Allianz Australia Insurance Limited v Webb
[2025] NSWPICMP 258
•14 April 2025
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Allianz Australia Insurance Limited v Webb [2025] NSWPICMP 258 |
CLAIMANT: | Douglas Webb |
INSURER: | Allianz Australia Insurance Limited |
REVIEW PANEL | |
MEMBER: | Jeremy Lum |
MEDICAL ASSESSOR: | Christopher Canaris |
MEDICAL ASSESSOR: | Matthew Jones |
DATE OF DECISION: | 14 April 2025 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury; attempted carjacking; incident involved elements of a motor accident and criminal assault; Review Panel treated the motor accident and the assault as a single incident constituting the “motor accident” and without attempting to define the scope of the motor accident; AAI Limited v State Insurance Regulatory Authority of NSW, and Allianz Insurance Limited v Bell cited; Held – Review Panel found the motor accident caused the claimant’s PTSD and alcohol use disorder which are not threshold injuries; MAC confirmed. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Review Panel assessment of threshold injury Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017 1. The Review Panel confirms the certificate of Medical Assessor Abhishek Nagesh dated (a) The following injuries were caused by the motor accident: (i) post-traumatic stress disorder, and (ii) alcohol use disorder. (b) The above injuries are NOT threshold injuries for the purposes of the Motor Accident Injuries Act 2017. |
STATEMENT OF REASONS
BACKGROUND
Douglas Webb (the claimant) was involved in a motor accident on 23 December 2018. He says he was at a car wash and had exited his vehicle while leaving the engine on. His partner and her young child were inside the vehicle. While he was washing the car, a male person attempted to hijack the vehicle. The claimant intervened and while the car was in motion, managed to remove the person from his vehicle. The claimant says he and his partner suffered needlestick injuries and psychological injuries as a result of the motor accident.
Following the motor accident, the claimant says he suffered post-traumatic stress disorder. He made a claim for statutory benefits with Allianz (the insurer), the third-party insurer of the vehicle.
A medical dispute arose about whether the claimant’s psychiatric injury caused by the motor accident is a threshold or not a threshold injury. The medical dispute was referred to the Personal Injury Commission (Commission) for medical assessment.
On 12 December 2023, Medical Assessor Abhishek Nagesh diagnosed the claimant’s psychiatric injury as post-traumatic stress disorder. This was found to be caused by the motor accident and was not a threshold injury.
The insurer lodged an application with the Commission seeking a review of the medical assessment. This was allowed by the President’s delegate and this Panel was convened to conduct the review.
RELEVANT LEGISLATION
Threshold injury
Under the Motor Accident Injuries Act 2017 (the MAI Act), there is a scheme for statutory benefits (under Part 3) for persons injured in motor accidents in New South Wales. Such benefits can include treatment and care and weekly payments.
For injured persons who have “threshold injuries”, they cannot receive statutory benefits beyond 52 weeks after the accident and cannot recover damages.[1]
[1] The terminology for accidents that occurred before 1 April 2023 (such as the present) was “minor” injury and statutory benefits were only paid for up to 26 weeks.
Version 9.3 of the Motor Accident Guidelines (Guidelines), effective from 6 December 2024, applies to the review. Part 5 deals with the assessment of threshold injury for psychiatric injuries.
The general provisions for medical assessment are contained in cl 5.6 of the Guidelines and are in the following terms:
“5.6 The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Specifically, in relation to threshold psychological or psychiatric injury assessments, cls 5.10-5.12 provide as follows:
“5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR), published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”
Causation of injury
It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychological or psychiatric condition. The provisions regarding causation of injury are contained in cls 6.5 to 6.7 of the Guidelines and apply to both permanent impairment and threshold injury disputes. [2]
[2] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372 per Wright J at [35].
The provisions state:
“6.5 An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6 Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
Causation means that a physical, chemical or biological 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 the 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.
6.7 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.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.
MEDICAL ASSESSMENT UNDER REVIEW
Medical Assessor Nagesh
Medical Assessor Nagesh was asked to assess whether the claimant suffered from post-traumatic stress disorder as a result of the motor accident of 23 December 2018.
In the pre-accident history, the claimant is stated as a 32-year-old father of two young children and was engaged to his partner. He was independent in his self-care, enjoyed hobbies, had an active social life, was independent in his travel and worked full-time as a truck driver. There was no history of mental illness or personal injury claims.
The history of the motor accident on 23 February 2018 is recorded as follows:
“Mr Webb reports that on 23 February 2018 he was at a carwash in Casino with his partner and his young son. He was washing the back wheel while his partner and son were seated in the car. A stranger suddenly arrived, walked up to his car and tried to hijack his car. The stranger threatened his partner, assaulted his partner, and then tried to push her out of the car. Mr Webb reports that he heard his partner screaming as he ran over. The stranger tried to steal his car by driving and his partner at the time pulled the handbrake. Mr Webb reports that he held the intruder by the neck, restrained him and was involved in a tussle where Mr Webb was assaulted physically. There were scratches on his arm. The intruder escaped and ran away. They had to call the police.
He noticed that the stranger had needle marks on his arm and when they did search the car, they found a syringe from which he had received the scratch marks. Police were called and they filed a police complaint. Because of the needle stick injuries, Mr Webb reports having gone to the hospital from where he was transported to Lismore Base Hospital. He had to undergo a physical examination and a series of blood tests which later came back clean.”
Since the incident, the claimant reported having nightmares and flashbacks. He avoided driving, was anxious around his children, was irritable, his concentration was diminished and he became hypervigilant. He was reliant on alcohol to manage his anxiety and to help him sleep. He could not hold onto a job and had lost around 10 jobs in the last five years.
Medical Assessor Nagesh found the claimant as meeting the diagnostic criteria of post-traumatic stress disorder under the DSM-5. This was caused by the motor accident as the claimant was exposed to a severely traumatic carjacking incident where he and his family were exposed to death and threatened by death. The Medical Assessor referred to the legislative definition of threshold injury and concluded that the post-traumatic stress disorder was not a threshold injury.
ISSUES FOR DETERMINATION
Insurer’s submissions
The insurer relies on the findings of the report of Dr Newlyn dated 6 December 2022 which the insurer says was obtained on a joint basis by the parties. Dr Newlyn had diagnosed an adjustment disorder following the motor accident which had since resolved. Dr Newlyn also diagnosed an alcohol use disorder that was not causally related to the motor accident.
The insurer asserts inconsistencies in the claimant’s presentation to Medical Assessor Nagesh, Dr Whetton and Dr Newlyn. Specifically, in respect of:
· the claimant did not report to Dr Whetton the extent of his alcohol usage as reported to Dr Newlyn;
·
the claimant attributed daily disabilities to the accident when described to
Dr Whetton that was described differently to Dr Newlyn;
· the claimant’s inability to undertake recreational activities is attributed to anxiety when reported to Dr Whetton as opposed to the financial issues recorded by Dr Newlyn, and
·
the claimant reported no issue as to concentration to Dr Newlyn whereas
Dr Whetton reported a moderate impairment in this regard.
It was these alleged inconsistencies in the history contained in the reports and the failure to refer to Dr Newlyn’s report that form the basis of the insurer’s review application.
Claimant’s submissions
The claimant states that he suffers from post-traumatic stress disorder, a non-threshold injury, which was diagnosed in the following documents:
· Mental Health Treatment Plan by treating general practitioner (GP) Dr Kumar dated 5 February 2019;
· consultation note by treating psychologist, Dr Davies dated 22 March 2022, and
· report of Dr Peter Whetton, psychiatrist, dated 7 December 2022.
With respect to the insurer’s arguments on review, the claimant says a Medical Assessor is not required to address every opinion put before them – Wehbe v Insurance Australia Ltd t/as NRMA Insurance.[3]
[3] [2015] NSWSC 1506.
The claimant says the Medical Assessor confirmed the claimant’s self-reported symptoms by reference to the external medical reports which were available to him. In any event, the Medical Assessor is not required to state why he did not come to the same conclusion of
Dr Newlyn as the Medical Assessor “can be as discriminating as to the material that he or she considered significant” – Rahman v Insurance Australia Ltd t/as NRMA.[4]
[4] [2022] NSWSC 1079.
The claimant submits that the Medical Assessor has considered the totality of the relevant evidence and has used clinical skill and judgement in concluding that the claimant sustained psychiatric in the form of post-traumatic stress disorder as a result of the motor accident.
REVIEW OF DOCUMENTATION
The Panel issued Directions for the parties to provide indexed and paginated bundles of the information they relied upon. Both parties duly responded with the insurer’s bundle comprising of pages 1-23 and the claimant’s 1-124.
At the preliminary conference on 18 February 2025, the Panel determined that it required additional information in the form of the claimant’s up-to-date GP records including those of Dr Richard Davies and Dr Devendra Kumar. The Panel also required access to the CCTV footage of the motor accident, if available.
A further Direction was issued and the insurer was given four weeks (by 19 March 2025) to obtain the information. The information was not provided by the due date. The insurer sent a message on the Commission Portal dated 20 Match 2025 stating that they are continuing to chase the clinical records of the GPs, Dr Davies and Dr Kumar. A Direction for Production was issued to NSW Police for the CCTV footage with a return date of 21 March 2025.
On the day of the second teleconference (9 April 2025), the Panel again checked whether the records or CCTV footage had been received. They had not. While it would have been desirable to have the information, the Panel was cognisant of the objects of the MAI Act, which include the just, quick and fair resolution of the real issues in dispute. This was indicated in the further Direction. The Panel did not consider the documentation to be of critical relevance to the issues to be determined and decided to proceed with the Panel determination without the documentation.
The Panel has read the available documentation with a summary of the material relevant to the issues in dispute provided in the Panel re-examination report below.
PANEL RE-EXAMINATION
At the preliminary conference, the Panel determined that a re-examination of the claimant was required. Below is the Panel re-examination report of Medical Assessors Canaris and Jones:
Douglas Webb – DOA – 23 December 2018 – age 34 years
Personal history
The claimant is a 33-year-old labourer who was formerly engaged to be married.
He was “very well before the accident – I didn’t have a drinking problem anyway”. He did not drink alcohol saying, “I was off it for four years – I was training in the gym”. Before he started training, he consumed “probably two drinks a month… just on special occasions really”.
He used to smoke, but now vapes. He does not use drugs (“I tried weed once”). He does not gamble.
He denied any history of problems with the law “until recently”. He had an incident in which he “grabbed a bloke by the hair – he looked like a typical junky… they ended up tasering me… that was about two years ago”.
He had no other claims history.
He knew of no family history of psychiatric illness.
He had been otherwise medically well apart from “low iron and high cholesterol at the moment”.
He knew of no family history of psychiatric illness. The Panel noted that he had told Dr Newlyn, IME psychiatrist, that his father was a pensioner but that he did not know the nature of his disability.
He is one of seven children growing up on a large property on the Northern Rivers which belong to his grandfather. He is the second youngest of his children. His father worked on the property (he had told Dr Newlyn that his father was a pensioner). His mother worked at a school. He described his childhood as “awesome – yabbies – creeks – motorbikes – we had a black and white TV for 13 years… water was pumped from the creek… I’d love to give my kids that”.
He finished school when his parents broke up – he was 15 years old at the time. His parents “just grew out of love” – they seem to get on well until they had an argument leading to the breakup of their marriage. He went up to Brisbane with his mother where he started in year 11 having completed year nine in NSW. He did not complete year 11. He then went into the workforce into his uncle’s concrete pumping business. He has always worked as a labourer. His longest stint was in WA on a fly-in fly-out basis until he had “a falling out” and got king hit – he had gone there about two and a half years ago after the breakup if his relationship with his partner. During his time in WA, he “had days off because of drinking and I was going to get the sack, and I got rolled by these guys outside a pub – I ended up with eight stitches near my eye and a fractured cheekbone”.
He had been around eight years with his fiancée. She had worked in a café and had been a stay-at-home mum after she fell pregnant with Hunter some three months after he met her. He has a four-year-old daughter Liliana, and a son Hunter aged seven years. He gets the children every second weekend. He says his ex-partner is not in a good space and blames him for the incident. She had been on antidepressants.
He now lives with two women previously unknown to him – a mother and daughter – and gets on reasonably with them (“I stick to my room mostly”).
He has been eight months with his current partner who “works for the government – transport and main roads” in an office. He met her while living in Airlie.
History of accident
On the day in question (23 December 2018), he had gone to a car wash. He left the engine on because it was a hot day. He was cleaning the back of the vehicle. His two-year-old son and partner were in the car. He heard screaming and saw that someone had jumped into the driver’s seat. He jumped into the car on the front seat passenger side pinning the other driver down. There was a great deal of commotion. He recalled his partner pulling up the hand brake. The car may have been briefly in motion – the offender “drove a little bit but my partner pulled the handbrake”.
He was in the car as it moved forward. He had his hand on the gear stick and his right arm over the man’s throat.
He said, “We all hopped out at the end – it was quite traumatic – she [his fiancée] was crying – I was shaking… we had all these cuts… her legs – my arms – scuff marks – scratches…”. The offender got out of the car and made his escape, by getting in his van and driving over a flower bed towards the car wash exit.
Symptoms
He said, “It’s hard to go out in public anymore – even sitting here talking to you guys, my heart keeps pumping – it’s making me sick – I can barely go to the shops – when I get my kids on the weekend, I get real anxious – specially parks and stuff… I’m constantly locking my car – my door – I still struggle with sleep – nightmares… just weird ones like me losing the kids… or losing Lili [his daughter Liliana] – like Lili getting stolen from a party…”.
He said, “I wasn’t getting a good sleep, so I started drinking to calm the nerves – I started drinking more and more… I drank half a bottle of vodka last night – I was doing 12 beers a night – it all depends on if I've had a big day”.
He said he did “not really” get shakes or sweats. I asked why he drank. He said, “I don’t believe in depression, but I reckon I've got something – I lost my family – my kids – I’m paying so much in child support – it’s a band aid – I hope it’s not a forever thing”.
There was evidence of tolerance.
He admits to memory blackouts when he gets very drunk saying, “The only time I get a decent sleep is when I’m paralytic drunk”.
He said, “I started drinking nine months after the accident”. He had “started taking sleeping tablets but I was just drained at work”. He started “having four or five a night” but now drinks every day. The Panel noted evidence in the documentation that he had been using doxylamine, a sedating antihistamine before his drinking escalated.
He did see a psychologist once but “I just couldn’t afford it – I struggled talking about it – I’m struggling talking to you now… I’d love to go and get help, but all my funds were going into bills and rent – I was supporting her at the time… it’s easy to bottle things up”.
He has “not really” tried to do anything about his drinking other than to “try slowing down a bit”.
He does not have a regular GP. Antidepressants have been suggested but he is “not a pill taker” and “I don’t want another band aid solution”. He has tried yoga classes and herbal teas.
No one has suggested drug and alcohol counselling. However, he acknowledged that “it wouldn’t be a bad idea”.
Mental State Examination
The Panel assessed the claimant via Microsoft Teams. A good audiovisual connection was established. He was at home in MacKay. He indicated that he was on his own. His head and shoulders were visible. He presented as a man of appearance consistent with his stated age with short reddish-brown hair and beard. He was casually attired with tattoos visible on his arms and as best as could be discerned on video, not unkempt. He provided the history documented above. His narrative was coherent and consistent. His frustration with his situation was all too palpable in relation to which, he said towards the end, “I just want some closure – I hate these assessments – I just go on a mad drinking rampage afterwards”. His affect was restricted with reduced warmth and reactivity. There was no evidence of psychosis or cognitive impairment.
Current functioning
He works a couple of days a week labouring. He said, “I have people at work that trigger me – I've been to so many jobs… you get that odd person who’s an absolute wanker… I just go quiet, and I end up shutting down and I walk off site and I find another job”. He had worked with a labour hire company. He is “sad most of the time” and has not felt up to working longer hours.
He said he would usually shut down but of late has started to get angrier and he has got into a few fights, though not at work. He had an incident “a couple of years ago” after being told to leave a premises which he refused to do. Police were called and he started to yell at them because “they weren’t talking to me respectfully”. He was arrested and charged with being a public nuisance – he was intoxicated at the time.
He spends his days at home watching TV, though when he has his children with him might take them to the shops. However, it would be a very brief visit when there are fewer people around, as he is “always stressing about the safety of the kids” saying, “I almost lost my son”.
He finds it “a battle every day” because “I built a whole foundation around my family… I had a good mining job – I was happy, healthy, fit – earning good money – she [his partner] was happy, healthy, fit – we had savings…”.
Since the incident, “I can’t focus – I’m just stressing – even just cooking for the kids – someone walks close to my car and I’m immediately locking it – it’s just draining… when I was with her, I had to be the strong one – I had to be the man – the provider…”.
The relationship with his partner broke up about two and a half years ago “because we were fighting – she was on edge – I was on edge – we just sat at home doing nothing”. He “was always out the back drinking and not being supportive”. His ex-partner now lives near Airlie Beach. He has a “sort of” partner but “it’s complicated” and “up and down” and “we broke up about three weeks ago”. He said, “My drinking’s definitely got a big play in it”.
His drinking has led to a lot of arguments and there is “jealousy stuff” with his current partner because he is still in contact with his former partner as he is trying to coparent.
He is “always looking out for danger – Mackay is not the best place to live – there’s lots of junkies and thieves – I see anyone that looks like they’re on drugs, I get scared… it’s just a feeling I get”.
I asked what aspect of the incident had impacted him. He said, “Just the thought that I could have lost my partner and kids… he had his hands on the gear stick… in the scuffle, we had all these marks on us and there was a syringe… also the four months of waiting to see if we had any diseases as well…”.
He would relive the incident “every time I gotta talk with guys like you – I just remember the bloke – he had no front teeth – I get nightmares where I have no teeth…”.
He is “constantly on edge” and “flat stick”.
He would shower after work but would otherwise “barely shower”. He could easily go four days without a shower. He might brush his teeth “twice a week”. His weight has remained steady at 80 kg “but it was fluctuating there for a while – I’m the lightest I've been this year which is 80”. He gets HelloFresh delivered once a week and mostly gets his alcohol delivered by Uber Eats.
He rarely goes out socially “because it’s too much… I’m never enjoying myself – I didn’t have many friends – I came here to work”. He has not been out in the last three months. He does his drinking at home – he would “sit inside and just watch a movie”.
He would usually not drive – his housemate would usually drive “but when I have the kids, I have no choice – when I do drive, I’m always stressed – I've had close calls because I’m not focusing on the road”.
His circle of friends had “definitely” narrowed “and I just don’t like people – everyone has a stupid opinion, and I just can’t deal with it”.
His concentration is “bad” and “I can’t sit down and read a book or finish a movie… when I go to do a load of washing, I do half of it and then I go clean the shed or something… I’m doing circles around the house”. He might watch a movie for around half an hour and finds he is not taking it in and has to keep rewinding.
Consistency
There was no inconsistency. The claimant was forthright with his alcohol consumption and it was plausible for his psychological symptoms to have an effect on concentration, social networks, relationships and his activities of daily living as described by the claimant.
Documents
The Panel noted the certificate of Assessor Abhishek Nagesh dated 12 December 2023. Assessor Nagesh determined that the claimant suffered from posttraumatic stress disorder which was not a threshold injury for the purposes of the Act. Assessor Nagesh took a history of the carjacking incident, noted the emergence of anxiety and ruminative thinking over the incident, and his feeling unsafe, and his increasing worries that anything could happen at any time could go wrong at any time. He documented hypervigilance, irritability, loss of concentration, nightmares, flashbacks, and avoidance of driving for eight months following the incident. He lost interest in hobbies. He became depressed. Because of his insomnia, anxiety, and nightmares, he became heavily reliant on alcohol to help him sleep consuming up to 10 pints of beer every night. He took extended leave from work losing his job and has subsequently been in 10 different jobs which he had apparently lost because of his symptoms. He was noted to have seen a psychologist only the once because he could not afford further treatment. Assessor Nagesh noted a subsequent incident four months prior to his assessment in which he was assaulted by stranger while in the Northern Territory suffering a broken cheekbone, all of which made his PTSD symptoms worse. He was socially withdrawn, neglected self-care, and was anxious in crowds. He could not drive, had limited capacity for travel, and had poor concentration. His marriage has broken up and at the time of the assessment was effectively homeless.
The Panel noted the application for personal injury benefits in which he states that he “exited my Ford Ranger, while watching it, leaving the engine on with keys, at a Car Wash. The Defendant then attempted to take the vehicle with my partner Ms Laycock. I intervened and while the car was in motion managed to remove the defendant from my vehicle, suffering injuries as a result”. He listed his injuries as “Shock, needlestick injuries, psychological injuries”.
The Panel noted the notes of Kyogle Hospital dated 25 December 2018 which document his presentation with a needlestick injury, the conclusion that Preexposure Prophylaxis (PEP) was unlikely to be effective and that the risk of HIV was low. However, he would need follow-up blood tests for hepatitis B, hepatitis C, and HIV. The Panel also noted a presentation to Lismore Base Hospital on 25 December 2018 for an injection of hepatitis B immunoglobulin. Liver function tests collected on that date were normal consistent with the absence of problematic drinking up until that time.
The Panel noted the clinical notes of Sonic HealthPlus – Moranbah as printed on 8 July 2019. There are references to posttraumatic stress and anxiety in February 2019 related to the attempted carjacking and to a mental health plan. A blood test collected on 21 January 2019 yielded normal liver function tests as did further pathology on 15 February 2019. A full blood count collected on 15 February 2019 was also normal. These results are consistent with but not confirmatory of the absence of significant problematic drinking before the incident in question.
The Panel noted the clinical notes of Cannonvale Medical Centre as printed on 30 January 2023. He is noted to be drinking six drinks per day two days per week and to have previously been a “heavy” drinker. An entry on 22 March 2022 documents a presentation for “PTSD”, “Alcohol overuse” and a mental health care plan. There is a list of symptoms comprising poor sleep, early morning wakening, depressed mood, anxiety, and stress at work as well as substance abuse – this appears to be a pre-populated list. His GP recommended gradual reduction in his drinking by 2 beers per day per week. A consultation on 6 September 2022 notes that he had not engaged with a mental health care plan and states that he had gradually reduced his drinking at home. Again, a pre-populated list includes symptoms such as poor sleep, low self-esteem, depressed mood, anxiety, irritability, and stress at work. Other entries relate to unrelated physical problems
The Panel noted the claimant’s statement dated 9 June 2023 and noted that its contents are traversed in other reports. However, it seems that at some point in the scuffle with the offender, he sustained a scratch to his arm presumably from a needle as a needle and syringe were subsequently found inside the car.
The Panel noted the claimant’s witness statement provided to police in February 2019. It also noted a statement from David Noble dated 19 March 2019 which states that footage of the carjacking incident was provided to police. There was also a statement dated February 2019 from the claimant’s partner, Shannon Laycock dated 24 December 2018 describing the incident.
The Panel noted a GP mental health treatment plan drawn up was within a fortnight of the carjacking incident providing a diagnosis of “PTSD”. This was associated with a K10 assessment which generated elevated scores in all categories. The Panel also noted a clinical note of his GP dated 22 March 2022 which notes “Alcohol overuse” and “PTSD”.
The Panel noted a denial of liability by the insurer dated 15 March 2022. The notice contended that the claimant’s needlestick injury had occurred as part of an altercation before the movement of the vehicle. Hence any injury arising from this was the result of criminal conduct and not the use or operation of the motor vehicle. It further contended that there was no evidence that his psychological injuries were non-minor relying on the report of Dr Thomas Newlyn, IME psychiatrist, on 6 December 2022.
The Panel noted the assessment of Dr Peter Whetton, IME psychiatrist, dated 7 December 2022. Dr Whetton documented his anxiety, panic attacks, poor concentration, his concern for his partner and the safety of their children, disturbed sleep, anxiety driving, and his increased drinking predominantly when he was away from his family working, where he would drink up to 10 drinks a night. He noted that he had separated from his wife on a couple of occasions because they had been fighting. Dr Whetton made a diagnosis of posttraumatic stress disorder and assessed him with 7% whole person impairment with no deduction for pre-existing impairment or adjustment for treatment effects. He assessed him at class I for self-care and personal hygiene, Class 2 for travel, social functioning, and employability (adaptation), and Class 3 for social and recreational activities and concentration, persistence, and pace.
Dr Whetton re-examined the claimant on 7 September 2023. He notes continuing nightmares, flashbacks, and hypervigilance. He noted that he would drink approximately five cans of beer per night and nine cans per night when working away from home, with no alcohol-free days except at times when he was around his children. He noticed the emergence of “jitters” when he stopped drinking indicating alcohol dependence. He reiterated the diagnosis of posttraumatic stress disorder. Dr Whetton also commented on the insurer’s declinature of treatment with a psychologist, the need for which he considered to be causally related to the accident and reasonable and necessary in the circumstances.
The Panel noted the report of Dr Andrew Porteous, IME occupational physician, dated 14 April 2023. Dr Porteous took a history of psychological symptoms and noted that he drank 10 to 12 cans of beer daily. He found no ongoing physical injuries or restrictions but declined to comment on his psychological state or his drinking, stating that it was more the province of a psychiatrist.
The Panel noted the report of Dr Thomas Newlyn, IME psychiatrist, dated 6 December 2022. Dr Newlyn notes that he had to look after his partner after the incident and so lost his job. He said he was “depressed from losing my dream job”. He and his partner fought a lot with the repeated breakups. He found other work and subsequently lived in Mackay where he was “not coping”, having started to take tablets to sleep and to drink in the afternoon. His partner also miscarried, and he had to take time off work. He had been drinking heavily for about a year and even more heavily about a month and a half prior to seeing Dr Newlyn and was now “constantly drinking”. He had also worked for a year with “an abusive alcoholic boss”. Dr Newlyn diagnosed alcohol use disorder. He considered that following the incident, he developed an adjustment disorder with anxiety and considered that he did not meet criteria for the diagnosis of posttraumatic stress disorder. Dr Newlyn noted family problems because of his partner’s distress and that he had stayed home to support and care for her. Later, he found it very stressful working away from home after caring for his family for eight months and he developed an alcohol use disorder which he considered was unrelated to the incident. Dr Newlyn considered that his adjustment disorder had resolved giving rise to no permanent impairment, while noting this to be a minor injury for the purposes of the Act.
FINDINGS
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 and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[5]
[5] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[6]
[6] Section 7.26(7) of the MAI Act.
The Panel refers to the above re-examination report of Medical Assessors Canaris and Jones and adopts the findings in their entirety. The Panel reconvened on 9 April 2025 and discussed the re-examination report findings before collectively making the below determinations.
Diagnosis and reasons
The claimant’s presentation is consistent first with a diagnosis of alcohol use disorder. In terms of DSM-5-TR criteria, the Panel noted the presence of a problematic pattern of alcohol use leading to clinically significant impairment and distress manifest in alcohol being taken in larger amounts or over a longer period than intended, unsuccessful efforts to cut down or control alcohol use, tolerance, and persisting drinking despite knowledge of psychosocial harms caused by his drinking – in short, at least four of the 11 criteria specified by the manual, of which only two are required, over a 12 month period.
The claimant’s alcohol use disorder is underpinned by significant trauma-related symptoms. In terms of DSM-5-TR criteria, the incident as described was undoubtedly traumatic in that he understandably perceived danger to the safety of his partner and child (Criterion A). There is evidence of intrusive and distressing recall of the traumatic event (Criterion B), persistent avoidance of crowds and situations he perceives as dangerous (Criterion C), a persistent negative emotional state manifest in continuing anxiety, particularly in relation to his family, social withdrawal, and low mood (Criterion D), with heightened arousal manifest in irritability, insomnia, and loss of concentration (Criterion E). His symptoms have been present now for a period of years (Criterion F), cause him clinically significant distress with evidence of psychosocial impairment (Criterion G), and were not attributable to the physiological effects of a substance or to another medical condition (Criterion H).
In relation to Criterion H, the Panel noted his heavy drinking but also noted that this seemed driven by his need to manage symptoms of his post-traumatic stress disorder and that he reported particularly heavy drinking following situations such as the current assessment.
The Panel was therefore satisfied that the claimant also met the DSM-5-TR criteria for post-traumatic stress disorder. This was consistent with Medical Assessor Nagesh and
Dr Whetton. The Panel did not agree with Dr Newlyn’s diagnosis of adjustment disorder now resolved.
Causation and reasons
The Panel considered the claimant’s alcohol use disorder as very much a consequence of his post-traumatic stress disorder. He drank sparingly before the event and began to drink heavily some months afterwards after trying to manage his insomnia with over-the-counter medication.
A question arose as to whether the claimant’s post-traumatic stress disorder and subsequent alcohol use disorder arose as a consequence of a motor vehicle accident.
The Panel noted the insurer’s denial of liability notice[7] dated 15 March 2022 included the following reasons as to why the decision was made:
“● The alleged needle stick injuries are not related to the subject motor vehicle accident. Your version of events as provided to NSW Police, supports that the altercation occurred prior to the movement of the vehicle. Therefore this is a result of criminal conduct and not during the use or operation of a motor vehicle.
· Based on the current evidence there is no indication that the psychological injuries meet the severity to be classed as non-minor, in accordance with the Motor Accident Guidelines definitions of psychiatric injuries. We consider that any injuries sustained were as a result of both the criminal conduct and as a result of the use or operation of a motor vehicle.”
[7] Claimant’s bundle page 104.
The Panel noted that the above insurer’s denial of liability notice is the only piece of evidence to allege the carjacking incident did not constitute a “motor accident”. The parties’ submissions make no reference to the carjacking incident being not a “motor accident” as defined under s 1.4 of the MAI Act.
The notice is also somewhat ambiguous in that the insurer, in the second dot point, appears to concede that the claimant’s psychiatric injuries were sustained as a result of both the criminal conduct of the assailant and the use or operation of a motor vehicle. In this respect, the Panel noted that the test for causation in medical assessments only require the motor accident to be a contributing cause, which is more than negligible.
The incident in question comprised of an attempted carjacking. The claimant had jumped into a car having seen the offender get into the vehicle containing his fiancée and their child. A scuffle ensued. During this time, the car may have gone briefly forward, but was prevented from going further because the claimant’s fiancée had pulled up the handbrake. The claimant’s subsequent symptoms relate to his perception that his family was in danger and his ongoing concerns for their safety, with an element of aggravation from his wife’s trauma response as well as understandable concerns that he may have sustained a serious infection from a needlestick injury. While he is an anxious driver, this arises because his concentration is poor, and he has consequently had close calls. His symptoms are thus specific to the attempted carjacking and his scuffle with the driver, rather than to events pertaining to the operation of the vehicle. While his vehicle was briefly driven forward, this was a minor and incidental component of this unfortunate incident.
The Panel, however, was cognisant of AAI Limited v State Insurance Regulatory Authority of New South Wales (AAI Limited)[8] which was recently applied by Lonergan J in Allianz Australia Insurance Limited v Bell (Bell).[9]
[8] [2016] NSWCA 368.
[9] [2024] NSWSC 1351.
In AAI Limited, the Court of Appeal held:
“If, however, in a matter referred to a medical assessor, it is apparent that doubt about whether an incident falls within the statutory definition exists, the medical assessor should make findings about causation by reference to the physical event or events, and leave it to the court to determine whether or not the events constitute a ‘motor accident’.”
Although AAI Limited and Bell were decided before the legislative requirement for a Member to be present on the Panel,[10] the Panel’s function under s 7.26 of the MAI Act has largely remained unchanged.
[10] Before the 1 March 2021 amendments.
As illustrated above, the Panel expressed doubt as to whether the attempted carjacking incident constituted a “motor accident”. However, in light of the above authorities, the Panel concluded it was not its role to define the scope of the motor accident – what it covered and what it did not. There were also no submissions from the insurer or claimant that the carjacking incident did not constitute a motor accident. The Panel therefore proceeded on the basis that the attempted carjacking incident, including the associated events such as the car cabin melee, the slight moving of the vehicle, the application of the handbrake, constituted the “motor accident”.
When treating the motor accident as a single causative event and for the above reasons, the Panel was satisfied, on balance, that the motor accident caused the claimant significant psychological injuries, namely a post-traumatic stress disorder and the subsequent alcohol abuse disorder.
CONCLUSION – THRESHOLD INJURY
The following injuries WERE caused by the motor accident:
· post-traumatic stress disorder, and
· alcohol use disorder.
The Panel concludes that the claimant’s injuries caused by the motor accident are NOT threshold injuries. The Certificate of Medical Assessor Abhishek Nagesh dated
12 December 2023 is therefore confirmed.
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