Brennan v Insurance Australia Limited t/as NRMA Insurance
[2024] NSWPICMP 617
•3 September 2024
| DETERMINATION OF REVIEW PANEL | |
CITATION: | Brennan v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 617 |
CLAIMANT: | Reece Brennan |
INSURER: | Insurance Australia Limited t/as NRMA Insurance |
REVIEW PANEL | |
MEMBER: | Elizabeth Medland |
MEDICAL ASSESSOR: | Paul Friend |
MEDICAL ASSESSOR: | Christopher Rikard-Bell |
DATE OF DECISION: | 3 September 2024 |
CATCHWORDS: | MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999 (MAC Act): whole person impairment (WPI) for psychological injury; whether psychological injury a result of a motor accident; claimant and his child passengers in a vehicle driven by pregnant wife; altercation occurred with occupants of another driver; some intimidating conduct occurred during the driving of the vehicle; claimant was the victim of a serious physical assault; Allianz Australia Insurance Limited v Gonzales, Pham v NRMA Insurance Limited and AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly Motor Accidents Authority of New South Wales) considered; Held – psychological injury arose from the entirety of the relevant events, with the events involving the driving of the other vehicle materially contributing to the post-traumatic stress disorder; 8% WPI; Medical Assessment Certificate revoked. |
DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION Medical Assessment – Permanent Impairment Issued under Part 3.4 of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Samson Roberts dated 8 February 2023 and issues a new certificate 2. The following injuries caused by the motor accident gave rise to a permanent impairment of 8%, which is NOT GREATER than 10%. · post-traumatic stress disorder. |
STATEMENT OF REASONS
INTRODUCTION
This is an application by the claimant, Reece Brennan, to review a medical assessment of Medical Assessor Samson Roberts (the Medical Assessor) dated 8 February 2023.
On 31 March 2016 the claimant was involved in a “road rage” type incident. The full details of the incident are set out below, however, in summary the claimant was a passenger, along with his children, in a vehicle driven by his wife. An altercation occurred between the claimant and the young male occupants of another vehicle. The claimant later exited his vehicle and was set upon by the young men and was physically assaulted.
The claimant lodged a personal injury claim form (the claim) with Insurance Australia Limited t/as NRMA Insurance (the insurer) who are the compulsory third party (CTP) insurer of the other vehicle involved in the incident.
The claim is governed by the provisions of the Motor Accidents Compensation Act1999 (MAC Act).
The claimant alleges psychological injury arising from the incident. He further asserts that the psychological injury is a result of a motor vehicle accident as defined by the MAC Act.
A dispute has arisen between the parties as to whether the claimant has suffered a psychological injury as a result of a motor accident for the purposes of the MAC Act. Further, whether any such injury gives rise to a whole person impairment that is greater than 10%.
No damages for non-economic loss can be awarded unless the degree of permanent impairment as a result an injury caused by the motor accident is greater than 10%.[1]
[1] Section 131 of the MAC Act.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a determination of the dispute.
Medical Assessor Roberts issued a certificate dated 8 February 2023 certifying that the claimant did not suffer a psychological injury as a result of the claimed motor accident.
The claimant subsequently lodged an application for review with the Commission. The President’s Delegate in a determination dated 28 June 2023 agreed that there is reasonable cause to suspect the medical assessment is incorrect in a material respect and the matter was later referred to this Review Panel (the Panel).
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (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 Schedule 1 cl14A(1) of the PIC Act. As the medical assessment, the subject of this 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 by the Motor Accidents Division of the Commission.
Part 5 of the PIC Act enables the Commission to make rules with respect to its practice and procedure including proceedings before a Panel reviewing the decision of a single Medical Assessor.
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 matter solely based on the written application.
The review of the medical assessment is by way of a new assessment of all the matters with which the medical assessment is concerned.
The Panel met via teleconference on 15 May 2024 and determined that an examination was required. An examination was arranged to occur via audio visual link (AVL) on 19 June 2024 to be conducted by Medical Assessor Friend and Medical Assessor Christopher Rikard-Bell.
The Panel reconvened via teleconference on 3 July 2024.
THE GUIDELINES
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (Guidelines).[2]
[2] Section 133 of the MAC Act
The Guidelines set out the requirements of an assessment of permanent impairment of a psychological injury at cls 1.201 to 1.288.
Causation of injury is addressed from cl 1.5 of the Guidelines. Clauses 1.6 and 1.7 provides:
“1.6 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.
1.7 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.”
In determining the issue of causation, the Panel is to also have regard to s 5D of the Civil Liability Act 2002 (CL Act).[3]
[3] See s 3B(2) of the CL Act.
“5D General principles
(1) A determination that negligence caused particular harm comprises the following elements—
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
DOCUMENTATION
The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read/considered it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
MEDICAL ASSESSMENT SUBJECT OF THIS REVIEW
Medical Assessor Roberts diagnosed the claimant as suffering a post-traumatic stress disorder. However, he determined that such disorder did not arise as a result of a motor accident.
It was concluded that based on the information contained in the claim form, the clinical documentation and account documented by Dr Allnutt, the injury arose solely from the assault and not from the “motor vehicle accident”.
On account of his finding that the injury did not arise from the claimed motor accident, Medical Assessor Roberts did not make an assessment of whole person impairment.
SUBMISSIONS
Claimant’s review submissions dated 13 March 2023
The submissions rely on the account of the subject incident documented by Dr Allnut who concluded that the verbal assault and threatening behaviour of the occupants of the other vehicle materially and substantially contributed to the injury.
It is noted that the claimant does not seek damages for any physical assault arising from the subject incident. The claimant concedes that such assault does not give rise to an action under the MAC Act.
It is submitted that the Medical Assessor erred in finding that the motor vehicle played no part in the psychological injury. It is submitted:
“The claimant’s claim is that he feared for his life as a result of the verbal assaults, threating and menacing behaviour and the mounting by the car of a footpath in front of the claimant to block his path of escape. The claimant feared for his life as a result of those incidents.”
On this basis, the claimant submits that the above incidents arise out of the use of a motor vehicle as defined in the MAC Act.
Claimant’s additional submissions dated 30 May 2024
It is submitted in summary that a Panel:
“…is authorised to determine causation, however if there is doubt or if such a determination is controversial, this should be left to a court or claims assessor to determine. It is submitted that in such circumstances, an assessment of the degree of permanent impairment should be provided nevertheless.”
It is further submitted that the material provided to the panel provides “ample support” for a finding that the psychological injury was caused by a motor accident.
The report of Dr Stephen Allnut dated 27 April 2020 is referred to in support of a submission that the motor accident as defined by the MAC Act was a contributing cause that was “more than negligible” (as per the definition in the Guidelines).
The submissions refer to the cases of Allianz Australia Insurance Limited v Gonzales (2013) 65 MVR 286; [2013] NSWSC (Gonzales) and Pham v NRMA Insurance Limited [2015] NSWSC 1205 (Pham) where similar factual scenarios occurred in that there were events involving a motor vehicle and confrontations between the parties. The claimant submits, however, that “…in those cases it was considered that it was the events that took place following the substantive motor vehicle accident that was the cause of the respective claimant’s psychological injuries…” and therefore did not arise from a motor accident.
It is submitted that in contrast in the subject matter, there is the requisite substantial link as the events that materially contributed to the injury occurred in the course of the operation of the motor accident.
Insurer submissions dated 15 June 2022
These submissions were lodged in reply to the claimant’s original medical assessment application for assessment of whole person impairment.
The insurer refers to the evidence that provide a description of the subject incident. Also summarised is the medical evidence. The insurer concludes by submitting that if the claimant sustained a psychological injury as a result of the 31 March 2016 incident, the injury is entirely as a result of the physical assault. It is the insurer’s submission that there is no psychiatric disability arising from a motor vehicle accident.
Insurer’s review submissions in reply dated 3 May 2023
The insurer describes the claimant’s assertion that he sustained a psychological injury as a result of a motor accident as “improbable.”
The insurer submits that verbal assaults, and threatening and menacing behaviour is not a motor vehicle accident. It is further submitted that the mounting of the car on a footpath is not a motor accident. Furthermore, the claimant’s evidence is not that his path was blocked by the vehicle.
It is submitted that whilst the claimant does not rely on the physical assaults as part of his psychological injury, that is not to say that Medical Assessor is to ignore the physical assaults as part of his assessment of the claimant.
Insurer’s further submissions 14 June 2024
The insurer submits that it is not part of the Panel’s function to determine the scope of a motor vehicle accident, but it is a part of the Panel’s function to determine causation, which requires an analysis of the circumstances of the incident and any injuries that occurred.
The insurer submits that pursuant to Pham, as assessment of whole person impairment without a finding of whether the injury was caused by the subject accident has no statutory basis or function.
Accordingly, the Panel must determine causation by the application of the legal concept of causation.
The insurer notes that in the case of Ackling v QBE Insurance (Australia) Ltd [2009] NSWSC (Ackling) 881, Johnson J, rejected the submission that a medical assessor has no jurisdiction to consider and determine whether an injury was caused by a motor accident. In this regard, his Honour found that cls 1.4-1.6 of the Guidelines is such that a determination as to whether an injury is caused by the relevant motor accident lies within the medical assessment jurisdiction provided for in Pt 3.4 of the MAC Act. The insurer notes that this approach was followed by Campbell J at [27] in the case of Owen v Motor Accidents Authority (NSW) [2012] where he found:
“Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor’s constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the permanent impairment guidelines. But it is well to emphasis that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D (See s 3B(2)).”
The case of Gonzales, is referred to by the insurer where it was found that the causation between the driving of the vehicle and the wrongful conduct of the driver and his friends was not established.
The insurer refers to the case of AAI Ltd v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 where the Court rejected the argument that the MAC Act requires a Medical Assessor to determine or characterise ‘what elements of an incident involving a motor vehicle during which a person was injured constituted a motor accident’.
The Court found that such liability issue should be determined before a Medical Assessor is asked to determine the dispute. However, at [161] the Court found:
“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’.”
In the submission of the insurer, the driver of the vehicle did not cause a psychiatric injury.
The insurer refers to the Victims Compensation Unit initial report refers to “aggravated assault by four individuals involving weapons in mid-morning very close to Reece’s home.” The insurer notes that this a physical assault. The insurer submits that the physical assault is “clearly the cause” of the psychological injury.
The case of Gonzales is referred to again, specifically [24]:
“The closeness of the link between the incident and the driving is very much a question of fact and degree but it must be ‘very substantial’ in order to satisfy the requirements of predominance, immediacy and proximity. Thus, if a driver merely holds the vehicle steady so that a gun can accurately be fired by a passenger at a nearby house, that will not suffice: ibid at [30] – [31]; see also Ross v Transport Accident Commission [2000] VSC 112; Mani v Nominal Defendant [2002] QSC 152 and Coley v Nominal Defendant [2003] QCA 1”
SUMMARY OF DOCUMENTARY EVIDENCE
Claim form dated 9 September 2018
The following description of events is provided by the claimant:
“The occupants of vehicle 1 verbally abused me from their vehicle whilst I was waiting at the traffic lights in my vehicle (vehicle 2). They then proceeded to drive in an intimidating and dangerous manner, swerving their vehicle towards me, tailgating me and driving very slowly in front of me. This continued over approximately 10kms relentlessly. I had my pregnant girlfriend and toddler son in the vehicle so I tried to ignore them. My hat flew out of the window. Close to where I’ve got out the car to retrieve my had as I believed they had driven off. However, they came back and drove their vehicle up the footpath at me. I tried to run away. They got out of vehicle and I tripped over and then one of the occupants of vehicle attacked me and struck me with a knuckle buster causing significant injuries to my face.”
The claim form lists a number of alleged physical injuries in addition to posttraumatic stress disorder.
NSW police material
A police file is included in the insurer’s bundle of documents. The “COPS” report dated 31 March 2016 provides the following narration of events:
“Information known at this stage.
About 10.30am on the 31st March 2016, the victim, Reece BRENNAN, his partner, Krystal WILLIAMS and son have left Warrawong plaza. The victim was sitting in the front passenger seat, whilst his partner was driving in lane 2 of 3 south bound along King Street, Warrawong. As WILLIAMS has approached the traffic lights along King Street and Shellharbour Road, a silver commodore drove up along side in lane 1. At this stage the victim has had his arm outside of the vehicle waving it around. All three (3) passengers inside the silver commodore have began mimicking the victim before yelling abuse towards him. WILLIAMS and the silver commodore have driven off.
Both vehicles have driven for some distance within the same lanes, as WILLIAMS was approaching Boundary road turn off, the victim has waved his arm up in the air towards the silver commodore and yelled out ‘Fuck off’. As the victim has done this he has knocked his baseball cap off, which fell out the passenger window and on the road way. The silver commodore has continued to drive south. WILLIAMS has merged into lane 1 and turned left into Boundary road. The victim told WILLIAMS to pull over as he wanted to grab his cap. WILLIAMS continued to drive home.
The victim collected his cap, as the victim was walking south bond (sic) along Windang road, the victim has noticed the silver commodore parked along the footpath. As the victim was approaching the silver commodore, three (3) males have began walking to ward (sic) him. According to the victim, he noticed POI1 to be holding something in his hand. All three (3) males have surrounded the victim, when POI1 has taken a swing towards the victim. The victim has began walking backwards whilst saying, ‘Don’t hit me, put the knife down.’ At this stage the victim has fallen to the ground, before standing back up and again began walking backwards, before the victims legs ‘went from underneath him’, the victim has fallen face down, and as the victim was trying to get up POI1 stood over the top and punched the victim once to the face. The victim has began bleeding immediately. All three (3) males have ran off back towards the silver commodore. The victim has ran home.
…”
Victim Services Initial Report dated 12 May 2017
The report includes the following description of events:
“Reece and his family had been driving home to Windang from the Warrawong Shopping Centre. His partner was driving the motor vehicle with Reece in the passenger seat and the children in the back seat. A group of young people drove alongside them and started mocking Reece and gesturing at him seemingly making fun of the cap he was wearing. Reece started looking in their direction and his body language may have been defensive/aggressive and the group of 5 individuals continued to make offensive gestures. Their vehicle continued to travel in close proximity to Reece’s motor vehicle cutting the family vehicle off on a couple of occasions and coming close to colliding with the family car. Reece and the family were concerned because of the aggressive behaviour of the group of 5 individuals. This aggressive and intimidating driving of the other vehicle continued until Reece neared home, when the other vehicle drove past them and it seemed that the interaction had come to an end.
Reece’s cap, a favourite item, fell out of the motor vehicle and he subsequent [sic] got out of the car to fetch it and told his wife to drive home with the children. The vehicle containing the offenders had this point stopped at the traffic lights in front of Reece and one of the occupants spotted Reece on the roadway and the car did a turn to come after him. Reece immediately took off in the direction of his home about 2 blocks away, but the offenders vehicle stopped close to him and the 4 passengers alighted, while the driver stayed in the motor vehicle, the group of 4 rushed towards Reece. At first Reece did not realise that 2 of the offenders had weapons, one a motor vehicle lock (club lock) and the other a tomahawk. In the following altercation, Reece was struck several times and hit on vicious head/facial blow with the tomahawk.
…”
Treating medical evidence
The file of Shellharbour Hospital is noted. The notes document a road rage assault that involved the claimant being hit with a knuckle duster with a serrated axe edge.
A 12cm full thickness laceration starting from right lateral aspect of the nasal bridge across the nose is documented with a most likely diagnosis of compound fracture of the maxilla with left infra-orbital plus buccal branch of the left facial nerve involvement.
A CT of the facial bones confirmed extensive fractures involving the left maxillary sinus, consistent with haematoma.
The claimant was noted to be anxious and “concerned about the effect of the assault and his injuries on his pregnant [sic] wife and young children…”
He was later noted to be distressed and agitated and concerned about doctors judging him on his tattoos.
The Prince of Wales Hospital notes a transfer from Shellharbour Hospital. Triage note the claimant being hit in the knee with a blade ‘knuckle buster’ type instrument. An open fracture of the orbital floor noted and large laceration to the nose. He underwent a debridement under general anaesthetic.
The general practitioner (GP) file of Regent Street Medical Centre notes a past history of anxiety/depression in 2013. He was prescribed Celepram at the time. The depression was noted as improving on 7 August 2015.
A report from Uplift Psychological Services dated 20 October 2014 noted the claimant to have suffered from low mood for a number of years with experiences of anhedonia. He was noted to be angry often. He later attended two cognitive behavioural sessions but failed to attend further appointments, despite having eight sessions remaining on his mental health plan.
His last consultation with the GP, Dr Rothonis, prior to the accident was on 8 December 2015 with abdominal and epigastric symptoms.
He consulted to Dr Rothonis in respect of the subject accident on 15 October 2016. A good cosmetic effect was noted after treatment, with a very deep and long gash from the assault. It was said the claimant needs to apply for criminal compensation. The reason for visit is noted as “anxiety/depression. Counselling”. He was prescribed Lovan 20mg.
The next consultation was on 13 February 2017 with notes of depression and left neuralgia post injury to the face. He was prescribed Lovan, Zoloft and Valpro.
On 18 April 2017 the claimant was noted to have had a good initial response to Zoloft, but had a resurgence of anxiety symptoms. Reason for visit is recorded as “anxiety/depression. PTSD”.
The claimant was noted to be still suffering from panic attacks despite treatment on 26 April 2017. The claimant was noted to have stopped on the M1 because he was driving alone.
By 12 May 2017 the claimant was noted as “better” but not fit to return to work.
His medication was changed to Pristiq and on 20 February 2019 it was noted that he had not responded well and was restarted on Zoloft with an increase in dose. However, this was later discontinued, however, he experienced weight gain on Axit and he was switched to a low dose of Seroquel.
Medico-legal evidence
The claimant relies on a report of Dr Allnutt, psychiatrist, dated 27 April 2020.
The claimant gave a history of previously suffering panic attacks, but not at the current intensity. At the time of the accident he was said to be psychologically and emotionally well. However, he was on antidepressants due to a strain in his relationship which had been more difficult about one year prior to the subject injury.
The history of the subject incident is recorded as follows:
“At the time of the index injury his partner was driving. She was pregnant. His son was also in the car. Another car came past with the occupants putting their hands out into the wind, mimicking him having his hand out of the window. An altercation on the road ensued and continued for about 7km to 10km, until they got to Windang. He was worried about the car crashing, with his partner being pregnant and his son being in the car.
Coming close to home, he leaned out of the window to gesture to them asking what they were doing and at that stage his hat flew off his head. He added that during the pursuit they had been cursing at him and swerving, going from behind his car to in front of him, braking, attempting to get your client’s car to stop. As they turned left into the road that would take them to their home, the other car continued on and he assumed they had left them alone. He told his wife to stop on the side of the road to let him get out to retrieve his hat and she continued down the road to the house. He got his hat and as he was walking back he realised his house was the last house at the end of the street; at the same time he discovered the other car was level with him, driving down his street, and he did not want them to see him going into his home. He became anxious. They drove up onto the footpath and cut him off, he tripped and fell, and then they came over and assaulted him. He said at the time he was surprised he was unable to run away when he felt he was under threat from them, and his leg ‘locked up’. This was uncharacteristic for him.
At the time he thought they were going to run him over. The assault lasted about 30 seconds and they hit him which (sic) a knuckle duster which had a blade on it, resulting in a serious laceration to his face. People came and eventually he walked back home. His partner took him to the hospital, and he was admitted there for a few days with the laceration to his face and a possible fracture of the nose.”
Dr Allnutt diagnosed post-traumatic stress disorder. In respect of causation Dr Allnutt states as follows:
“The incident of 31 March 2016, your client was with his pregnant wife and son in the car. He describes being subject to verbal assault and threatening and menacing behaviour directed at your client while he travelled in his vehicle. He would likely have felt vulnerable as a result of these circumstances. The use of a vehicle to corner your client while he as on foot was a further threat of harm and thus was then followed by an assault. Overall the incident, materially and substantially contributed to his mental state.”
PANEL EXAMINATION
Identification data
Mr Brennan is a 37-year-old man who currently resides with his brother, aged 45, his brother’s wife and their four children. Mr Brennan receives Centrelink benefits and is planning to reconcile with his wife, Crystal Williams, and their four children aged 18, 16, 11 and 8.
Mental state examination
Mr Reece Brennan presented as pleasant man of stated age who was balding with a closely shaven head. He appeared neat, tidy and well-groomed wearing a collared jacket and a blue t-shirt. He was well presented and clean shaven. He engaged well during the two-hour long interview. Mr Brennan was often apologetic regarding his lack of detail in relation to certain events, as well as confusion surrounding the time of the events. Nevertheless, he maintained good focus throughout the entire assessment. His speech was normal in tone and volume. There was no abnormality of perception. There were no hallucinations or delusional ideas. Mr Brennan’s affect was reactive. At times he seemed quite anxious while at other times he was relaxed. He laughed on a few occasions, such as with comments about the football. His cognitive function was normal and his thoughts were logical. Mr Brennan believes his main problems related to the assault of 31 March 2016.
History of the motor vehicle accident
On 31 March 2016 Mr Brennan, his wife, who was pregnant with their youngest child, and son had gone to McDonalds for breakfast. As they were travelling home, they were taunted by “some young blokes.”
Mr Brennan described a frightening ordeal involving several of the young men in the other vehicle. He had his window open and was feeling the wind on his hand. The occupants of another vehicle imitated or mimicked him. He gestured to them, and according the certificate of Medical Assessor Samson Roberts, leaned out of the window and said “fuck off”. The other vehicle subsequently drove in front and behind and served towards them. It slowed down and accelerated. The intimidation continued for some time.
They reached the turn off to the suburb where they lived.
Mr Brennan put his head out the window and gestured to show that his son was in the vehicle. He was wearing his favourite “Rabbitohs” hat which fell off as he leaned out the window.
He told his partner to pull over so he could retrieve his hat which he did. He told his wife to drive home as he did not want to show them where he lived.
The other vehicle pulled over. One of the occupants opened a door. Mr Brennan pushed the door shut which caused the occupants to swear at him.
The other vehicle drove onto the footpath blocking his path. The four occupants got out. Two were carrying club locks, one had a baton and the fourth had knuckledusters with an axe blade welded onto to them.
Mr Brennan backed away and tripped over his thongs falling to the ground. The youth with the knuckledusters swung at him. He got to his feet. His legs felt like cement and he felt unable to run away. He tripped over the gutter and fell to the ground. He turned over. The youth with the knuckledusters was on top of him and struck his face with the blade.
The youths saw he was injured, ran back to their vehicle and drove away.
Mr Brennan walked home. He was later determined to have a fractured nose and maxilla.
His wife drove him to Shellharbour Hospital where he assessed and later transferred to Prince of Wales Hospital where he was admitted for four days. He had surgery for the fractures and the laceration on his face.
Symptoms and treatment after the accident
Following the accident, Mr Brennan attempted to return to work as an electrician and in maintenance after approximately three months, although he was unclear on the timeframe. He worked for 18 months and began therapy through Victims Services. Surprisingly, Mr Brennan was able to work well after the accident and was appointed in a full-time role. He believed he was doing well until he commenced therapy with Victims Services when he began to feel unwell as he raised the issues that had arisen and anxiety increased. He was no longer able to perform effectively at work.
There was previously treatment with Dr Lauren Stahl, psychologist, once or twice prior to the accident, however there were no particular issues at that time.
Mr Brennan’s anxiety increased. He had difficulties driving and he ceased work towards the end of 2017.
It was brought to his attention that he had requested a Centrelink certificate from Dr Rothonis on 7 August 2015 and there was a prescription for antidepressant medication on 28 October 2015. In addition, there was a consultation on 8 December 2015 for nausea and vomiting.
The accident had occurred on 31 March 2016 and it was raised that it was unusual that he had not consulted Dr Rothonis from 8 December 2015 until 15 October 2016. Therefore, since the accident of 31 March 2016 until 15 October 2016 there were no entries recorded by Dr Rothonis.
Mr Brennan had no explanation for this apart from the fact that he was feeling well at that time. He was approved for treatment by Victims Services on 24 January 2017. He was treated by Dr Crockford between 3 April 2017 and 26 May 2017. Mr Brennan increasingly struggled at work until he ceased work towards the end of 2017. His supervisor was ridiculing him and, making fun of him because of his anxiety. He was given tasks such as digging trenches when a backhoe could have been used. Eventually, Mr Brennan resigned as he felt overwhelmed. Prior to the accident, there was treatment with a selective serotonin reuptake inhibitor (SSRI) and Mirtazapine which continued after the accident.
Mr Brennan sometime after the motor accident, decided to live separately from his family because of his repeated sleep walking.
He relocated to live with his brother.
He currently takes Sertraline and Mirtazapine which have not been helpful.
Past medical history
There is no history of serious illnesses, injuries or conditions. There is no regular medication apart from antidepressant medication Sertraline 100mg and Mirtazapine 45mg.
Past psychiatric history
Following an accident in 2011, he may have been taking antidepressant medication for a few months.
Mr Brennan’s parents separated when he was aged 13 years which was quite difficult for him and this was an unhappy period. Mr Brennan has been able to maintain a good relationship with both parents. He recovered from his parents’ separation and was able to continue functioning adequately.
During his late teens he met his current partner. During his 20s there were some anxiety attacks and treatment with antidepressant medication. The motorbike accident in 2011 occurred when he was aged 24 years.
There was counselling at the age of 26 years in 2013 and he continued to take antidepressant medication. There was further counselling at age 27 years.
The Panel noted depression and anxiety previously and Mr Brennan had consulted the GP in relation to possibly receiving Centrelink payments. At the time there was marital stress and relationship distress with his partner and he indicated he may have received some advice from the GP, however he fully recovered from the stress he was experiencing at that time.
Subsequently there was the subject incident that occurred on 31 March 2016. Following the incident, Mr Brennan continued to work and according to the handwritten notes there was counselling on 3 April 2017 and 26 May 2017. Mr Brennan was of the view he had been functioning quite well prior to the treatment, however the counselling highlighted and raised emotional issues and he appeared to deteriorate.
He continued to take Sertraline and Axit, as well as Nexium and Somac for stomach problems.
Mr Brennan repeated he could not remember details, but did acknowledge that he was taking Olanzapine for a few months after the accident which was not helpful.
Past forensic history
He suffered an accident riding a motorbike in 2011, which led to an admission to intensive care for one week for fractured ribs. He fully recovered.
Initially, he stated he could not remember the year of the motorbike accident, however when he was prompted suggesting that it was in 2011, he agreed that this was accurate.
Mr Brennan stated on repeated occasions that his memory was very poor.
He ceased riding motorbikes after 2011. He is planning to return to motorbike riding because his son is interested in learning how to ride a motorbike.
Mr Brennan was struck by a van at the age of 16 years which did not have any long-term adverse effect on his emotional or physical health.
There is no other history of motor vehicle accidents, workers compensation claims, insurance claims or legal issues.
Current symptoms
Mr Brennan’s sleep is broken and he will wake up in the middle of the night after two hours of deep sleep and will be sleeping walking. Sometimes he has panic attacks and screams when he wakes. He has nightmares about being attacked. He sometimes cannot remember what wakes him which occurs several times per week.
His memory is poor and he often cannot remember the content of the nightmares. He does remember locations, and the feeling of being pursued and wanting to protect his son. There are no clear visual intrusive recollections described, although he thinks a lot about the attack as well as the fear he had for himself and his son.
Generally, Mr Brennan worries a lot about his health, the future and the impact on providing for his family. His anxiety has increased and he has lost 18kg in weight.
Mr Brennan’s mood is constantly anxious and he feels on edge.
He denied suicidal feelings or hallucinations
He has panic attacks most days characterised by difficulty breathing and palpitations. He does not like to drive alone except on rare occasions when he can drive for short distances. Sometimes he drives his partner or sister-in-law as they cannot drive a manual vehicle. Generally, he likes to be accompanied when in the car, however on rare occasions he can drive alone for a short distance. Mr Brennan is avoidant of crowds and of leaving home. He avoids meeting people and he feels overwhelmed with anxiety. There are some obsessive symptoms such as checking locks and windows at night before going to bed.
Current routine
Generally, Mr Brennan will wake up at 5.00 or 6.00am and will have a coffee or sometimes he wakes up at 9.00am.
He typically stays home during the day and will read, watch television or YouTube videos. He was unclear what he does for lunch. He mows the lawn, but not consistently. He is generally avoidant of chores around the house.
Mr Brennan, when asked directly stated he does not like going to the shops to source items or equipment. He said that if his brother is able to supply all the equipment required, he would be able to install an oven or electrical device. Mr Brennan is able to manage quite complex electrical tasks, such as the installation of a kitchen appliance. He goes to bed between 10.00pm and 12.00am. Mr He sees his children on weekends and he will watch their various sporting activities and games.
Current functioning
Mr Brennan is able to dress, feed and wash himself. He requires a reminder to shower and does not shower every day. He wears clean clothing and was clean and well presented at the examination. Therefore, there is mild impairment of self-care and personal hygiene.
Mr Brennan stated he has lost a lot of friends and friendships have broken down. He is close to his children, his brother and his brother’s family. He is attempting to reconcile with his partner and return home, however Mr Brennan stated the reason he left the family home and moved to live with his brother was because he felt it may be unsafe for his children during his sleepwalking episodes, as he was unpredictable. Therefore, as a protective measure for his children and not due to relationship difficulties with is partner, he moved to live with his brother. There is mild impairment of social functioning.
In terms of concentration, Mr Brennan is able to read and can manage complex tasks, such as installing an oven. He could concentrate and focus well at the interview for two hours, even though he complained of short-term memory problems. On balance, there is mild impairment of concentration, persistence and pace.
In terms of social and recreational activities, Mr Brennan requires prompting to go out and he does not like to see friends. He will attend family functions, however he is avoidant of social interaction and has lost friends due to lack of interest. Therefore, there is moderate impairment of social and recreational activities.
In terms of adaptation, Mr Brennan returned to work after the assault and was able to continue working. He was working full-time However gradually his condition worsened and after 18 months he was unable to continue working as he felt embarrassed and targeted. He was overwhelmed with anxiety and had panic attacks whilst driving at times. It was difficult to travel. Eventually he was supported to cease work through his GP and Dr Crockford.
Mr Brennan currently feels amotivated and overwhelmed at the thought of working. He tried working in his own business part-time for six months during 2018, however this was overwhelming and he ceased work. Therefore, there is severe impairment of adaptation.
In terms of travel, Mr Brennan is generally driven by others and his mother drove him to the interview today. He can drive such as when he drives a manual vehicle and he can drive himself on rare occasions, however he generally likes to be accompanied. He can drive in the local area or short distances. He is often fearful when driving and previously when working had panic attacks whilst driving. Nevertheless, he is able to drive short distances alone. On balance, there is mild impairment of travel.
Opinion and causation
Mr Reece Brennan is a 36-year-old man who is currently residing with his brother and his family in Constantin and receives a Centrelink payment. Mr Brennan’s wife and their four children reside in the family home in Windang.
Although Mr Brennan is living apart from his wife and children, he remains in a relationship with his wife and plans to live with his family in the foreseeable future.
Mr Brennan had some vulnerabilities as a teenager particularly after his parents separated. This was a stressful period, but he was able to overcome these problems and continued to complete his education and engage in the workforce full-time. Mr Brennan has been in the relationship with his wife since age 16 years. They have four children. His wife has been employed initially in his father’s business.
Mr Brennan stated at the interview and to Dr Allnut that he was well prior to the accident. It is noted that there was some vulnerability prior to the assault. It is recorded in the general practice notes that he had chronic anxiety as a teenager and was treated with Citalopram. In 2013 he was treated with antidepressants intermittently. Mirtazapine was added in 2015. On 23 July 2015 the anxiety was reported as improving and there were ongoing prescriptions of fluoxetine noted.
On balance, the Panel accepted that when on maintenance fluoxetine Mr Brennan was emotionally stable and not depressed. The last prescription for fluoxetine, prior to the motor accident was dated 28 October 2015. The last consultation with the GP, prior to the motor accident, was on 8 December 2015 with nausea and vomiting Mr Brennan was asked about the gap in consultations with his GP between 8 December 2015 until 15 October 2016. He was unable to remember but believed that he was well.
At the time of the accident, Mr Brennan was working full-time and the relationship with his partner was good. He was engaging in social activities. Mr Brennan reported that there had been previous relationship difficulties, however the couple had reconciled and there were no issues at the time of the accident.
The subject accident occurred on 31 March 2016 when essentially Mr Brennan was involved in a road rage or intimidation incident whilst his partner, who was pregnant at the time, was driving and their young son was in the vehicle. Mr Brennan got out of the vehicle to retrieve a hat and the other vehicle appeared continuing to harass him. An assault ensued and Mr Brennan was physically injured.
The other clinicians who have reviewed Mr Brennan accept that he developed post-traumatic stress disorder following the accident. He various symptoms including fear for his life and the safety of his family, nightmares, flashbacks and intrusive recollections of the assault, avoidance of socialising and interacting with others particularly with strangers or going into crowded venues, low confidence levels and a negative view towards safety and the world, as well as hypervigilance, constant anxiety and there have been recurrent panic attacks. These symptoms fulfil the criteria for posttraumatic stress disorder according to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria.
Dr Allnut was of the view that the injury was related to travelling home in the car and was part of a motor vehicle accident under the MAC Act (mistakenly referred to as the MAI Act). Dr Samson Roberts was of the view that Mr Brennan suffered post-traumatic stress disorder from the assault of 31 March 2016. Dr Roberts formed the view that the assault did not arise from a motor vehicle accident or event, therefore was unrelated.
The Panel notes the dispute between the parties as to whether the psychological injury has arisen from a motor vehicle accident as defined under the MAC Act. The claimant argues that the intimidation and altercation that occurred whilst all involved were in travelling motor vehicles, has materially contributed to the claimant’s psychological injury. On the other hand, the insurer submits that “it is clear” that the psychological injury has arisen as a result of the physical assault that ensued after all involved had exited the vehicles.
It is noted that it is preferable that the dispute regarding whether the injury has arisen from a motor accident be resolved prior to a referral to a Medical Assessor. However, this has not occurred and thus the Panel is obligated to make findings on causation as a legal concept.[4]
[4] AAI Ltd v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 at [161].
There appears to be little controversy between the parties that the physical assault that occurred, would not constitute a motor vehicle accident for the purposes of the MAC Act. In the Panel’s view, this position is consistent with cases such as Gonzales and Pham.
However, the question remains whether the altercation that occurred between the claimant and the occupants of the other vehicle, whilst the vehicles were being driven, constitutes a motor vehicle accident. The insurer’s submissions largely focus on the argument that the psychological injury has solely arisen from the physical assault rather than delving into whether the earlier altercation involving the vehicles constitutes a motor accident. However, it appears the insurer argues that it does not. The claimant, however, argues that these events fall within the definition.
The Panel notes that ultimately, the question of whether such events involving the vehicles fall within the definition of motor accident in the MAC Act is a question for the Court/Commission as part of a claims assessment.[5] However, for the purposes of this medical assessment the Panel has assumed that the altercation that occurred when the vehicles were being driven would constitute a motor vehicle accident for the purposes of the MAC Act. The Panel has had regard to the definition of motor accident contained within s 3 of the MAC Act and the restrictions set out in s 3A. The Panel has concluded that the intimidating conduct of the driver of the motor vehicle involved the use or operation of a motor vehicle and the psychological injury is a result of and is caused during the driving of the vehicle.
[5] ibid (AAI Ltd v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 at at [368].
If the Court/Commission later finds this not to be the case, then plainly the claim fails as a whole, and this medical assessment will have no practical effect.
After consideration of the material and following clinical examination, the Panel finds that the entirety of the relevant events has given rise to the claimant’s psychological injury. The events are intrinsically linked. The Panel accepts that the events that occurred when the claimant was occupying the vehicle has, on the balance of probabilities, materially contributed to the claimant’s psychological injury of posttraumatic stress disorder. In this regard, the Panel accepts that the events were capable of contributing to the psychological injury in circumstances where there was intimidating and menacing behaviour in the way that the other car was being driven and the threats that occurred during the driving of the vehicle, by the occupants of the vehicle, including the driver. This is particularly so in circumstances where the claimant’s child and pregnant wife were in the vehicle.
Whilst the Panel notes the Victims Compensation material focusses on the physical assault, the Panel has concluded after consideration of all of the material and following the clinical examination, that the encounter that occurred during the driving of the vehicles was both capable of materially contributing to the psychological injury, and did, on the balance of probabilities, did materially contribute to the claimant’s psychological injury.
In such circumstances, the Panel agreed that post-traumatic stress disorder was causally related to the subject motor vehicle accident of 31 March 2016. This is the case despite the Panel accepting there were predisposing vulnerabilities with pre-existing anxiety and depression at the time of the incident (motor vehicle accident).
The series of events that unfolded in the subject accident has led to post-traumatic stress disorder, although initially Mr Brennan appeared to be able to return to work and function adequately, however over time his performance deteriorated. When receiving treatment with Dr Crockford at Victims Services the condition deteriorated further and his work performance deteriorated to the point that he felt unable to continue and he eventually ceased work. He attempted to work part-time in his own business but was similarly unable to continue for more than six months and he has been receiving Centrelink benefits since. Mr Brennan continues to struggle with traumatic symptoms and he has received treatment with Dr Crockford from 3 April 2017 to 26 May 2017 and Dr Lauren Stahl, psychologist.
The criteria according to DSM-5 is listed below:
“ A. A traumatic event – (the subject motor incident resulting in fear for his life with the assault causing injuries requiring hospitalisation and surgery)
B. Re-experiencing phenomena – (there were reported nightmares, flashbacks and intrusive recollections of the assault and car incident.)
C. Avoidance behaviour – (there were behaviours leading to avoiding socialising and interacting with others, particularly with strangers or going into crowded venues.)
D. Negative cognitions – (the claimant viewed himself with low confidence levels and a negative view towards family and world safety.)
E. Marked alterations in arousal – (there was hypervigilance, constant anxiety regarding his and his family wellbeing with recurrent panic attacks.)
F. Duration of more than one month
G. Significant impairment of functioning
H. Not due to substance use or other medical condition”
It is worth noting that Mr Brennan reported to Dr Samson Roberts that he was able to engage in activities with his children such as fishing, going to the beach and attending basketball and that he engages with his brother and his brother’s children. In addition, it was noted that he was planning to reunite with his wife and children and that he did not want his children exposed to his sleepwalking and distraught reactions which is the main reason that he had left the family home in order to protect his children rather than a breakdown in the relationship with his wife and children.
Whole Person Impairment
Psychiatric Impairment Rating Scale:
Psychiatric diagnoses
Posttraumatic stress disorder
Psychiatric treatment description
Nil currently
Category
Class
Reason for Decision
1. Self Care and Personal Hygiene
2
Mr Brennan is able to dress, feed and wash himself. Although he does require some reminding to shower and does not shower every day, he is able to wear clean clothing and was very well presented and clean at interview. Therefore, there is mild impairment of self-care and personal hygiene.
2. Social and Recreational Activities
3
In terms of social and recreational activities, Mr Brennan requires prompting to go out and he does not like to see friends. He will attend family functions, however he is avoidant of social interaction and has lost friends due to lack of interest. Therefore, there is moderate impairment of social and recreational activities.
3. Travel
2
In terms of travel, Mr Brennan is generally driven by others and his mother drove him to the interview today. He can drive such as when he drives a manual vehicle and he can drive himself on rare occasions, however he generally likes to be accompanied. He can drive in the local area or short distances, even though he seemed reluctant to acknowledge that this was within his capabilities. Often when in the car he is fearful and previously when attempting to return to work there were panic attacks whilst driving. Nevertheless, he is able to drive short distances alone. On balance, there is mild impairment of travel.
4. Social Functioning
2
In terms of social functioning, Mr Brennan stated he has lost a lot of friends and friendships have broken down. He is close to his children, his brother and his brother’s family. He is attempting to reconcile with his partner and return home, however Mr Brennan stated the reason he left the family home and moved to live with his brother was because he felt it may be unsafe for his children during his sleepwalking episodes, as he was unpredictable. As a protective measure for his children and not due to relationship difficulties with is partner, he moved to live with his brother and therefore, there is mild impairment of social functioning.
5. Concentration, Persistence and Pace
2
In terms of concentration, Mr Brennan is able to read and can manage complex tasks, such as installing an oven. He could concentrate and focus well at the interview for two hours, even though he complained of short-term memory problems. On balance, there is mild impairment of concentration, persistence and pace.
6. Adaptation
4
In terms of adaptation, Mr Brennan returned to work after the assault and he was able to continue working. He was appointed to full-time, however gradually his condition worsened and after 18 months he was unable to continue working as he felt embarrassed and targeted. He was overwhelmed with anxiety and there were panic attacks whilst driving at times, therefore, he was unable to travel easily. Eventually he was supported to cease work through his GP and Dr Crockford. Currently, Mr Brennan feels amotivated and overwhelmed at the thought of working. He tried working in his own business part-time for 6 months during 2018, however this was overwhelming and he ceased work. Therefore, there is severe impairment of adaptation.
List classes in ascending order: 2,2,2,2,3,4,
Median Class Value: 2
Aggregate Score: 15
% Whole Person Impairment: 8%
*%WPI = Percentage Whole Person Impairment
Apportionment
There is no apportionment for pre-existing injuries as the evidence suggest he was well immediately prior to the subject accident.
He has not experienced any traumatic events or developed any new medical conditions following the motor accident.
There is no need to do a pre or post-accident apportionment.
Effects of treatment
There is no allowance for the effect of treatment as psychological intervention was not helpful and symptoms worsened.
CONCLUSION
The Panel finds that the claimant’s level of whole person impairment caused by the motor accident is 8% and is NOT GREATER than 10%.
The Panel’s findings are different to those of Medical Assessor Roberts. Accordingly, the medical certificate of 8 February 2023 is revoked and a new certificate is issued at the beginning of these reasons.
0
4
0