnosis or diagnosable condition, estimate the overall pre-existing impairment using precisely the method set out in this part of the Guidelines, and subtract this value from the current impairment rating.”
Pre-existing impairment is addressed in cls 6.31, 6.32 and 6.33 of the Guidelines.
The evaluation of the permanent impairment may be complicated by the presence of an impairment in the same region that existed before the relevant motor accident. If there is objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident, then its value must be calculated and subtracted from the current WPI value. If there is no objective evidence of the pre-existing symptomatic permanent impairment, then its possible presence should be ignored: cl 6.31 of the Guidelines.
Clause 6.32 of the Guidelines states:
“The capacity of a medical assessor to determine a change in physical impairment will depend upon the reliability of clinical information on the pre-existing condition. To quote the AMA 4 Guides (page 10): 'For example, in apportioning a spine impairment, first the current spine impairment would be estimated, and then impairment from any pre-existing spine problem would be estimated. The estimate for the pre-existing impairment would be subtracted from that for the present impairment to account for the effects of the former. Using this approach to apportionment would require accurate information and data on both impairments.' Refer to clause 6.218 for the approach to a pre-existing psychiatric impairment.”
Pre-existing impairments should not be assessed if they are unrelated or not relevant to the impairment arising from the motor accident: cl 6.33 of the Guidelines.
Subsequent injury is addressed in cl 6.34 of the Guidelines which states:

“The evaluation of permanent impairment may be complicated by the presence of an impairment in the same region that has occurred subsequent to the relevant motor accident. If there is objective evidence of a subsequent and unrelated injury or condition resulting in permanent impairment in the same region, its value should be calculated. The permanent impairment resulting from the relevant motor accident must be calculated. If there is no objective evidence of a subsequent impairment, its possible presence should be ignored.”

Clause 6.19 of the Guidelines states:

“Before an evaluation of permanent impairment is undertaken, it must be shown that the impairment has been present for a period of time, and is static, well stabilised and unlikely to change substantially regardless of treatment. The AMA 4 Guides (page 315) state that permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially (i.e. by more than 3% whole person impairment (WPI) in the next year with or without medical treatment. If an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to these Guidelines.”

The evaluation of permanent impairment should only consider the impairment as it is at the time of the assessment: cl 6.21 of the Guidelines.
The evaluation of permanent impairment must not include any allowance for a predicted deterioration. However, it may be appropriate to comment on this possibility in the impairment valuation report: cl 6.22 of the Guidelines.

EVIDENCE BEFORE THE PANEL

The evidence before the Panel consisted of the following:
(a) the insurer’s indexed and paginated bundle of documents lodged on the Commission’s portal on 13 November 2023 (insurer’s documents), and
(b) BSP’s indexed and paginated bundle of documents lodged on the Commission’s portal on 4 December 2023 (claimant’s documents).

ASSESSMENT UNDER REVIEW

Medical Assessor Robertson examined BSP on 28 November 2022 and issued a certificate under s 7.23(1) of the MAI Act on 9 December 2022.[1]
[1] Insurer’s documents at pages 14-23.
Medical Assessor Robertson was asked to assess the dispute between the parties about the degree of permanent impairment under Schedule 2, cl 2(a) of the MAI Act in respect of psychiatric conditions – post-traumatic stress disorder and other psychological injury.
Medical Assessor Robertson took the following psychosocial and pre-accident history:
“The applicant is a [redacted] currently in Year 4 at [redacted]. He lives with his mother CND aged [redacted], a [redacted]and father BKY aged [redacted], a [redacted]. He has a younger brother BQE aged [redacted]. The family live in a mortgaged property in [redacted] in what they consider is a safe environment with adequate community resources. The family has multiple social supports in the area. The parental relationship has been longstanding and stable. The applicant was born mildly post-dates after a ‘high risk pregnancy’ due to maternal asthma. He had a brief period in neonatal ICU but progressed with normal gross motor development. The applicant was noted to have significant feeding issues throughout his early childhood. He was later diagnosed with enlarged tonsils and adenoids causing significant dysphagia with slow growth trajectory. This was rectified surgically at kindergarten age and there appears to have been significant improvement in his developmental trajectory. The applicant had a brief period of occupational therapy due to fine motor difficulties. There was no consistent speech therapy provided despite him demonstrating language delay. The applicant had enjoyed good previous physical health and was fully vaccinated although not for COVID. There had been no previous psychiatric disturbances.”[2]
[2] Insurer’s documents at page 17.
Medical Assessor Robertson took the following history of the motor accident:
“The subject motor vehicle accident occurred on 24 June 2019. The applicant was travelling to school with his mother, appropriately restrained, in a late model Mazda sedan on Mount Annan Drive, adjacent to the Flower Power. The car at fault, a red Mazda CX5 collided with the driver’s side of the vehicle that then collided with a Holden Colorado. The vehicle’s airbags deployed and was later determined irreparable. The applicant’s mother was observed to be in acute dissociative state following the accident and witnesses needed to intervene, calling the applicant’s father. Police and ambulance attended. The applicant was taken to hospital where he was assessed as having non-serious physical injuries and discharged.”[3]
[3] Insurer’s documents at page 17.
In respect of BSP’s history of symptoms and treatment following the motor accident, Medical Assessor Robertson noted that BSP sustained a whiplash injury and presented to Dr Bijender Gautam, consultant paediatrician, with recurrent headaches. BSP complained of ongoing back pain with several reported instances of dramatic collapses. BSP was noted to have become psychologically regressed following the motor accident. He demonstrated sleep disturbance; anxiety and hypervigilance when travelling in a motor vehicle; distressing dreams; flashbacks and omens; and a morbid preoccupation with death. BSP’s peer and academic adjustment deteriorated and he became vulnerable to bullying by his peers, necessitating a change of school. He performed poorly in his NAPLAN assessment. He was treated with clonidine by a child psychiatrist and also consulted Ms Marcos for psychological treatment. BSP’s treatment had been disrupted by the COVID-19 period and by frequent changes of therapist.
Medical Assessor Robertson noted that BSP’s mother’s mental health had been significantly affected by the motor accident. She was diagnosed with post-traumatic stress disorder and sustained various physical injuries. CND’s mental health remained an ongoing problem. There had been significant disharmony in the family system with tension in the marital relationship. CND has had to reduce working hours, which has placed the family under financial strain.
In respect of current symptoms, Medical Assessor Robertson noted that BSP continued to experience nightmares and flashbacks of the motor accident triggered by travelling in a car in similar circumstances, particularly when driving past the scene of the motor accident, resulting in his mother changing her route when driving to school. He continued to be vulnerable to bullying behaviour in his new school. BSP’s teachers have noted that he is distractible, inattentive and disorganised. He appeared to be struggling to keep up with his peers. The family opted to obtain the services of a tutor and it is likely that BSP will require additional learning assistance at school. BSP’s peer functioning continued to be problematic with him often being at odds and verbally aggressive. He was occasionally verbally aggressive or oppositional with his parents.

On mental state examination, Medical Assessor Robertson observed BSP to be a well-cared for child who demonstrated appropriate features for his age. He impressed as an articulate and well-behaved young person. He answered questions appropriately and appeared to have superior verbal skills for his age. BSP participated patiently with the interview. Medical Assessor Robertson saw no evidence of the behavioural disturbance or fidgetiness observed by Dr Christopher Rikard-Bell, consultant psychiatrist. BSP did not demonstrate any significant psychological distress at the interview but became quite tense when discussing the motor accident.
In respect of consistency, Medical Assessor Robertson observed that the assessment did not appear compromised by CND’s coaching of BSP in his history. The information provided was consistent with that observed by Medical Assessor Robert Gertler and Dr Rikard-Bell. Medical Assessor Robertson saw no evidence to suggest that the information provided was unreliable.
Medical Assessor Robertson recorded the reporting provided to him by BSP and his mother in respect of his day-to-day functioning, which covered the six areas of function in the PIRS.
In respect of BSP’s diagnosis, Medical Assessor Robertson opined:
“After the subject motor vehicle accident, the applicant developed acute posttraumatic stress disorder which has persisted for more than 2 years. This occurred against the background of some developmental difficulties that appeared to have rectified with surgical intervention for tonsillomegaly. His speech and language delay and other difficulties appeared to relate to difficulties with feeding and failure to thrive as an infant. This appeared to be an instance of a reversible developmental delay.”[4]
[4] Insurer's documents at page 20 at [18].
In respect of causation, Medical Assessor Robertson attributed BSP’s post-traumatic stress disorder to the motor accident. He observed that, immediately prior to the motor accident, BSP’s early life difficulties had rectified and that there was no evidence of psychopathological disturbance to warrant a consideration of existing psychosocial impairment.
In respect of the PIRS six areas of function, Medical Assessor Robertson assessed BSP as follows and provided his reasons for the same:
(a)     self-care and personal hygiene: class 2;
(b)     social and recreational activities: class 3;
(c)     travel: class 2;
(d)     social functioning (relationships): class 2;
(e)     concentration, persistence and pace: class 3, and
(f)     adaptation: class 3.

Medical Assessor Robertson assessed BSP as having a 15% WPI.
In respect of apportionment, Medical Assessor Robertson noted that BSP’s previous developmental difficulties had rectified with surgical intervention. He opined that there was no credible argument that there was a pre-existing vulnerability that required a separate evaluation of the PIRS. He further noted that his opinion in this regard also reflected the views of Dr Rikard-Bell and Medical Assessor Gertler.
Medical Assessor Robertson opined that BSP’s psychological state persisted and that there was no argument for the addition of WPI for the effects of treatment.

REVIEW OF EVIDENCE

Treating medical records and reports

Pre-accident

In evidence, there are BSP’s clinical records produced by Campbelltown Mall Medical Centre (CMMC).[5]
[5] Insurer's documents at pages 271-533.
The entry in the CMMC clinical records dated 26 November 2012 stated that BSP had a slight fever following immunisation and was a bit off feeding with a runny nose.
The entry in the CMMC clinical records dated 27 November 2012 stated that BSP’s feeding had improved and that he had only one big vomiting episode. He had slight symptoms consistent with reflux.
The entry in the CMMC clinical records dated 28 February 2013 stated that BSP’s weight, height and head circumference were in the average range. He had choking episodes from massive reflux which settled after about six months.
On 18 July 2013, Dr Michael Freelander, paediatrician, reported that BSP had feeding difficulties and tended to shut his mouth when his mother approached with a spoon or bottle. However, he was still thriving with his weight being 8.7kg, length 72.5cm and head circumference of 45cm.[6]
[6] Insurer's documents at page 141.
On 16 October 2013, Dr Freelander reported that BSP still did not like having bottles but was eating solids and was gradually putting on weight.[7]
[7] Insurer's documents at page 439.
There were subsequent references in the CMMC clinical records to BSP’s difficulties feeding from a bottle consistent with previous reports from his paediatrician and others. The clinical records also recorded recurrent upper respiratory tract infections and occasionally, fever.
The entry in the CMMC clinical records dated 4 January 2017 summarised BSP’s condition as lifelong problems with not eating solid food. It was noted that he had difficulties swallowing and gagged on mashed vegetables or fruit. He had consulted many people but no formal testing of swallowing or other gastrointestinal investigations had been undertaken. He had been assessed by a paediatric gastroenterologist, four paediatricians and the paediatric feeding clinic.
On 28 July 2017, Dr Michael Chin, ear nose and throat surgeon, reported that BSP was a four-year-old boy who had been referred to him with intermittent tonsillitis and obstructive sleep apnoea. He also had difficulties with feeding and constantly breathed through his mouth and took breaths in between bites. On examination, Dr Chin observed that BSP had a grade III palatine tonsillar hypertrophy and had crusting within his left nasal cavity but no congestion. Dr Chin recommended that BSP would benefit from a tonsillectomy and possible adenoidectomy.
The Sydney South West Private Hospital nursing discharge summary dated 14 November 2017 stated that BSP underwent an adeno-tonsillectomy and a nasal endoscopy by Dr Chin.[8]
[8] Insurer's documents at pages 426-429.
The entry in the CMMC clinical records dated 19 November 2017 stated that BSP had undergone a tonsillectomy and adenoidectomy five days previously. He was drinking but not eating and was taking Amoxil and was afebrile.
The entry in the CMMC clinical records dated 9 January 2018 stated that BSP had difficulties with confidence about swallowing food and was eating safe foods. BSP’s mother was trying to get him to have pieces of chicken that were rolled. This appeared to be having a good effect.
There were subsequent entries in the CMMC clinical records in 2019 about upper respiratory tract infections but only occasional references to gastrointestinal symptoms such as vomiting.
On 21 June 2019, BSP consulted Dr Bijender Gautam, consultant paediatrician, in respect of his ongoing learning difficulties and behavioural issues at the request of his general practitioner Dr Hillver Ng of the Campbelltown Mall Medical Centre. Dr Gautam reported to Dr Ng on 12 July 2019.[9] Dr Gautam noted that BSP had developmental delay in his speech, language and social communication skills. He noted that he was in year 1 at [redacted] and was suspected to have dysgraphia and dyscalculia. A behavioural optometrist opined that BSP had some form of primitive reflexes and he was advised to see a kinesiologist or paediatric chiropractor. Dr Gautam opined that BSP had a specific learning disorder, including dysgraphia and severely delayed receptive language. Dr Gautam opined that BSP would benefit from ongoing speech therapy and intervention with an occupational therapist. BSP did not require medication. Dr Gautam intended to review BSP in six months’ time and would watch closely for possible symptoms of attention deficit disorder due to his poor working memory, processing speed and verbal comprehension.

Post-accident
[9] Insurer's documents at pages 71-72.

The discharge referral from Campbelltown Hospital dated 24 June 2019 stated that BSP was a passenger in a vehicle driven by his mother when it was impacted on the driver’s side at the back, causing the vehicle to spin and to hit another vehicle. BSP was in the middle of the back seat wearing a seatbelt. He was crying and upset that he would miss school. He had right knee pain but did not have a limp when he walked. He complained of a headache. He had self-extracted from the vehicle.[10]
[10] Insurer's documents at pages 44-48.
The entry in the CMMC clinical records dated 25 June 2019 stated that BSP was involved in a motor accident on the previous day when his mother was driving. He was seated in the middle of the back seat with a harness booster with an additional seatbelt. They were hit from behind, the vehicle spun almost 360° and impacted another car and came to a stop. The airbags deployed. He was able to get out of the vehicle and go to the footpath. He complained of neck pain, headache and sore eyes. He was assessed at hospital, discharged, went to school and after two hours complained of neck pain and headache. He went back to hospital where he was observed and given Panadol. He had a loss of appetite. He slept with his mother and slept off and on.
The entry in the CMMC clinical records dated 5 July 2019 stated that BSP still slept with his mother. He was a bit anxious in motor vehicles and yelled about other cars being around. He was eating about three quarters of his usual food intake.
The entry in the CMMC clinical records dated 9 August 2019 stated that BSP was anxious. He was not sleeping well. He was angry with a lot of things, including cars turning and police. He was saying a lot of what ifs. He had a loss of appetite. Balance was not good. At times, he cried and was inconsolable and could not handle the teacher raising her voice.
The entry in the CMMC clinical records dated 9 September 2019 stated that BSP was still suffering from headaches; was still stressed when in a car; was still obsessed with car accidents; was sleeping slightly better; and was talking in his sleep.
The entry in the CMMC clinical records dated 18 September 2019 stated that BSP still had a sore neck with running. He still had a headache and his legs did not have power. He wanted his mother to stay with him.
On 1 November 2019, Ms Stacey Coltheart, physiotherapist in paediatrics, reported that BSP had commenced physiotherapy for neck pain and headaches following the motor accident. Since the motor accident, BSP had complained of neck symptoms every second day and neck pain and headaches twice weekly. He complained that his neck was not strong enough to hold his head up and he had to hold his head with his hands. The pain was moderate in nature and required Advil for relief. He also had nightmares, sleep talking and issues with falling asleep and getting comfortable since the motor accident.[11]
[11] Insurer's documents at pages 389-390.
In an allied health recovery request dated 12 December 2019 by Ms Judit Markos, psychologist, she opined that BSP was struggling with significant emotional and physical difficulties since the time of the motor accident. He presented with symptoms indicative of adjustment disorder and post-traumatic stress disorder. She recommended that BSP engage in regular and targeted psychological sessions to assist him to process and recover from the trauma of the motor accident and his injuries.[12]
[12] Insurer's documents at pages 59-63.
On 17 January 2020, Dr Gautam referred BSP for psychiatric assessment to Dr Mukesh Prabhuswamy, consultant child psychiatrist. In the referral letter, Dr Gautam noted that BSP had been involved in a motor accident and had been diagnosed with post-traumatic stress disorder and an adjustment disorder by a psychologist. Dr Gautam noted that he had consulted BSP in the past for ongoing learning difficulties and behavioural issues and referred to his observations and opinions in this regard. Dr Gautam stated that BSP had major sleeping difficulties and anxious behaviour since the motor accident.[13]
[13] Insurer's documents at page 70.
On 17 January 2020, BSP consulted Dr Gautam, who reported back to Dr Ng on 26 January 2020.[14] Dr Gautam repeated the history contained in his previous reports but noted that BSP had been involved in a motor accident on 24 June 2019 and was taken to an emergency department. Following his discharge from hospital, he was linked to a child psychologist and received regular cognitive and behaviour therapy. Over the past six months, he was noted to have a high level of anxiety. As CND was considered to be the party at fault in the motor accident, the insurer disputed the psychologist’s diagnosis and did not support ongoing psychological intervention. Dr Gautam noted that BSP’s biggest issue was his sleeping difficulties. Therefore, he recommended a trial of melatonin, initially, at 1mg and if BSP continued to have ongoing sleeping issues, then the dosage could be increased up to 2mg. Dr Gautam referred BSP to a child psychiatrist for a comprehensive assessment for a diagnosis of post-traumatic stress disorder and adjustment disorder.
[14] Insurer's documents at page 69.
On 6 March 2020, Ms Coltheart reported that BSP had been attending physiotherapy at the end of 2019 and the beginning of 2020 for treatment of a whiplash injury. BSP had responded well to treatment but had started to develop different symptoms affecting his lower limbs. He continued to have pain in his neck after a day at school and complained of weakness, pain and giving way in his legs when mobilising on stairs, walking and running activities and has been reported to fall down stairs several times due to his legs giving way. The weakness has been observed by his teacher, martial arts coach and swimming instructor.[15]
[15] Insurer’s documents at page 387.
On 11 May 2020, BSP first consulted Mrs Breanne Jakeman, physiotherapist, of Feel Better Physiotherapy. Mrs Jakeman noted that BSP had been involved in a motor accident the previous year and had been consulting a physiotherapist at Physiopaedics for treatment of back and neck pain on and off since the motor accident. She also noted that BSP had post-traumatic stress disorder since the motor accident and did not like being in a car, especially over long distances. He had appointments with a psychologist to assist with strategies to improve his condition. Since the motor accident, he had been complaining of lower back pain with pain radiating into the buttocks, neck pain and headaches. He complained that his legs were not working properly. CND described it as difficulties coordinating movement since the motor accident.[16]
[16] Insurer’s documents at pages 722-723.
The entry in the CMMC clinical records dated 3 August 2020 stated that BSP’s left leg buckled when doing exercise.
In an allied health recovery request dated 14 August 2020 by Ms Markos,[17] she noted that BSP had not been formally diagnosed but made a provisional diagnosis of adjustment disorder and post-traumatic stress disorder. In the document, Ms Markos listed BSP’s current signs and symptoms and noted that his daily functioning had been affected at home, school and in the wider community. He remained very anxious whilst travelling in motor vehicles, even on familiar routes. He preferred video telehealth consultations from his home or school because he felt that the office was too far away and he was fearful and anxious about the drive. He expressed worry about being involved in another motor accident and that he and his family might not survive if that occurred. He had strong themes of car accidents, emergency and safety concerns. Discussing the events of accidents caused significant triggers for him. He continued to experience sleeping difficulties, trouble falling asleep on his own and frequent nightmares. He struggled to regulate his emotions at home and at school. It had affected his focus on learning and was beginning to have a negative impact on his friendships and interpersonal relationships. He was easily upset and often had an anxious presentation following drives to reach necessary destinations such as school and family visits.
[17] Claimant's documents at pages 14-19.
On 8 February 2021, BSP presented to Campbelltown Hospital with bilateral frontal headaches, vomiting, nausea and associated dizziness. The headache was described as “rocking [sic] hitting head/pressure-like” and was intermittent.[18] The headache lasted for up to half a day at a time and waxed and waned in severity. He had an upcoming excursion where he needed to sleep away from home, which was something he had not done since the motor accident. CND thought that he was anxious about it. Possible diagnoses were vascular migraine or benign intracranial hypertension. The symptoms improved and there were no issues. BSP was discharged on 10 February 2021.
[18] Insurer's documents at pages 363-367.
On 11 February 2021, BSP underwent an MRI scan of his brain by Dr Ahmed Mayat, radiologist. The scan was unremarkable. There were no space-occupying lesions or imaging evidence of increased intracranial pressure detected.[19]
[19] Insurer's documents at page 372.
On 26 March 2021, BSP consulted Dr Gautam, who reported back to Dr Ng on 10 April 2021.[20] Dr Gautam noted that CND was concerned about BSP’s sleeping difficulties and ongoing intermittent headaches. Dr Gautam recommended that he use a small dose of melatonin for his sleep onset and sleep maintenance. He requested CND to maintain a headache diary and have BSP use simple analgesics like ibuprofen or paracetamol.
[20] Insurer's documents at pages 151-152.
On 4 May 2021, BSP consulted Mrs Jakeman and complained that his legs were not working again and that his back was feeling sore. Mrs Jakeman noted that BSP had consulted a paediatrician who found no abnormalities. BSP reported that he needed to use his hands to push himself up when sitting and was then able to stand without using his hands. He was able to jump forwards small distances but fatigued easily. He was able to jump with two feet together. He was able to do star jumps and scissor jumps but was unable to coordinate his legs and arms. He was able to kick a ball when it was stationary but swung over the ball if it was moving. Mrs Jakeman observed that he had an immature running gait for his age. Mrs Jakeman’s provisional diagnosis was one of a developmental coordination disorder, which would explain why he was not as fast as his peers, was clumsy at times and felt like his legs were giving way. Mrs Jakeman encouraged him to participate in sport and swimming to improve his coordination and strength or that he consult an exercise physiologist.[21]
[21] Insurer's documents at page 735.
On 4 June 2021, BSP consulted Dr Gautam, who reported back to Dr Ng.[22] Dr Gautam and CND had a discussion about BSP’s worsening sleeping difficulties and that he had been on a high dose of melatonin with minimal improvement. Dr Gautam suggested a trial of clonidine 25mcg, which could be increased up to 100mcg over a period of six weeks if BSP experienced ongoing sleeping difficulties.
[22] Insurer's documents at pages 153-154.
The entry in the CMMC clinical records dated 9 July 2021 stated that melatonin did not help with BSP’s sleep as suggested by Dr Gautam. It was suggested that he might try Concerta to help with his concentration and sleep.
On 20 July 2021, BSP consulted Dr Veena Ragupathy, consultant psychiatrist, in the company of his parents and younger brother on the referral of Dr Ng. Dr Ragupathy reported to Dr Ng that BSP was a socially well-adjusted young boy prior to the motor accident in June 2019, the experience of which had caused a massive functional impairment to BSP due to a range of difficulties.
Dr Ragupathy took the following history:
“The salient background history includes no family history of psychiatric disorders except PTSD from the MVA. BSP was born of a high-risk pregnancy secondary to maternal asthma. He had feeling [sic: feeding] difficulties since birth due to recurrent upper respiratory tract infections that were eventually diagnosed at the age of four years and his feeding difficulties gradually improved following the surgical removal of tonsils and adenoids. Margeuritte [sic] reported that BSP had a brief time at daycare due to his feeding difficulties. Additionally, BSP had mild separation anxiety that improved following the surgery at the age of four years. BSP transitioned to school well with nil difficulties and he enjoyed attending school. His teacher was concerned about his handwriting. BSP was reviewed by his paediatrician who was concerned about some delays in his development due to more focus on his earlier feeding difficulties from recurrent upper respiratory tract infections. A subsequent IQ test result revealed scattered results with high expressive language and fluency but low receptive language for his age.”[23]
[23] Insurer's documents at page 111.

Dr Ragupathy noted that, following the motor accident, BSP was emotionally upset and demanded to be at school. However, on reaching school, he complained of neck pain and his father took him back to the emergency department. CND stated that BSP had changed his personality following the motor accident. He presented with increased problem behaviours at school despite having an uneventful kindergarten year. BSP’s personality had changed. He had been disruptive in the classroom and had challenging behaviours including, anger outbursts and prolonged tantrums. CND reported that she had many meetings with the school about BSP’s challenging behaviours. He had negative self-talk, low confidence, fear of making mistakes, low frustration tolerance and heightened noise sensitivity. He had moderately severe separation anxiety from his mother and school avoidance behaviours.
Dr Ragupathy observed that BSP had post-traumatic stress disorder symptoms that included recurrent flashbacks, hypervigilance following the motor accident, recurrent nightmares with death themes, panic attack symptoms including feeling dizzy and blurring of vision with dissociative episodes, concentration difficulties and disordered eating. He has had recurrent ongoing head and neck pain and bedwetting issues since the motor accident.
Dr Ragupathy diagnosed BSP as meeting the criteria for mixed anxiety disorder with features of separation anxiety and post-traumatic stress disorder and emotion dysregulation. Dr Ragupathy opined that these disorders were causing significant functional impairment. Further, BSP had chronic pain which is impacting his abilities.
Dr Ragupathy recommended medication and psychological interventions. She suggested increasing clonidine to 50mcg at night and to increase the dosage in the event of a partial response to 100mcg at night to target sleep disturbance and post-traumatic stress disorder symptoms.
The entry in the CMMC clinical records dated 31 July 2021 referred to Dr Gautam’s letter which stated that BSP had episodes of migraine headaches, high levels of generalised and social anxieties, sleeping issues and pre-existing post-traumatic stress disorder. It was suggested he try clonidine for sleep.
The entry in the CMMC clinical records dated 10 February 2022 stated that BSP had anxiety symptoms, difficulty with sleep and may wake at night. If he wakes, he then sleeps in his mother’s bed.
On 18 March 2022, BSP consulted Dr Gautam, who reported back to Dr Ng.[24] Dr Gautam noted that BSP was suffering from separation and social anxiety associated with a post-traumatic stress disorder following the motor accident. He noted that BSP remained on clonidine 25mcg at breakfast and 100mcg at night. He recommended that BSP continue the current dose of clonidine for his sleep onset and sleep maintenance difficulties.
[24] Insurer's documents at page 155.
The entry in the CMMC clinical records dated 21 March 2022 stated that BSP had anxiety and separation anxiety symptoms. He needed to know the location of his mother at all times.
On 10 June 2022, BSP consulted Mrs Jakeman complaining that his leg pain had been getting worse and that he was experiencing pain in the front of his left thigh. Sometimes, his legs were sore when he got out of bed. He had pain at the front of both legs, most often on the front of the right leg a couple of times a week. Sometimes, he felt weak in the legs after sport or exercising. He always noticed the weakness in his legs after playing basketball. He complained of tightness in the quadriceps at the end of range. Mrs Jakeman encouraged BSP to get into a regular exercise program with an exercise physiologist to assist with building strength and maintaining mobility.[25]
[25] Insurer's documents at page 742.

[redacted]

In evidence, there are documents produced by [redacted] in respect of BSP.[26]
[26] Insurer's documents at pages 534-721.

Student report kindergarten – semester 1 2018

The report noted that BSP was absent for four full days and five partial days during the semester.
The report provided the following general comment in respect of BSP:
“BSP has made some pleasing gains during Semester 1. He is very social and is working towards his goal of staying focused during whole class lessons and discussions. BSP has a small group of very close friends he plays with in the classroom and playground, however, when engaged in play with other classes during class time, he plays with a range of students and is independent in his choice of tasks. BSP has worked hard on his fine motor skills in class and at home and should be proud of his progress with his pencil grip and letter formation. He should she [sic: see] continued improvement from continuing this throughout Semester 2 to assist. BSP benefits from hands on activities and he loves taking part in Science lessons and hypothesising and testing out his guesses. He has worked hard during this term to ensure he completes most day to day classroom tasks independently and he looks after his own belongings responsibly.”[27]
[27] Insurer's documents at page 598.

Student report kindergarten – semester 2 2018

The report noted that BSP was absent for four full days and nine partial days during the semester.
The report provided the following general comment in respect of BSP:
“BSP has continued to make pleasing gains throughout Semester 2. He has improved in his ability to stay on task for longer, especially when he finds the task more challenging. BSP has continued to thrive socially in the classroom and the playground and he is learning how to compromise his wants and needs with his friends and listen to others and their points of view. BSP has worked on staying on task during whole class discussions and he prefers small group activities as he has a need to discuss what he is learning to understand it for himself. BSP needs teacher assistance to scribe his work so he can express his creative ideas. BSP has enjoyed taking part in more hands on lessons and experiments this term and he has a real passion for understanding how things work. BSP has found some aspects of Kindergarten challenging this year, however, he is to be commended for his persistence in giving everything a go. It has been wonderful to teach BSP.”[28]
[28] Insurer's documents at page 688.

Student report year 1 – semester 1 2019

The report noted that BSP was absent for 21 full days during the semester.
The report provided the following general comment in respect of BSP:
“BSP is a well-mannered student in the classroom and he enjoys participating in all learning activities. He is a cooperative friend in the playground. He comes smartly dressed in his school uniform each day. Although BSP gives a fair effort and appears attentive and engaged, working on tasks and attempting to complete them demonstrates that he is facing challenges with the curriculum. Strategies have been put in place to support him in the classroom. He also receives support outside of school with the help of a tutor and an Occupational Therapist. It is hoped that this joint effort should enable him to progress and begin achieving the parts of the curriculum that he is currently addressing.”[29]
[29] Insurer's documents at page 574.
In respect of his English studies, the report noted that BSP was quite articulate when verbally presenting on familiar subject matters. He had been working hard to improve his reading and comprehension skills but progress had been slow. He had begun to record a few legible words in writing. He was keen to share his stories with classmates but he was not always able to read his own work. In semester 2, BSP will receive as much one-on-one support in the classroom as is practically possible.
In respect of his mathematics studies, the report noted that BSP was yet to start achieving the year 1 curriculum despite individual support. His concern was his ability to make one to one correspondence when counting items. He was able to do so sometimes but not at other times.

Student report year 1 – semester 2 2019

The report noted that BSP was absent for four full days during the semester.
The report provided the following general comment in respect of BSP:
“In this second semester, BSP was more engaged in all the activities in the classroom than in Semester One. He voluntarily and confidently participated in discussions and was quite socially involved with his classmates. It has been particularly pleasing to note that BSP asks for assistance as often as he needs it and he willingly undertakes the tasks required of him. The continuing support that he receives both inside and outside of school has started to bear fruit. BSP, I commend you for your effort and determination in learning and encourage you to keep persisting.”[30]
[30] Insurer's documents at page 585.
In respect of his English studies, the report noted that BSP was now able to read all the single sounds and was in the initial stages of blending. He could write complete and meaningful sentences. He could copy handwriting drills from the whiteboard with a level of legibility. He could read some unfamiliar books fluently on the first attempt and was reading his sight words more accurately.
In respect of his mathematics studies, the report noted that BSP’s attitude towards mathematics had been one of confidence and giving every task a fair go. He was able to count and identify any number up to 30 and his goal was to do so with numbers up to 50. He correctly added single digit numbers. However, sometimes, he mistook subtraction for addition once two digit numbers were involved. He had not yet achieved the outcomes for year 1.

Student report year 2 – semester 1 2020

The report noted that BSP was absent for no full days and three partial days during the semester.
The report provided the following general comment in respect of BSP:
“BSP has made a positive start to the year. I have enjoyed getting to know him and watching his confidence grow every day. He thrives on one-on-one instruction and support and is achieving good results across all Key Learning Areas. He enjoyed working online during Remote Learning and displayed a good understanding of the concepts taught, particularly in Mathematics. BSP relies on his friendship with Sean. I would love for BSP to develop a wider circle of friends and develop some positive relationships with other students from the class.”[31]
[31] Insurer's documents at page 720.

Student report year 2 – semester 2 2020

The report noted that BSP was absent for three full days and three partial days during the semester.
The report provided the following general comment in respect of BSP:
“It has been a pleasure teaching BSP this year. He is a polite and caring boy who goes out of his way to make sure others are included. BSP has made a consistent effort in all areas this semester and as a result has made some wonderful achievements, particularly in English. BSP has worked hard to improve his writing this semester and has displayed a good understanding of strategies learned during spelling. He has worked hard to ignore distractions in the classroom and work productively and independently. BSP has benefited from the Drama Intervention Program this year where he has developed his confidence and resilience. He has eagerly participated in characterisation activities and play building with his peers and he is to be commended on his efforts overall. BSP is encouraged to work with a range of different students in the group. Congratulations on receiving your Gold Award and on a wonderful year BSP, I wish you all the best in Year 3!”[32]
[32] Insurer's documents at page 712.
In respect of his Christian studies, the report noted that BSP had worked steadily through the activities. He had participated in re-enacting Bible stories and doing so with his peers.
In respect of his English studies, the report noted that BSP had made outstanding progress and had developed a sound bank of sight words and reading strategies to use during writing and reading tasks. He had worked hard to develop a range of strategies and demonstrated great comprehension skills. He was developing confidence when reading out loud and was beginning to add expression. His reading goal was to make sure that he was recognising punctuation as he read. He had a good understanding of narrative text structure and was beginning to create imaginative text. He had made an outstanding effort to improve his handwriting. He had demonstrated an ability to form his letters correctly and was working on using the whole space between the lines to keep his letters consistent.
In respect of his mathematics studies, the report noted that BSP had displayed an excellent level of participation. He had a good knowledge of numbers and was able to recognise different number patterns. He had a good understanding of addition and subtraction strategies and implemented these to solve basic number problems. He was able to read a clock and identify the time on the hour and half hour. He could identify the days of the week and the months of the year in the correct order. He was developing the ability to read a calendar.

Student report year 3 – semester 1 2021

The report noted that BSP was absent for eight full days during the semester.
The report provided the following general comment in respect of BSP:
“BSP is bold in the way he approaches his learning and is beginning to recognise the importance of working collaboratively with others in a respectful and polite manner. He has displayed growth in his self-confidence, evident in the increased frequency of contributions of thoughts and opinions during class discussion and group work. BSP attempts all tasks and aspires to further his learning journey, which is encouraging to witness. He has enjoyed his work with Sphero robotics during Tinker Time Challenge activities, creating works that he is proud of. BSP is working diligently to build positive relations with his peers and is developing his strategies for overcoming conflict well. Keep up the great work and effort, BSP!”[33]
[33] Insurer's documents at page 701.
In respect of his Christian studies, the report noted that BSP had shown an interest in these studies, particularly stories about children from the Bible and their courage. He engaged in his bookwork and produced interesting answers. He was learning to find passages in the Bible and read them in class. He participated in class discussions and was attentive at prayer time, showing empathy for people around him. He has a lovely heart and is kind to people.
In respect of his English studies, the report noted that BSP had learnt to approach writing tasks with a positive attitude and had shown signs of listening to feedback as well. He enjoyed reading and developing comprehension strategy of back up and re-read to ensure that he understood. He should benefit from revising his letter formation as this will improve the neatness and efficiency of his handwriting. He enjoyed the class novels, was listening well and engaging in discussions that includes predictions and descriptions. He should continue to work on his writing skills with a focus on sentence structure and spelling. He was working hard to achieve his learning goals.
In respect of his mathematics studies, the report noted that BSP was attentive during mathematics lessons and was beginning to recall basic number facts. He was beginning to add multi-digit numbers and attempted to trade and carry when needed. He was learning to calculate the area and perimeter of formal units. He was striving to attain automaticity with multiplication tables. He was encouraged to attempt to decipher the correct unit of measure during mass, volume and capacity lessons. He seemed to be enjoying developing his skills with a ruler to accurately and correctly measure objects from around the college.

[Redacted]

In evidence, there are documents produced by [redacted] in respect of BSP.[34]
[34] Insurer's documents at pages 749-826.
The entry in BSP’s student Chronicle dated 13 May 2022 by Mrs Katrina Crews recorded that BSP was trying to get the attention of a child who was ignoring him by tapping him on the arm. BSP wanted to tell the child that he no longer wanted to be friends with him. It was unintentional but BSP was told that he could not touch others.
The entry in BSP’s student Chronicle dated 26 May 2022 by Mrs Crews stated that she had spoken to CND about a conversation she had with three boys who were having issues. The three boys were told to stay away from each other. CND was informed that BSP had received a number of reminders about his actions that morning when he went up to someone and told him that he was learning to punch. CND asked about an incident on 31 March 2022 and was informed that there was no evidence in respect of the incident. The incident involved BSP knocking food out of other children’s hands, being told that he should not do so and then someone punching BSP in the stomach.

Student report year 4 – semester 1 2022

The report provided the following general comment by BSP’s teacher:
“BSP is a polite and enthusiastic member of Year 4. He has approached learning in his new school environment with enthusiasm. BSP is developing the skills required for building and maintaining positive relationships with his peers. He has shown confidence in asking for additional assistance when required as well as reflecting on his learning through his success criteria. BSP has become more active in contributing to class discussions throughout the semester and has developed a new found skill set in using technology for a variety of learning tasks. He is to be commended for her [sic: his] efforts this semester.”[35]
[35] Insurer's documents at page 781.
In respect of his religious education, the report noted that BSP could list actions that help to build right relationships based on love and respect; explain the significance of the sacrament of reconciliation; and explain how the disciples responded to the resurrection and the appearances of Jesus.
In respect of his English studies, the report noted that BSP was able to experiment with figurative language when composing text to engage an audience; summarise a paragraph and indicate the main idea, key points or key arguments in imaginative and persuasive text; and understand how to use spelling strategies including rules, knowledge of word families and other combinations.
In respect of his mathematics studies, the report noted that BSP was able to use the term “product” to describe the result of multiplying two or more numbers; find the missing number in a number sentence involving operations of addition or subtraction on both sides of the equals sign; use a compass to find north and then east, south and west; and count by twos, threes and fours using skip counting.

Student report year 4 – semester 2 2022

The report provided the following general comment by BSP’s teacher:
“BSP has been a welcomed addition, not only as a member of 4 Blue, but also as a member of the [redacted] community. He has developed some positive relationships with various members of the class as well as the grade. BSP is developing the confidence to contribute to class discussions and share his ideas. He works collaboratively with others and is developing in his ability to remain on task when working independently. BSP is encouraged to continue working towards the presentation of his bookwork and following the expectations for all tasks. He has attended the Puzzling People Mathematics Club during break time weekly this semester. I wish him all the best for 2023.”[36]
[36] Insurer's documents at page 774.
In respect of his religious education, the report noted that BSP demonstrated an understanding of responsibility to respect himself, others and all creation. He recognised holy people and saints as people who reflected God’s goodness and demonstrated familiarity with some formal prayers.
In respect of his English studies, the report noted that BSP was able to compare and review written and visual texts for different purposes and audiences. He could identify the audience and the purpose for imaginative informative and/or persuasive texts. He could make connections between personal experience and those of characters and events represented in the text.

In respect of his mathematics studies, the report noted that BSP was able to recognise and describe angles as less than, or equal to, or the same as. He could use terms equally like “likely” and “unlikely” to describe everyday events. He could use a tape measure, ruler and trundle wheel to measure length and distance.

Medico-legal reports
Dr Christopher Rikard-Bell: 19 May 2022

On 3 December 2021, BSP consulted Dr Christopher Rikard-Bell, consultant psychiatrist, at the request of the insurer by video link in the presence of CND. Dr Rikard-Bell prepared two reports dated 19 May 2022.[37]
[37] Insurer's documents at pages 87-103.
Dr Rikard-Bell took a detailed history of the motor accident that was consistent with the evidence. In addition, BSP explained that, in the motor accident, he hit his head and hurt his left leg. Sometimes, he found it difficult to run. He got whiplash and was treated with physiotherapy to his back as well.
In respect of the impact of the motor accident on BSP, Dr Rikard-Bell reported:
“BSP was in a state of shock after the accident and he was crying complaining of having hit his head in the car. BQE (his younger brother) was non-responsive and not talking. BSP was very distressed and kept asking ‘why did the car crash.’ He was anxious and his father had to take him home. Therefore, he was discharged early but as he was unwell with headaches and vomiting, he became hysterical and was brought back to the hospital for monitoring. The recovery has been slow and there has been monthly treatment with physiotherapy. His left leg is sore and at times it will give way or collapse. There is lower back pain and numbness in the legs, as well as neck pain at school.
Following the motor vehicle accident, BSP’s school functioning deteriorated when in Year 1. There were arguments with his teacher who was punitive and there were weekly meetings monitoring behaviour. In Year 2, in 2020, the teacher was better and there was some improvement. Fortunately, with COVID BSP was able to be home schooled and there was much less anxiety rather than having to go to school. In Year 3 there have been two teachers, one of whom he gets on well with.”[38]
[38] Insurer's documents at pages 93-94.
Dr Rikard-Bell reported that there were no previous psychological or behavioural issues.
In respect of current symptoms, Dr Rikard-Bell reported that BSP was constantly anxious and hypervigilant. He was constantly worried and clinged to his mother. There was difficulty breathing when in the car and there were emotional meltdowns with anger outbursts. He did not like to sleep on his own at night and his mother had to stay with him. BSP found it difficult to separate when going to school and there were dreams about the motor accident. He was worried about ambulances and loud noises. BSP was generally fearful about emergency vehicles and bushfires. He did not like to be away from his mother and constantly wanted her to be close to him.
Dr Rikard-Bell provided the following opinion and summary:
“BSP is a 9-year-old boy in Year 3 at [redacted]. He lives with his younger brother BQE and both parents. BSP was developing reasonably well prior to the motor vehicle accident on 24 June 2019. There may have been some mild receptive language difficulties and the IQ was assessed in the low/average range. I believe there was some likelihood of vulnerability prior to the motor vehicle accident.
On 24 June 2019 BSP was involved in a motor vehicle accident involving three cars in total. His mother and brother were also in the car at the time of the accident. They were all taken to hospital after the accident. BSP had a sore left knee and some school deterioration with schoolwork.
Following the accident Dr Gertler diagnosed Post-Traumatic Stress Disorder. There was a history of Specific Learning Disorder noted. There has been treatment with a psychological treatment [sic: psychologist], however it was noted the psychiatric treatment has been unaffordable. The reports of Dr Gautum [sic: Dr Gautam], paediatrician, noted evidence of a mild learning disorder with delayed receptive language. Dr Gautum [sic: Dr Gautam] reported evidence of post-traumatic stress with hypervigilance after the accident. On 29 January 2020 the report of Judit Marcos, psychologist, noted the Post-Traumatic Stress Disorder.
I formed the view that prior to the accident BSP was a happy healthy boy who had a pre-existing Specific Learning Disorder with receptive language, however he was emotionally robust and he was developing well. Following the accident, there has been the development of Post-Traumatic Stress Disorder.”[39]
[39] Insurer's documents at pages 96-97.
Dr Rikard-Bell opined that BSP had suffered post-traumatic stress disorder caused by the motor accident. He noted a pre-existing learning disorder with receptive language difficulties.
In respect of the PIRS six areas of function, Dr Rikard-Bell assessed BSP as follows and provided his reasons for the same:
(a)     self-care and personal hygiene: class 2;
(b)     social and recreational activities: class 3;
(c)     travel: class 2;
(d)     social functioning (relationships): class 2;
(e)     concentration, persistence and pace: class 2, and
(f)     adaptation: class 2.
Dr Rikard-Bell assessed BSP as having a 7% WPI.
Dr Rikard-Bell opined that there was no apportionment for pre-existing injuries.
Dr Rikard-Bell opined that there was no adjustment for treatment effect as adequate psychological treatment had not been received to date.

Dr James Bodel: 27 April 2023

On 16 January 2023, BSP consulted Dr James Bodel, orthopaedic surgeon, at the request of his lawyers in the presence of CND. Dr Bodel prepared two reports dated 27 April 2023.[40]
[40] Claimant's documents at pages 34-92.
Dr Bodel took a history of the motor accident and its sequelae that were, in the main, consistent with the evidence.
Dr Bodel recorded BSP’s current complaints as continuing pain at the base of the neck and over the top of both shoulders and pain in the lower part of the back and weakness in both legs.
Dr Bodel diagnosed BSP as having suffered a soft tissue musculo-ligamentous injuries to the neck and the back caused by the motor accident.
Dr Bodel assessed BSP as having a 5% WPI in respect of the cervical spine and a 5% WPI in respect of his lumbosacral spine.

Medical assessment certificates

Medical Assessor Robert Gertler: 21 January 2021

On 14 January 2021, BSP was assessed by Medical Assessor Robert Gertler, psychiatrist, in respect of what was then known as “minor injury” and now known as “threshold injury”.
Medical Assessor Gertler certified that BSP had suffered a post-traumatic stress disorder caused by the motor accident which was not a minor injury (threshold injury) for the purposes of the MAI Act.
Medical Assessor Gertler took a psychosocial and pre-accident history together with a history of the motor accident and the symptoms and treatment thereafter which were, in the main, consistent with the evidence.
In respect of BSP’s current symptoms, Medical Assessor Gertler reported that BSP continued to think of the motor accident and, in particular, of the impact, the car spinning and apparently smashing into a fence. He reacted to seeing advertisements of Flower Power as one of the cars involved in the accident was a Flower Power delivery van. He remained anxious when travelling in cars particularly when other cars passed close by. He was also anxious when the car goes over a speed hump. He continued to sleep with his mother every night and experienced the occasional nightmare. He described occasional headaches and stated that his neck and back could ache at times. BSP described his schooling as having improved. He had friends at school and enjoyed studying.
In respect of current functioning, Medical Assessor Gertler reported that BSP continued to display some regressed behaviour as evidenced by the need to sleep with his mother every night. In other respects, he looked after his own room, helped his mother with certain chores and also had friends at school and occasionally, at home. Cognitively, he appeared to have improved and his classroom behaviour, in general, had tended to normalise. However, at times he stated that he felt sad and did not know why. BSP also mentioned that he was no longer tearful as he was in the months immediately following the motor accident.
Medical Assessor Gertler opined that BSP’s presentation was consistent with the history obtained from him and from CND as well as his findings on clinical examination.

SUBMISSIONS

Insurer’s submissions

Medical Assessor Roberts erred in:
(a)    determining that BSP’s WPI exceeded the 10% threshold;
(b)    failing to engage with relevant material;
(c)    failing to obtain a relevant history;
(d)    failing to provide adequate reasons;
(e)    his assessment of social and recreational activities;
(f)    his assessment of concentration, persistence and pace;
(g)    his assessment of adaptation, and
(h)    failing to apportion WPI.

Claimant’s submissions

The claimant rejected each of the insurer’s submissions and provided a detailed response in his written submissions.

THE RE-EXAMINATION

Preamble

The Panel re-examination and assessment of BSP was jointly undertaken via audio-visual link (MS Teams) on 24 January 2024 by Medical Assessor Newlyn and Medical Assessor Friend. BSP and his mother were present. BSP’s brother was in the same room and distracted BSP from time to time.
At all times, an attempt was made to obtain information from BSP and then his mother would be asked to comment.
BSP stated that he preferred to be addressed as BSP.

Psychosocial history and pre-accident history

CND reported that she was classified as a high-risk pregnancy with BSP because she had asthma which was not well controlled, but that was not a problem during the pregnancy and did not interfere with the labour. She stated the labour was long but otherwise unremarkable.
CND reported that, within a day or two of his birth, she noticed that BSP was cold and shivering. He had a medical emergency team (MET) call which led to him being transferred to the neonatal intensive call unit. She was told that BSP was dehydrated. A nasogastric tube was inserted and BSP was fed with expressed breast milk through the nasogastric tube. BSP was discharged within a week of his birth.
CND reported that BSP stopped breathing from time to time. He was assessed by Dr Raymond Chin, paediatrician, who advised her to elevate BSP’s mattress. BSP continued to have difficulty with breastfeeding and was trialled on bottle feeding. Feeding remained problematic. He was referred to the Feeding Clinic. After some time, the dietician at the Feeding Clinic stated that BSP needed to consult an ear nose and throat specialist.
BSP was referred to Dr Michael Chin, ear nose and throat specialist, who advised CND that BSP required a tonsillectomy and adenoidectomy. The tonsillectomy and adenoidectomy occurred in November 2017 according to the entry in the Campbelltown Mall Medical Centre notes dated 19 November 2017. CND reported the feeding problems and any growth or behavioural problems resolved after the surgery.
In 2018, BSP commenced kindergarten at [redacted]. He described it as fun. BSP’s teacher repeatedly told his mother that he was very confident and “ruled the school”. The teacher described him walking around followed by his “posse” of colleagues. He liked to play basketball and was not daunted by playing basketball with older school peers. The confident behaviour continued into year 1 at school.
BSP stated that prior to the motor accident he felt normal. He did everything and had no previous illnesses. He enjoyed attending school at [redacted]. The school had an open learning approach to education which included watching YouTube videos, going on bushwalks and less formal teaching.

History of the motor accident and its sequelae

BSP remembers that the motor accident occurred very quickly and was very scary. His mother was driving and his younger brother, BQE, was also in the vehicle. He remembers that their vehicle spun around after the collision and struck another vehicle. The airbags were activated. A lady took he and his brother out of the vehicle to the side of the road.
CND stated that they were in the third or kerbside lane of the road where the two right lanes were to turn right and she was to proceed either left or straight ahead. A red Mazda CX5 suddenly struck the driver’s side of their vehicle causing it to spin and collide with the vehicle next to them. The vehicle next to them contained a person trained in first aid who came over to their vehicle, opened the passenger side door and took the two boys out of the vehicle. A motorbike rider helped CND out of the vehicle and walked her over to where her sons were sitting. An ambulance arrived soon after the motor accident and all three were taken in the same ambulance to Campbelltown Hospital’s emergency department. The two boys went into the paediatric emergency section. CND’s mother met them at the hospital and accompanied the boys.
CND was told that BSP was hysterical and wanted to go to school. The hospital released him and his father drove him to school. Later the same day, the school telephoned to state that BSP was experiencing headaches and neck pains and that they should take him home. He was collected from the school and taken back to Campbelltown Hospital where he was administered Panadol and/or Nurofen. CND was given an advice sheet about the effects of concussion and they were discharged because BSP did not want to stay in hospital.
BSP remembers feeling terrible or horrible, having pain in his back and neck and struggling to sleep over the next couple of days. He had nightmares about the motor accident which could wake him up. At that time, he had difficulty getting to sleep and his mother would need to first lie down with his younger brother, who was three years younger, get him to sleep and then lie down with BSP to get him to sleep. There were no difficulties with getting to sleep prior to the motor accident.
BSP thought about the motor accident during the day. He did not understand what had happened. He cannot remember whether he had time off school, or if he did have time off school, for how long he was off school. The school expressed concern about his repeated reports of pain and a possible head injury. He remembered that he was irritable, argumentative and struggled to cope. His behaviour at school in the classroom deteriorated. His teacher or the school was contacting his mother every two to three weeks because of his angry outbursts. She described him as a different child after the motor accident. BSP and his mother agreed that there had been no problems at school with the same teacher prior to the motor accident.
CND reported that it was generally more difficult to manage BSP day to day following the motor accident. He complained of being tired and it was a struggle to get him out of bed, to get dressed, to have breakfast and to get him into the vehicle to go to school. He felt very anxious and scared, repeatedly calling out to his mother when she was driving, calling her attention to other vehicles that he thought were nearby and “fighting” with his brother. His mother typically tried to play music in the vehicle to distract her sons but they would argue about who got to choose the first piece of music.
BSP was very distressed driving past the scene of the motor accident, which was on the way to school. He became angry, would swear and say words to the effect, “Why did it happen to me? I had such a good life before the motor accident”. He had intrusive images of the motor accident come into his mind.
BSP was referred for physiotherapy. Initially, BSP consulted Ms Stacy Coltheart. He was later referred to Mrs Breanne Jakeman. Mrs Jakeman particularly encouraged him to play basketball, which he did but ceased it in November 2023 because it caused pain in his back and neck. She also advised that he should do swimming which he has continued, although he has trouble with bringing his arms above his head in freestyle, more on the left than the right.
BSP developed headaches which were diagnosed as migraine headaches and he was prescribed Sandomigran as prophylaxis for headaches and Imigran to be taken within half an hour of experiencing a headache. He was referred to an exercise physiologist. CND now pays for the exercise physiologist believing that it is beneficial.
BSP was referred to Dr Brian Hsu, spinal surgeon, at Westmead Children’s Hospital. Dr Hsu is in the process of assessing his injuries.
BSP was referred to Dr Veena Raghupathy, child and adolescent psychiatrist, who assessed him on 20 January 2021 with his mother by video teleconference because of the COVID-19 pandemic restrictions.
Dr Raghupathy opined that BSP had moderately severe post-traumatic stress disorder secondary to the motor accident and his symptoms included recurrent flashbacks, hypervigilance in the car, recurrent nightmares with death themes, panic attack symptoms, dissociative episodes and concentration difficulties and difficulty with eating.
Dr Raghupathy wrote to Dr Gautam, paediatrician, whom BSP had been consulting and advised that he be prescribed clonidine 50mcg initially, increasing to 100mcg. Dr Raghupathy also recommended trauma focused cognitive behavioural therapy and eye movement desensitisation and reprocessing.
BSP continued to take clonidine until about mid-2023. Dr Gautam stated that he wanted to trial BSP without clonidine and it was gradually withdrawn. BSP did not like being on clonidine. His anxiety was a little better, but there was not much improvement in his symptoms. He felt happier and believed that he has been more focused, since ceasing clonidine.

Injuries or conditions since the motor accident

The COVID-19 pandemic commenced in Australia in about February/March 2020. There were several periods from 2020 to 2022 where BSP and his brother were home schooled. CND found that it was difficult to get them to stay focused. She would have to get them to do a page of schoolwork at a time and then allow them to run around outside for five minutes. BSP enjoyed not having to travel to school in a vehicle and got out of the habit of even leaving home.
CND reported that It was difficult to get both boys back to school once school resumed face to face and similarly difficult to get them to travel by motor vehicle. They have gradually successfully transitioned to resuming school face to face and travelling by motor vehicle.
In 2020 or early 2021, CND and her boys passed the driver who was driving the red Mazda CX5 in the motor accident. CND described BSP and his brother both “going crazy” and asking why he was still driving. Their sleep deteriorated. They woke several times during the night. It made it more difficult to get them back into the vehicle and their mother had to change the positions in which they sat in the vehicle. BSP was easily upset about minor disagreements with friends or in any other situation. He would have angry outbursts. BSP stated that he could not get the image of that man out of his head and talked about wanting to put him in gaol. He became worried that the same man would cause another motor accident when his mother was driving.
CND and her sons were involved in a second motor accident on 19 December 2021. BSP’s parents had already taken the decision to change their sons to a different school, [redacted]. This was because both BSP and his brother were continuing to find it very difficult to travel past the site of the motor accident, which was on the way to school. [Redacted] was closer to home and they could avoid the accident site.
The second motor accident was a rear end collision. BSP remembers that he thought it was a minor accident but was shocked to see that the rear of their vehicle was severely damaged. BSP had a similar emotional reaction to that following the first motor accident. Ambulance and the Fire Brigade arrived at the accident scene. BSP, his brother and mother were examined at the scene but were not taken to a hospital because both boys were scared to go to hospital. CND’s cousin arrived at the scene and took the boys to his home.

CND reported that BSP had an increase in symptoms following the second motor accident. It was more difficult to get the boys to travel in the vehicle. The exacerbation of the symptoms following the second motor accident gradually improved to the level prior to seeing the driver at fault in the first motor accident. BSP remained difficult to get into the vehicle to go to school. He is anxious and hypervigilant and continues to want to avoid the site of the motor accident.
The driver at fault in the second motor accident, whose name is Julie, is a learning support officer at [redacted]. BSP found it very difficult to even see her. He felt nervous and shaky and seeing her reminded him of the second motor accident. He would ask why she was at school. CND intervened with the school and asked that BSP not be assigned to Julie as a learning support officer, with which the school concurred without requiring any explanation, beyond that it was a personal issue.

Current symptoms

BSP commenced at [redacted] in 2022. He is scheduled to enter year 6 in 2024. He is excited to be going into year 6 but also nervous because he believes that it will be more academically difficult.
BSP continues to have very similar symptoms. He still wakes at night with nightmares, feels scared and will get up and go to his mother to be comforted. He feels tired during the day and has recurrent memories of the motor accident, which can be triggered if there is a reminder of the motor accident. He remains fearful and hypervigilant and calls out to his mother while travelling in the motor vehicle. He is fearful of a further motor accident. He has continued to be “rude” in his conversation and to have angry outbursts. He avoids contact with Julie, the learning support officer at school.
CND reported that it remains difficult to get BSP ready to go to school and to enter the school grounds. He is still reluctant to get into the motor vehicle for his mother to drive him to school.
[Redacted] has a more traditional learning approach where children sit at desks and have formal lessons from the teacher. BSP has found this approach more difficult. He feels that it is more difficult to learn. It was a struggle to keep up even in 2023, his second year at the school. CND describes him as exhausted at the end of the school day. This difficulty only occurred when he commenced at [redacted].
CND reported that BSP’s academic performance in the last semester at [redacted], was okay, although he was struggling at times with memory and concentration which will be described later.

Current and proposed treatment

BSP continues to consult the physiotherapist.
BSP continues to take Sandomigran and Imigran in addition to fish oil and vitamin D each day, which have been recommended by Dr Gautam.

Mental state examination

BSP struggled to stay focused for the examination even within the first 15 minutes. He was distracted by his brother and obviously, although repeated attempts were made to ask him questions and involve him, there were periods where his mother had to answer questions.
BSP was not rude, abusive or deliberately uncooperative. His behaviour was consistent with not wanting to talk about the motor accident and the effects thereof.
BSP described experiencing recurrent intrusive images of the motor accident which could occur spontaneously or be triggered by reminders of the motor accident, especially driving past the scene of the accident.
BSP had difficulty getting to sleep, requiring his mother to lie down with him. He commonly woke from sleep either spontaneously or after a nightmare. He would have to get into his mother’s bed before he could go back to sleep. He felt tired during the day. He was reluctant to get up in the morning to get dressed and eat breakfast.
BSP was reluctant to leave home at times. He preferred not to travel in the motor vehicle and it could be difficult to get him to travel in the motor vehicle to go to school.
BSP has struggled with his concentration which was exacerbated following the change of schools from 2022 onwards. He repeatedly contacted his mother from both schools asking her to take him home because he had a headache or some other problem.

Current functioning

BSP struggles to wake up and get out of bed in the morning to go to school. CND needs to wake him about two hours before they are scheduled to leave because it takes him that long to get up, get dressed, have breakfast, pack his lunch in his bag, wash his face and brush his teeth.
Until recently, BSP was playing basketball but ceased because of pain in his neck and back. He continues to have swimming lessons which commenced when he was aged about five years. He found basketball difficult and it was a struggle to keep up, as some of the boys, although age peers, were much larger than himself.
BSP occasionally goes to birthday parties at friends’ houses and occasionally, will meet friends at a park to play. He enjoys those activities. He does not have sleepovers. He has often told his mother that he is tired and wants to go home if he goes to the park with friends.
It remains difficult to get BSP to travel in the motor vehicle. He often does not fasten his seatbelt until told explicitly to do so. He states that he “hates” to go to places. He is scared of a further motor accident and does not want to travel in a motor vehicle. He is hypervigilant, looks around him, will call out to the driver and yells at other drivers. He gets particularly scared if a vehicle is travelling too close.
BSP has had some difficulty interacting with others at school and can argue and fight with his brother. He gets on reasonably well with his maternal grandparents whom he sees frequently but he struggles with his paternal grandparents who live further away, are older and expect him to be well behaved.
BSP struggles with concentration at school and although his parents have employed a tutor, the tutor says he is vacant. He has found the new school more difficult. He has always had difficulty with mathematics which continues to the present day. BSP mostly attends school although he has had periods where he would contact his mother two or three times a week and has asked to be taken home. [redacted] tries to keep children at school so, his mother has to tell the school that he has a medical appointment to get them to allow her to take him out of school. He is currently contacting his mother by email about once every two weeks asking her to collect him.
Prior to the motor accident, BSP had no difficulties with attending school and his teacher in kindergarten felt that he was a gifted student, although he was struggling with his handwriting. This led to a referral for neuropsychometric testing. There is no report of the results of this testing in evidence but the report of Dr Gautam dated 12 July 2019 said he was assessed with a Wechsler Intelligence Scale for Children (WISC-V) assessment. BSP’s verbal comprehension was average with a composite score of 106 but his visual spatial index fluid reasoning and working memory were low. His processing speed was low. His full IQ was 76 on the fifth percentile, which was in the low average range.
As stated, BSP’s speech and language were delayed and he was severely delayed in his receptive language. His expressive language was age appropriate. CND was asked about the neuropsychometric testing results. She was advised to have BSP consult a speech pathologist and occupational therapist. She was also advised that the results were inconclusive. The speech therapist stated that his expressive language was beyond his years but his receptive language was not as good. She stated that the reported difficulties, except the difficulty with handwriting, were not apparent day-to-day at school.
CND was asked about her son’s day-to-day functioning prior to the second motor accident on 19 December 2021. She reported that it was essentially the same and all the difficulties were to the same degree. There had been an exacerbation following the second motor accident but that had gradually returned to the level prior to the second motor accident. The only difference after the second motor accident was that BSP found the educational approach at [redacted], where there was much more emphasis on traditional approaches to learning and acquiring of knowledge, to be more difficult. He struggled mentally and was exhausted at the end of the day.

Comments on consistency

BSP’s account was consistent throughout the examination and generally consistent with the documents in evidence.
CND’s account was consistent throughout the examination and generally consistent with the documents in evidence.

DIAGNOSIS AND REASONS

Medical Assessor Newlyn and Medical Assessor Friend discussed their findings after the re-examination was completed. It was agreed that BSP met the diagnostic criteria for a diagnosis of post-traumatic stress disorder as set out below.
Category A
BSP was exposed to a very frightening motor accident in which the vehicle in which he was travelling was not only hit but also spun and had a second collision. He had been very frightened and scared at the time and was later described as hysterical at the hospital.
Category B
BSP has recurrent involuntary and distressing memories of the motor accident. He has nightmares about the motor accident which continue to the present day. He becomes very distressed when travelling in a vehicle and even more so if he travels past the site of the motor accident.
He and his brother became very distressed and upset with an increase in their intensity of symptoms and sleep disturbance and nightmares for a period of time after they saw the at fault driver driving beside their vehicle in 2020 or 2021, as described above.
BSP has a similar but significantly less intense reaction when he sees Julie, the learning support officer at [redacted].
Category C
BSP tries to avoid travelling by motor vehicle and prefers to avoid the site of the motor accident.
He avoids Julie, the learning support officer at school. He generally tries not to think about the motor accident.
Category D
BSP sees travelling by motor vehicle as dangerous and he is fearful of a further motor accident. He has lost interest in previous activities and has lost his confidence. He is not as happy as he was prior to the first motor accident.
Category E
Since the first motor accident, BSP has been irritable. He has had angry outbursts at home and at school. The angry outbursts at school are not mentioned in the various school reports, suggesting that they do not cause noteworthy behavioural disturbance. He has remained hypervigilant when travelling in a motor vehicle. He had problems with concentration and difficulty falling asleep and staying asleep.
Category F
BSP’s symptoms have persisted since the time of the first motor accident on 24 June 2019.
Category G
The disturbance causes clinically significant distress and impairment in BSP’s social and school functioning as well as day to day interaction, particularly at home.
Category H
The disturbance is not attributable to the physiological effects of a substance or medication or another medical condition.

CAUSATION AND REASONS

Prior to the first motor accident, BSP was a happy and confident boy. His teacher described him as having a “posse” of boys who followed him around and that he “ruled the school”. He liked playing basketball and had the confidence to play with older boys.
Prior to the first motor accident, BSP did not have behavioural difficulties. He did not have angry outbursts and his teacher thought that he was a gifted student in kindergarten.
CND reported that her son changed after the motor accident on 24 June 2019 and has remained changed ever since.
The second motor accident on 19 December 2021 did exacerbate BSP’s symptoms but they gradually returned to the level prior to the second motor accident.
The COVID-19 school lockdowns that led to home schooling, made it more difficult to get BSP back to school and resume his usual activities after home schooling ended. CND reported that this gradually returned to the pre-lockdown level.
There was no evidence of BSP’s symptoms or any other symptoms of psychiatric disorder prior to the motor accident on 24 June 2019.
The Panel finds that the motor accident on 24 June 2019 could have caused BSP’s condition of post-traumatic stress disorder and further, the Panel finds that it did cause such condition.

PERMANENCY OF IMPAIRMENT

Permanent impairment is defined by the AMA 4 Guides as impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment. A permanent impairment is considered to be unlikely to change substantially, that is, by more than 3% WPI in the next year with or without medical treatment.[41]
[41] AMA 4 Guides at page 315 and cl 6.19 of the Guidelines.
The Panel considered the question of permanency of impairment and is satisfied that BSP’s psychiatric disorder caused by the motor accident has stabilised and is permanent within the meaning of the above definition.

DEGREE OF PERMANENT IMPAIRMENT

Psychiatric impairment rating scale

The degree of WPI of the injury caused by the motor accident is calculated in accordance with the PIRS as set out below.

Psychiatric diagnoses 1. Post Traumatic Stress Disorder.

Psychiatric treatment description Treatment by a psychologist.
Treatment with clonidine.
Treatment with a child and adolescent psychiatrist.
Treatment by a paediatrician.

Category Class Reason for Decision

1. Self-care and personal hygiene 3 Moderate impairment. BSP is currently aged 11 years and has always lived with his parents. As such, he has always required some supervision but now it is very difficult to get him out of bed in the morning. He needs to be constantly reminded to get dressed. It is difficult to get him into a shower whereas, prior to the motor accident he got into the shower and liked to have a shower and then a bath.
It is a struggle to get him dressed. It takes about two hours to get him ready for school prior to leaving.
It is even difficult at times to get him to eat, which was not a problem after he had his tonsillectomy and adenoidectomy.

2. Social and recreational activities 2 Mild impairment. BSP resumed playing basketball until he ceased because of the pain. He continues to swim even though there is some physical difficulty. He occasionally does see friends at the local park and attends occasional birthday parties although he will sometimes want to come home early.

3. Travel 3 Moderate impairment. BSP would prefer not to travel away from home. He does travel in a motor vehicle but is hypervigilant and scared and calls out to the driver. He avoids, if possible, travelling past the site of the motor accident.
He remains scared of a further motor accident.

4. Social functioning 2 Mild impairment. BSP’s relationship with his brother and his paternal grandparents is strained. He has a good relationship with his maternal grandparents who are more tolerant. He does have angry outbursts at home and can fight with his brother. He is described as rude at school but he is not getting into fights and has not been suspended from school. The various school reports do not make any untoward comments about his behaviour.

5. Concentration, persistence and pace 2 Mild impairment. BSP remains at school and is enrolled full time at school. He struggled to stay focused and concentrate, even prior to changing schools. This became more difficult during COVID-19 pandemic lockdowns. School reports and his mother report that he was continuing to try at school.
Concentration and learning became more difficult after changing schools because of the different learning environment which is not caused by the motor accident.

6. Adaptation 2 Mild impairment. BSP has continued to attend school. He attends most days and currently is asking to be taken out of school one day every two weeks.
He has progressed through the years at school and will be entering year 6 in 2024.
He has not been suspended from school.
His behaviour, at times, is described as rude but he continues to try at school although he finds it more tiring at his current school.

List classes in ascending order: 2, 2, 2, 2, 3, 3

Median Class Value: 2

Aggregate Score: 14

Whole Person Impairment: 7%

Apportionment

The Panel considered that there was no need to do a pre-existing impairment apportionment. There was no evidence of BSP’s symptoms or any other symptoms of psychiatric disorder prior to the motor accident on 24 June 2019.
The Panel considered that there was no need to do an impairment apportionment in respect of the motor accident on 19 December 2021. CND stated that BSP’s symptoms and changes in behaviour following the second motor accident did increase but gradually reduced to the pre-second accident level.

Adjustment for the effects of treatment

The Panel did not make any allowance for the effects of treatment.
There was little or no evidence that the clonidine or the various psychological interventions had led to any change in BSP’s trauma-related symptoms and behaviour.

Assessment of permanent impairment

The Panel assesses BSP’s permanent impairment as follows:
(a)    current WPI: 7%;
(b)    apportionment: 0%, and
(c)    WPI adjustments for the effects of treatment: 0%.
Accordingly, the Panel assesses BSP’s final WPI as 7%.

FINDINGS

The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[42] and Insurance Australia Ltd v Marsh.[43]
[42] Insurance Australia Group Ltd v Keen [2021] NSWCA 287 at [40], [41] and [45].
[43] Insurance Australia Ltd v Marsh [2022] NSWCA 31 at [11], [21], [64].
The Panel adopts the re-examination findings and conclusions of Medical Assessor Newlyn and Medical Assessor Friend based on their examination and specific findings pertaining to diagnosis, causation and assessment of permanent impairment.
The Panel determines that BSP sustained a post-traumatic stress disorder caused by the motor accident on 24 June 2019.
The Panel determines that BSP’s psychiatric disorder caused by the motor accident has stabilised and is permanent.
The Panel determines that there are no pre-existing impairments requiring an apportionment of impairment.
The Panel determines that there is no permanent impairment in respect of the second motor accident on 19 December 2021 requiring an apportionment of impairment.
The Panel determines that there is no allowance to be made for the effects of treatment.
The Panel determines that the post-traumatic stress disorder caused by the motor accident gives rise to a WPI which is not greater than 10%, that is, 7%.

CONCLUSION

The Panel’s determination is set out in the Certificate of Determination attached to this Statement of Reasons.

Psychiatric diagnoses	1. Post Traumatic Stress Disorder.
Psychiatric treatment description	Treatment by a psychologist. Treatment with clonidine. Treatment with a child and adolescent psychiatrist. Treatment by a paediatrician.

Category	Class	Reason for Decision
1. Self-care and personal hygiene	3	Moderate impairment. BSP is currently aged 11 years and has always lived with his parents. As such, he has always required some supervision but now it is very difficult to get him out of bed in the morning. He needs to be constantly reminded to get dressed. It is difficult to get him into a shower whereas, prior to the motor accident he got into the shower and liked to have a shower and then a bath. It is a struggle to get him dressed. It takes about two hours to get him ready for school prior to leaving. It is even difficult at times to get him to eat, which was not a problem after he had his tonsillectomy and adenoidectomy.
2. Social and recreational activities	2	Mild impairment. BSP resumed playing basketball until he ceased because of the pain. He continues to swim even though there is some physical difficulty. He occasionally does see friends at the local park and attends occasional birthday parties although he will sometimes want to come home early.
3. Travel	3	Moderate impairment. BSP would prefer not to travel away from home. He does travel in a motor vehicle but is hypervigilant and scared and calls out to the driver. He avoids, if possible, travelling past the site of the motor accident. He remains scared of a further motor accident.
4. Social functioning	2	Mild impairment. BSP’s relationship with his brother and his paternal grandparents is strained. He has a good relationship with his maternal grandparents who are more tolerant. He does have angry outbursts at home and can fight with his brother. He is described as rude at school but he is not getting into fights and has not been suspended from school. The various school reports do not make any untoward comments about his behaviour.
5. Concentration, persistence and pace	2	Mild impairment. BSP remains at school and is enrolled full time at school. He struggled to stay focused and concentrate, even prior to changing schools. This became more difficult during COVID-19 pandemic lockdowns. School reports and his mother report that he was continuing to try at school. Concentration and learning became more difficult after changing schools because of the different learning environment which is not caused by the motor accident.
6. Adaptation	2	Mild impairment. BSP has continued to attend school. He attends most days and currently is asking to be taken out of school one day every two weeks. He has progressed through the years at school and will be entering year 6 in 2024. He has not been suspended from school. His behaviour, at times, is described as rude but he continues to try at school although he finds it more tiring at his current school.
List classes in ascending order: 2, 2, 2, 2, 3, 3
Median Class Value: 2
Aggregate Score: 14
Whole Person Impairment: 7%

[2024] NSWPICMP 344

28 May 2024