CBS v Insurance Australia Limited t/as NRMA Insurance

DETERMINATION OF REVIEW PANEL
CITATION:	CBS v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 750
CLAIMANT:	CBS
INSURER:	Insurance Australia Limited t/as NRMA
REVIEW PANEL
MEMBER:	Jeremy Lum
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Neil Jeyasingam
DATE OF DECISION:	30 September 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; review of Medical Assessment Certificate (MAC); claimant was a child of just over 2-years when she was hit and run over by a utility while playing in a car park; her parents were removed by the NSW Department of Community Services and she has since had nine different foster parent placements; claimant had difficulty regulating her emotions in both school and home environments; claimant was diagnosed by original Medical Assessor as having a disruptive mood dysregulation disorder with a 9% whole person impairment (WPI); Review Panel re-examined the now 12-year-old claimant and noted improvement with special schooling and claimant has more capacity to self-regulate; Review Panel took into account variations in lifestyle due to claimant’s age, schooling, and complex upbringing in accordance with clauses 1.220 of the Motor Accident Permanent Impairment Guidelines; Held – Review Panel diagnosed reactive attachment disorder and disruptive mood dysregulation disorder as a result of the motor accident; Review Panel assessed 17% whole person impairment (WPI) with 2% for treatment effect; MAC revoked; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Certificate issued under s 63(4) of the Motor Accidents Compensation Act 1999 1. The Review Panel revokes the certificate of Medical Assessor Thomas Newlyn dated 9 February 2023 and issues a new certificate as follows: (a) The Review Panel certifies the following injuries were caused by the motor accident: (i) reactive attachment disorder, and (ii) disruptive mood dysregulation disorder. (b) The Review Panel finds that the above injuries result in a whole person impairment of 19% which IS GREATER than 10%.

STATEMENT OF REASONS

INTRODUCTION

[CBS] (the claimant) was involved in a motor accident on 23 November 2015. She was then a two-and-a-half-year-old toddler playing in a carpark when a Toyota Hilux utility hit her from behind and ran over her abdomen. She was taken to Sydney Children’s Hospital with a lacerated liver, fractured right ilium, a small right pneumothorax, vaginal laceration and abrasions to her neck, left wrist, left lower leg and back.
Following the accident, there were concerns raised by the NSW Department of Community Services (FACS) which resulted in the claimant being placed into long-term foster care following her discharge from hospital.
After foster placement, behavioural problems of oppositionality, hyperactivity, tantrums and lying were reported. In November 2019, the claimant was diagnosed with oppositional defiant disorder (ODD), attention deficit hyperactivity disorder (ADHD) and reactive attachment disorder with emotional dysregulation.
A claim for personal injury benefits was made on her behalf with Insurance Australia Limited t/as NRMA (the insurer), the third-party insurer of the vehicle that the claimant says caused the accident.
A medical dispute arose about whether the degree of the claimant’s whole person impairment (WPI) is greater than 10% WPI. If there is a dispute about the degree of a claimant’s WPI, damages for non-economic loss[1] cannot be awarded and disputes must be referred to a Medical Assessor/s for determination.
[1] Section 131 of the Motor Accidents Compensation Act 1999.
On 9 February 2023, Medical Assessor Thomas Newlyn diagnosed the claimant with a psychological injury (disruptive mood dysregulation disorder) that was caused by the motor accident. The claimant’s WPI was assessed at 9%.
The claimant lodged an application with the Personal Injury Commission (Commission) seeking a review of Medical Assessor Newlyn’s decision. This was allowed by the President’s delegate (Ms Rachel Brittliff) and this Panel was convened to conduct the review.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Newlyn found the claimant to have a reactive attachment disorder before the motor accident. This diagnosis was based on FACS’s concerns of parental drug abuse and child neglect which resulted in out-of-home placement on discharge from hospital.
As there were no current descriptors of the severity of the attachment disorder, assessment was based on the current history. The Medical Assessor found that in the 10 foster placements after the motor accident, the claimant showed reactive attachment disorder symptoms, ODD symptoms, ADHD symptoms and emotional dysregulation. This cluster of symptoms met the criteria for the diagnosis of disruptive mood dysregulation disorder with comorbid reactive attachment disorder and ADHD. The reactive attachment disorder and ADHD were not caused by the motor accident.
The Medical Assessor went on to expand on the reactive attachment disorder, stating that this diagnosis was maintained by multiple foster placements. The Medical Assessor agreed with Dr Rikard-Bell’s formulation that the combined trauma of the motor accident, separation from her nuclear family and multiple foster placements amounted to a series of traumatic events that resulted in the disruptive mood dysregulation disorder.
The assessment of WPI was done using the prescribed methodology of the psychiatric impairment rating scale (PIRS).
First, the PIRS for the motor accident-related diagnosis of disruptive mood dysregulation disorder resulted in a WPI of 7% (1,2,2,2,3,3). Interestingly, no reasons were provided for each of the areas of function.
Second, the PIRS for the pre-existing diagnosis of reactive attachment disorder resulted in a WPI of 0% (1,1,1,1,1,2). Reasons were provided for each of the areas of function.
The Medical Assessor then added 2% WPI, presumably for the reasons he gave, namely “There is a moderate treatment effect from prescribed mental health medicine and support services”.
The final WPI was therefore 9% (7%+2%).

SUBMISSIONS

Claimant

The claimant submits that the Medical Assessor failed to provide any reasoning as to why each area of function was assessed at the particular class under the PIRS for the claimant’s current permanent impairment. It is further submitted that the additional 2% given, is not explained or associated with a calculation or opinion in the certificate reasons.

Insurer

The insurer says the Medical Assessor’s reasoning is provided adequately throughout the certificate, giving examples of the reasoning under each area of function. The 2% uplift was explained by the Medical Assessor as a “moderate treatment effect from prescribed mental health medicine and support services”.
The insurer’s original reply submissions refer to the report of Dr Rikard-Bell dated

18 November 2019 where it was stated at point 10 on page 14:
“Whilst I am happy to provide an assessment of whole person impairment below, it should be noted that as a child develops and changes, the impairment could change dramatically over the following years.”
And further, at point 9 on page 14:
“Whilst the 3% in the next 12 months is the measure for stabilisation and maximum medical improvement, it is possible in the long term that her condition could improve with appropriate management and treatment and if her current foster placement remains stable and long-term.”
The insurer therefore submitted that the assessment of the claimant psychiatric impairment should be deferred pending treatment.

REVIEW OF THE EVIDENCE

General observations

On 7 April 2025, the Panel issued a direction to the parties requesting indexed and paginated bundles of the information they relied upon. The Panel advised that unless documents are uploaded to the review file, the Panel would not be able to read and consider those documents. The parties responded with the claimant’s bundle comprising of pages 1-354 and the insurer’s bundle comprising of pages 1-10.
At its initial teleconference on 11 June 2025, the Panel issued directions requiring the production of the following additional documents:
·        department of Family and Community Services (FACS) notes and records before the motor accident;
·        all school reports;
·        any school counsellor reports, and
·        all reports provided to Medical Assessor Newlyn and Dr Rikard-Bell that have not been included in the bundles before the Panel.
The insurer provided a joint bundle indexed and paginated with page numbers 1-1,001. Contained were the FACs records (volumes 1-4) and the Ulladulla Public School Reports (semester 1 & 2) 2019-2024.
There were also the following reports that were provided to Medical Assessor Newlyn and

Dr Rikard-Bell:
·        Randwick Medical Imaging Department reports dated 23 November 2015;
·        report of Monal Bernal, Paediatrician dated 21 March 2017;
·        report of Janet Manning, Speech Pathologist, dated 11 September 2018;
·        occupational therapy report of Cerebral Palsy Alliance dated 5 October 2018, and
·        Speech and Language Pathology reports by Anna Jones dated 19 March 2020 and 16 December 2020.
The Panel has read the documentation relied upon by the parties. A summary of the documentation relevant to the determination of the permanent impairment dispute is in Appendix A.

RE-EXAMINATION REPORT

At the initial teleconference, the Panel determined that the claimant be re-examined. The re-examination report of Medical Assessors Friend and Jeyasingam is below:
“Who attended the assessment
[CBS] attended and was accompanied by her foster mother, Kelly Cropper.
[CBS] and her mother were at home in Sussex Inlet.
The household includes her foster father Daniel Howard, daughter Soraya and son Hunter, of Kelly Cropper and Daniel Howard and foster daughter, Charli who is about six months older than [CBS].
[CBS] asked to be called Maddie throughout the examination.
The examination was conducted by video teleconference by Assessor Paul Friend and Assessor Neil Jeyasingam.
The purpose of the examination was explained to Maddie and her mother.

HISTORY

Psychosocial history and pre-accident history
Maddie knew nothing of her history prior to the motor accident and nor does her mother Kelly Cropper.
The various supplied documents, including the documents from Family and Community Services, states that her mother is Katrina Evans, whose date of birth is 25 May 1977 and her father was Paul Croft, date of birth 9 June 1963.
Her birth mother Katrina Evans has a history of illegal substance use which included methamphetamine. Her mother was taking methadone at the time of the motor accident and it is unclear whether she was using illegal substances at that time.
Maddie’s birth father, Paul Croft, reportedly was released from gaol in 2011. He had apparently been in gaol for a total of about 19 years. The first time he was incarcerated was for stealing a car, the second time was for assault and the third time was after he shot someone.
It appears he formed a relationship with Katrina Evans soon after being released from gaol. He objected to her using methamphetamine which apparently was a precipitant for her to become abstinent of illegal drugs and then becoming pregnant with [CBS]. During the pregnancy, Katrina Evans received support from the Chemical Use in Pregnancy Service (CUPS).
Little is known about [CBS]’s care or treatment prior to the accident but there were risks of serious harm and neglect reports in 2013 and 2014.
Katrina Evans underwent compulsory urinalysis screening for illegal substances and was reported to be negative for the period 23 September 2014 to 23 January 2015. It appears that urinalysis for illegal substances was ceased after that time.
The involvement with Family and Community Services from the Eastern Sydney Community Services was ceased after 6 February 2015.
There was a subsequent report of at risk of serious harm dated 12 September 2015 which states that the mother was taking methadone, had done so for ten years and was using drugs and driving ‘on the nod’. It states that [CBS] had a broken arm and Katrina was afraid to take her baby to appointments because she was afraid of completing a blood test.
Nothing else is known about the pre-accident history.

History of the motor accident
The NSW SDM Family Risk Assessment Decision Report dated 30 December 2015 states the motor accident occurred when Maddie was run over by a Toyota Hilux utility in the carpark of the Matraville Hospital on 23 November 2015.
Katrina Evans, her mother, was in the hotel playing the poker machines and her father, Paul Croft, was supervising [CBS].
It states that CCTV footage showed Paul allowing [CBS] to run away from him and into the carpark numerous times. It shows that Paul was slow to respond when [CBS] ran off, allowing her to go out of sight in the carpark.
[CBS] was run over when she ran from behind a parked vehicle. The front and rear tyres ran over her abdomen.
She was taken by ambulance to the Sydney Children’s Hospital at Randwick.
The Discharge Referral for the admission 23 November to 2 December 2015 states that she sustained a Grade 3/4 liver laceration, a right displaced posterior ilium fracture with diastasis of the sacroiliac joint, left minimally displaced ilium fracture with sacroiliac joint congruent, small right-sided pneumothorax, multiple abrasions, and a posterior vaginal tear.
The Child Protection Unit reviewed the perineal laceration and felt it was consistent with the other injuries in the motor accident.
The injuries were managed without surgical intervention. The injuries were complicated by a urinary tract infection with low grade fever.
Family and Community Services (FACS) were involved throughout the admission and the decision was made to remove [CBS] from the care of her birth parents on or about 1 December 2015.
On 2 December 2015 she was placed in a short-term placement with an authorised Community Services carer who was a paediatric nurse.
On 31 December 2015 [CBS] was placed with an authorised carer through Wesley Yasmar. The placement broke down due to the carers’ changed circumstances.
On 1 March 2016 [CBS] was placed with a short term authorised carer through the non-government organisation Barnardo’s located on the Central Coast.
She subsequently lived with kinship carers Mr Croft’s stepsister, Mrs Davies and her husband Richard Davies but that broke down.
She was subsequently placed with a series of carers until being placed with Kelly Cropper and Daniel Howard on or about 30 November 2019.
She was placed with Kelly Cropper and Daniel Howard for a weekend for respite from her usual carers. Kelly Cropper and Daniel Howard were subsequently asked if they could take over as her foster parents, to which they agreed.
She has remained living with them ever since.
Kelly Cropper believes that [CBS] had about ten different placements including her birth parents, prior to coming to live with them.
History of symptoms and treatment following the motor accident
Kelly Cropper ceased work because [CBS] was so disturbed and needed a lot of attention. She described her as being very angry, having repeated outbursts, defaecating around the house and smearing it on walls, and screaming for up to six hours.
Kelly Cropper underwent trauma training through the organisation Life Without Barriers to learn about trauma and how it affected children and teenagers.
Her belief was that [CBS] had been neglected before being taken into care.
She has been told that [CBS] has diagnoses of Complex Posttraumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder and signs of Autism.
[CBS], in addition to above behaviours would repeatedly pull her hair to the point of creating bald patches, scratch herself and would get into physical altercations with other children including hitting, pushing and hurting them.
Kelly Cropper believes that [CBS] was initially fearful of being abandoned again and moved onto another foster placement.
[CBS] attended Ulladulla Public School from Semester 2 2019 up until about three quarters of the way through Year 5 in 2024. [CBS] did attend school most days and wanted to attend school. She repeatedly yelled at teachers and fellow students, threatened to suicide or threatened to kill others, punched herself in the head and pulled her hair.
She was jealous of other children and what they owned if she felt it was better than what she had. She had no ability to regulate her emotions.
Ulladulla Public School tried to intervene if her behaviour escalated by getting her out of the classroom and getting her into the Principal’s office. [CBS] quickly realised that they could not force her to leave the classroom and she was openly defiant which led to Kelly Cropper being called to collect her and take her out of the classroom.
[CBS] stole from the home and from other children at school, taking money and other objects.
The behaviours were very similar at home except that her parents could intervene and tried to intervene before she escalated to a point where she could not be controlled.
There was gradual improvement at home but probably little improvement at school.
[CBS] was reported to behave inappropriately towards boys and to older men, being sexually inappropriate. She was assessed as being very immature and in Year 5 at Ulladulla Public School was rated as having about a Kindergarten level of maturity.
Her foster parents were very concerned about would happen when she commenced secondary school.
This led to them changing her to enrol her in the William Campbell School in Nowra. This is a special behavioural school.
There are four children in each class and two teachers for every class.
She remains enrolled in the William Campbell School for 2025 and can remain enrolled up to and including the end of Year 10. The intention is that she will commence Year 7 at William Campbell School.
[CBS] continued to have outbursts, to be very disrespectful of others, to swear both at teachers and fellow students.
She has a very strict regimen and routine. The staff at William Campbell School are allowed to physically remove her from the classroom and take her outside. This intervention is a consequence for her behaviour.
[CBS] continues to be behaviourally disturbed with angry outbursts such as yelling, pulling her own hair, scratching herself, punching herself in the head and threatening suicide or to kill others.
She continues to be jealous of what others have. She is particularly upset if something is unfair and will lash out.
She has very little ability to regulate herself but she does not physically attack others.
[CBS]’s behaviour has gradually moderated during the current year.
[CBS] has repeatedly worn scanty clothing under her school uniform and take off her school uniform at school. Her Kelly Cropper described her wearing long-legged underwear and a midriff top with her abdomen exposed.
Her foster parents now check under her clothing, before allowing her to go to school.
[CBS] finds it difficult to cope with changes in her routine unless she has been forewarned multiple times. Dress up days and crazy hair days at school can be very difficult, because this is a change in routine.
There is a particular week at school known as Book Week wherein the students can dress up as a character in a book of their choosing. This has led to conflict if another student wants to dress up as the same character. [CBS] finds it difficult to tolerate such situations.
[CBS] explained that she gets frustrated with many events and activities that occur at school and at home and does not understand why she feels frustrated.
She recognises that there is a stricter discipline and there are consequences for her behaviour at this new school.
She has been given strategies to try to use, when frustrated, by a counsellor Marissa McGrath who comes to the current school each week. Marissa McGrath commenced treating [CBS] at the Ulladulla Public School in 2024. This treatment will described later.

[CBS] is reminded to use a strategy, to calm down, by a teacher, but if that is unsuccessful she is usually taken out of the classroom to sit in an area near the Principal’s office or to sit outside.
The current school has three blocks of teaching, morning, middle and afternoon. She has teachers for English, mathematics, science and perhaps other teachers. She is a multilevel Year 5/6 class.
Kelly Cropper estimates that she now has about Year 3 level of maturity.
The school has an ongoing behavioural program in which each student can earn ‘green points’ for desired behaviour. This is recorded on a chart in the classroom and is tallied up by a teacher on Thursdays. Achieving sufficient points allows the student to do more ‘fun activities’ on Friday afternoon. These activities can include cooking, bicycle riding, Lego and going out into the nearby bush. [CBS] likes cooking or bicycle riding but cannot currently ride a bicycle because she broke her left arm two weeks ago.
[CBS] has always struggled to make and keep friends. Kelly Cropper reported that they organised two large birthday parties and no children from either of her schools attended. This was attributed to her behaviour at school.
[CBS] was treated by Dr Charles Austin-Woods, paediatrician, who prescribed clonidine and perhaps other medication, but her foster parents felt he was overemphasising the use of medication.
She changed to Dr Mark De Souza, paediatrician in Nowra, who withdrew her from all medications. Her foster parents believe that this a better treatment approach. The medications were unhelpful and at times made [CBS] very sleepy.
She previously had play therapy but this was unsuccessful because she could not describe her own feelings.
She consulted a sexual abuse counsellor in Ulladulla which ended when the counsellor moved to a different job.
She continues with her current treatment with Marissa McGrath.
Details of any relevant injuries or conditions sustained since the motor accident
[CBS] fractured her left arm playing about two weeks ago and now wears a short arm plaster over her wrist.
Kelly Cropper reported that she had broken both bones in her arm, presumably the radius and ulna.
Current symptoms
[CBS] continues to have all the previously described symptoms. The only difference is that she now is aware that there are consequences for her behaviour and appears to now have more capacity to self-regulate.
Current and proposed treatment
[CBS] consults Dr Mark Desouza, paediatrician and Marissa McGrath counsellor each week. Marissa McGrath comes to the school. Marissa McGrath gives her behaviour cards which they read together and talk about how she feels. Marissa McGrath’s talks to [CBS] about strategies that she can use when frustrated or distressed. She talks to [CBS] about how to make friends. Each session lasts for about an hour. Sometimes they do activities such as making figures or models out of plasticine.
[CBS] is not taking any medication.
Her foster parents are trying to arrange for [CBS] to be reassessed at the Far West Children’s Home at Manly but the assessment is not yet organised.
CLINICAL EXAMINATION
Mental state examination
[CBS] was examined as described by video teleconference. Kelly Cropper was present throughout and provided information when asked.
[CBS] was mostly engaged with the re-examination in an age-appropriate manner. She remained in the examination which lasted for about one hour and 40 minutes.
She was offered that she could have a break, a drink or to run around, at various times. She chose to sit in the chair although at times she was fidgety. She was attentive when she was in direct interaction with the medical assessors.
[CBS] was described having repeated periods of frustration, angry outbursts, scratching herself, throwing objects and being very defiant of others, especially adults.
These behaviours occur at home, at school and on the bus to and from school.
[CBS] was initially fearful of being abandoned and being moved to another placement. She was able to state during this examination that she felt secure within her current family, felt that they were doing their best for her and wanted her to be a better person.
She has never had a best friend and has struggled to maintain any friendships. Friendships usually only last a day.
Current functioning
[CBS] gets out of bed at 6.00am and dresses herself. She prepares breakfast which is usually a piece of toast. She brushes her hair, puts on her shoes and socks and watches television until the arrival of the community bus which takes her to school. She usually goes outside at about 7.10am. The bus usually arrives at about 7.20am. She tells her foster parents that the bus has arrived, before getting on the bus.
She prepares her own lunch which can include sandwiches, chips, what she referred to as ‘Ding Dongs’ which are chocolate flavoured biscuits or crackers and cheese and biscuits.
The bus trip is 45 minutes each way to and from school. She is annoyed by the length of time. She tries to read a book or listen to the radio, on the bus.
There are usually 5-7 children on the bus, mostly girls. She can have angry outbursts and scream on the bus, particularly if there is some disagreement or something upsets her such as how others are dressed or how others are talking.
She attends school each day as described.
The school does not have suspensions but can forcibly remove her from the classroom, thereby ensuring that there are consequences for her behaviour.
She, in common with other students, has a behavioural chart at the school which she understands means that she can earn “fun activities”.
The bus collects her from school between 2.50 and 2.55 pm. She arrives home just prior to 4.00pm. She enjoys being on the bus when she is the sole occupant which is the last part of trip because she is the only student from Sussex Inlet who catches the bus.
[CBS] has various chores each day and each week.
Her daily designated chores are to change the kitty litter and unpack the dishwasher which she does when she arrives home.
She next has a shower and watches television until she has dinner.
She plays various games after dinner. These include a tile game called Rummikub or card game called ‘SKIP BO’. There is a third game played with spoons.
[CBS] goes to bed between 7.30pm and 8.00pm.
Kelly Cropper reported that [CBS] needs adequate sleep, 10-10½ hours each night.
She is distressed and irritable if she does not have sufficient sleep, which can occur if the family goes out at night or they are travelling.
[CBS] usually sleeps the whole night but sometimes will talk in her sleep.
She stated when asked that she previously had nightmares which had a content of leaving or going away. She also stated at this stage when asked that she previously had thoughts that her current family might get rid of her. She feels that her current family will always love her and will always want her to be a better person.
[CBS] puts herself to bed and says it takes about ten minutes to get to sleep. She has her own room which she describes as ‘a big room’. Kelly Cropper explained that [CBS] has a big room because she keeps her room neat tidy unlike her foster sister Charli has a smaller room.
She can listen to music in her room.
The weekends have a different routine.
Saturday is ‘chilling out’.
On Sunday the whole family gets together and cleans the house. [CBS] is responsible for cleaning the front door area and the laundry which involves vacuuming, picking up what is on the floor, putting clothes in the laundry basket and wiping down benches.
[CBS] continues to have problems with friendships as described previously. Her ability to study and concentrate have improved.
Her sleep and her nightmares have also improved. She continues to attend school full time.
Comments of consistency
[CBS]’s account and that of Kelly Cropper were consistent throughout and generally consistent with the supplied documents.”

RELEVANT LEGISLATION

Permanent impairment

The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Permanent Impairment Guidelines (effective from 1 June 2018) (the Guidelines).[2]
[2] See s 44 of the Motor Accidents Compensation Act 1999.
Psychiatric Impairment is assessed under the heading “Mental and behavioural disorders” and commence from page 44. These Guidelines apply to motor accidents that occurred between 5 October 1999 and 30 November 2017.
The Guidelines adopt the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides). The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.

Causation of injury

It is necessary for the Panel to consider whether the accident caused or contributed to the diagnosed psychological or psychiatric condition.
Causation is dealt with at clauses 1.5-1.7 of the Guidelines. Those clauses state:
“1.5   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.
1.6    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.
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.”
Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D which provides:
“(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)    …
(3)    …
(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.”

FINDINGS

The Review is a new assessment of all matters with which the medical assessment is concerned.
The Panel, comprised of two specialist medical practitioners, is not required to choose between competing medical opinions and is required to form its own opinion: Insurance Australia Group Ltd v Keen[3] and Insurance Australia Ltd v Marsh.[4]
[3] [2021] NSWCA 287.
[4] [2021] NSWSC 619.
The evaluation should only consider the impairment as it is at the time of the assessment.[5]
[5] Clause 1.21 of the Guidelines.
The Panel refers to the above re-examination report of Medical Assessors Friend and Jeyasingham. The Panel reconvened on 24 September 2025 and discussed the re-examination report findings before collectively making the below determinations.

Diagnosis and Reasons

The Review Panel considered all of the above information from the supplied documents and what was obtained at the examination.
The Review Panel determined that [CBS] had two diagnoses.

Reactive attachment disorder

She reaches criterion as follows:
·        she rarely sought comfort and rarely responded to comfort when distressed;
·        she had angry outbursts and would yell and scream;
·        she had a persistent social and emotional disturbance with minimal social and emotional responses to others and limited positive affect;
·        she had unexplained episodes of irritability;
·        prior to the motor accident there was a history of neglect and deprivation;
·        she was unable to form stable relationships as evidenced by the frequent changes in foster care;
·        she was not determined to have Autism Spectrum Disorder although she could have features of this;
·        these symptoms were present prior to age five years, and
·        the symptoms have been present at least since the time of the motor accident.

Disruptive mood dysregulation disorder

She reaches criterion as follows:
·        she has recurrent angry outbursts and is behaviourally disturbed which is out of proportion to any situation;
·        these outbursts are inconsistent with her chronological age;
·        the outbursts were occurring most days of the week;
·        she can be irritable and angry between outbursts;
·        these symptoms have been present for more than 12 months;
·        the symptoms occur at home and at school, and with peers;
·        she is now over the age of six years and is not yet 18 years;
·        the behaviours are not occurring in an episode of major depressive disorder, and
·        the symptoms are not attributable to the physiological effects of a substance or another medical or neurological condition.

Other diagnoses considered but not found

The Panel considered other diagnoses including post-traumatic stress disorder, ADHD and Autism Spectrum Disorder.
There were insufficient symptoms to reach criterion for post-traumatic stress disorder.
She was able to sit through an examination with minimal irritability or agitation which lasted for an hour and forty minutes, which is not consistent with ADHD.
She did not describe having lots of thoughts in her head.
She was interactive, had emotional affect and although she may have some symptoms consistent with Autism Spectrum Disorder, she did not reach criterion for this condition.

Causation

The pre-accident history is scant given the claimant’s young age of 2½ years at the time of the accident. It is likely that [CBS] was probably emotionally and possibly physically neglected before the motor accident which would warrant consideration of whether there was any pre-existing impairment.
The Panel viewed the motor accident as precipitating the removal of [CBS] from her birth family and the subsequent nine placements before the current placement. The Panel was therefore satisfied that the motor accident materially contributed to [CBS]’ psychiatric injuries, which have been diagnosed above.
There have been no subsequent motor accidents or incidents and [CBS] has not developed the need for any significant medications unrelated to the motor accident.

Permanent impairment

Permanency of impairment

Permanent impairment is defined in the AMA 4 Guides (p.315) as follows:
“Permanent impairment is impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment.
A permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment.”
[CBS] was involved in a motor accident which occurred on 23 November 2015 when she was aged about 2½ years, almost 10 years ago.
Her symptoms have continued. There has been some improvement with the relocation to the current family and school.
The Panel considered that her condition is stabilised and unlikely to change substantially and by not more than 3% with or without medical treatment, in the next 12 months and is permanent.

Degree of permanent impairment psychiatric impairment rating scale

The Panel acknowledges that the assessment must be undertaken in accordance with the PIRS.[6] The Panel recognised some difficulties with this as the development of the PIRS and the examples given in each area of function relate primarily to adults and not young children.
[6] Clause 1.203 of the Guidelines.
For the purposes of impairment evaluation, for the category of adaptation, the claimant was assessed based on her psychological functioning at school.
For the category of concentration, persistence and pace, the Panel factored into account the claimant’s ability to complete tasks set by her parents at home.
The Panel therefore took into account variations in lifestyle due to the claimant’s age, her schooling and complex upbringing following the accident.[7]
[7] Clause 1.220 of the Guidelines.
The determination as to permanent impairment is made in accordance with the AMA 4 Guides and the Mental and behavioural disorders section of the Guidelines.

Psychiatric diagnoses

1. Reactive Attachment Disorder.

2. Disruptive Mood Dysregulation Disorder.

Psychiatric treatment description

Treatment by two paediatricians.

Treatment with clonidine and other medications.

Treatment by a sexual assault counsellor.

Treatment by other counsellors.

Treatment by being placed in a special behavioural school with small classes and a teacher interaction.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	2	Mild impairment. At age twelve years she can attend to her personal care, prepare herself breakfast, make her own lunch, and make her own bed. She needs to be in a very structured environment which is provided by her foster parents and by her current school. Her behaviour would become disturbed if this did not occur.
2. Social and Recreational Activities	3	Moderate impairment. [CBS] does not attend social events. She struggles to cope with change. She can only leave home if there is a specific arrangement and she is supervised by her parents or others.
3. Travel	2	Mild impairment. [CBS] travels back and forth to school on a bus with others. There is behavioural disturbance which is the same type of behavioural disturbance that occurs in other areas of her life. She does refuse to travel by bus and likes to attend school.
4. Social Functioning	4	Severe impairment. [CBS] is unable to sustain long term friendships and all friendships end. She has never had a best friend or a close friend.
5. Concentration, Persistence and Pace	2	Mild impairment. [CBS] was able sit through an examination lasting one hour and forty minutes and to engage with that examination with minimal disruption or fidgeting. Her ability to focus and concentrate at school has markedly improved since she has been placed in a much more structured and strict school environment with a similar routine each day and a behavioural chart to improve her behaviour. She is able to complete daily and weekly tasks set by her parents at home and has the big room because of her ability to keep the room tidy.
6. Adaptation	3	Moderate impairment, when in a specialised environment (behaviour specific schooling). [CBS] was struggling at her previous school which was a mainstream primary school. She has improved significantly since attending the current school which has a much more structured environment, with more supervision (teacher to student ratio of 2/4) and there are consequences (and rewards) for her behaviour. In the opinion of the Panel, because of the very specialised nature of her schooling at William Campbell, her Adaptation is Class 3.
List classes in ascending order: 2,2,2,3,3,4
Median Class Value: 2.5 = 3
Aggregate Score: 16
% Whole Person Impairment: 17%

*%WPI ^{= Percentage Whole Person Impairment}

Psychiatric Impairment Rating Scale - Pre-existing/subsequent impairment

Psychiatric diagnoses	1. Reactive Attachment Disorder.	2. Disruptive Mood Dysregulation Disorder.
Psychiatric diagnoses	3.	4.
Psychiatric treatment description	Nil.

Category	Class	Reason for Decision
1. Self Care and Personal Hygiene	1	No impairment. [CBS] was very young at the time of the motor accident. There is no information about her behaviour.
2. Social and Recreational Activities	1	No impairment. [CBS] again was very young at the time of the accident and there is no information about her behaviour and her ability to undertake these activities.
3. Travel	1	No impairment. [CBS] again was very young at the time of the accident and there is no information about her travel except that she was travelling with her parents at the time of the motor accident.
4. Social Functioning	2	Mild impairment. The Review Panel felt that it was likely that there were problems with her attachment to her parents.
5. Concentration, Persistence and Pace	1	No deficit because she was very young and there is no information about her ability to concentrate and focus.
6. Adaptation	1	No impairment. She was very young and there is no information about this category.
List classes in ascending order: 1, 1, 1, 1, 1, 2
Median Class Value: 1
Aggregate Score: 7
Pre-existing % Whole Person Impairment: 0 %

*%WPI ^{= Percentage Whole Person Impairment}

Apportionment – pre-existing/subsequent impairment:

[CBS]’ pre-existing impairment is 0%.
There are no significant events post-accident so there is no requirement for any apportionment considerations.

Effects of treatment

[CBS] has significantly benefited from the current counselling, the placement with her current foster family and particularly with the school which has an environment with a strict routine so that she knows what to expect each day.
The Panel added 2% for the effect of all of these treatments which are considered to have a moderate treatment effect,
·current WPI 17%
·apportionment 0%
·effect of treatment 2%
·final WPI 17 + 2 =19%

CONCLUSION – PERMANENT IMPAIRMENT

The degree of permanent impairment caused by the motor accident is 19%.
Permanent impairment ratings take symptoms into account, however the percentage permanent impairment is not a direct measure of disability.
The claimant’s WPI as a result of the motor accident is 10% and is greater than 10%. The Panel’s psychiatric diagnoses and impairment value findings differed to Medical Assessor Newlyn. The Panel therefore revokes the certificate of Medical Assessor Newlyn and issues a new certificate in accordance with the Panel’s above findings and reasons for assessment.

DE-IDENTIFICATION OF THE CERTIFICATE AND REASONS

Following the re-examination of [CBS], the Panel was of the view her name should be redacted from the published Panel’s decision. This was because [CBS] is a child (12 years) and the sensitive nature of her upbringing and history may cause her or others harm, should her name be publicly disclosed.
The Panel is of the view that redacting the claimant’s name would serve the proper administration of justice while protecting the safety and wellbeing of the claimant affected by the publishable decision.
The Panel invited submissions from the parties. None were received.
The Panel therefore directs that, pursuant to Rule 132 of the Personal Injury Commission Rules 2021, the claimant’s name be redacted from its certificate and reasons before publication.

APPENDIX A – Summary of relevant documentation

The report of Dr Chris Rickard-Bell, Child and Adolescent Psychiatrist, dated 18 November 2019 states the [CBS] was examined with Kelly Cropper, her foster carer, and Yasemin Turkman, the Life Without Barriers caseworker.
The motor accident occurred when [CBS] was with her parents, Katrina Evans and Paul Crofts at the Matraville Hotel, where the parents were playing poker. [CBS] was just over two years old.
At approximately 3.10pm, [CBS] was struck in the car park by a Toyota Hilux when she ran from behind a parked vehicle. She was run over by the front and back tyre, which ran over her abdomen.
She was taken to the Sydney Children's Hospital where she was determined to have significant injuries including grade 3/4 laceration of the liver, right displaced posterior ilium, left minimally displaced ilium fracture, small right pneumothorax, peroneal lacerations, and multiple abrasions and urinary tract infections.
There was limited history about the accident. [CBS] was able to say the car drove over her, but did not remember where she was exactly hurt. She thought it may have been her arms and legs.
She could not remember being in hospital.
Her main fear was getting hurt as she remembered the motor accident.
She, at the time, thought that her biological mother was dead.
Yasemin Turkman is also the case manager for her older half-brother. She was concerned about [CBS]'s cognitive development and whether she was learning.
Kelly's main concern was [CBS]'s behaviour.
They both believed [CBS] had suffered severe neglect. There was FACS involvement with the older brother who was placed with the maternal grandmother.
She had occupational therapy which ceased a year ago.
[CBS]'s mother was addicted to methadone and had been previously taking morphine.
[CBS] was neglected by her parents following the motor vehicle accident and was removed from parents' care. There have been 10 placements since she was removed at about age 2½ years. The current placement with Kelly Cropper, commenced in November 2018.
The placement immediately prior had broken down because of [CBS]'s behaviour.
Kelly was providing respite for [CBS] for the previous carer, in November 2018. Kelly stated she could scream for six hours, bang her head, hit her head on her arms, masturbate and pinch herself.
Her behaviour initially was very bad. She was distressed and there were continued behaviours of screaming, banging her head, scratching herself and masturbating.
The behaviour gradually settled over time and those behaviours are largely gone.
At school, [CBS] screams and has no respect for the teachers. One casual teacher was unable to cope and resigned.
Her learning appears to be delayed. She will repeat kindergarten.
She was taking medication in 2018 and was sedated.
[CBS] was removed from parents' care at the hospital.
FACS were involved with her older brother, who from the age of two years was placed in the care of the maternal grandmother. [CBS]'s mother and father had significant drug abuse problems.
They were concerned that [CBS] may have learning difficulties and some intellectual delay, but there has been no formal testing.
She sleeps well and has a normal appetite. Her weight is stable. She is growing, but she is small for her age. Her mood is 70% happy and 30% angry.
Dr Rickard-Bell made a diagnosis of exacerbation of reactive attachment disorder and adjustment disorder arising from the injury sustained in the motor accident.
Dr Rickard-Bell assigned a whole person impairment of 13% and made a 2% deduction for the pre-existing reactive attachment disorder, giving a final whole person impairment of 11%.
The ambulance report dated 23 November 2015 states there are abrasions and bruising to the right flank, right wrist, and a deformity, possible fracture. Bilateral lower limb abrasions, no loss of consciousness.
It records a Glasgow Coma Scale score of 15 on two occasions.
The Emergency Department notes from the Sydney Children's Hospital for the admission on 23 November 2015 lists the injuries as:
High-grade 3/4 liver injuries, large laceration in segments 4A and 4B and likely small focus of extravasation inferiorly within the laceration
Moderately comminuted and displaced fracture of the medial left ilium adjacent to sacroiliac joint with moderate diastasis of the left sacroiliac joint. Small to moderate adjacent haematoma
Minimally displaced fracture of the right ilium adjacent to the sacroiliac joint with mild diastasis
Small right pneumothorax.
Slightly hypertensive and tachycardic.
Both parents are present. The mother is on a methadone program. They both left the hospital for an hour for undisclosed reasons. The initial history was changed with the mother being in the car when the mother was in the hotel.
There was a vaginal tear posterior.
The chest x-ray showed a minimally displaced fracture of lateral aspect of the right eighth rib.
The clinical notes from the outpatient department of the Children's Hospital at Randwick dated 15 May 2015 state that the mother is on methadone and [CBS] is currently living with her mother. She eats solids and breast milk at night and is thriving well.
Developmentally she can climb stairs, run, speak in sentences, knows her name and age, turns the knob of her door and undresses herself.
She is vaccinated for age.
The Children's Hospital Randwick discharge referral for the admission 23 November 2015 to 2 December 2015 states that as a result of the motor accident, she sustained grade 3/4 liver laceration, right displaced posterior ilium fracture with diastasis of the sacroiliac joint, left minimally displaced ilium fracture with sacroiliac joint congruent, small right-sided pneumothorax, multiple abrasions, and a posterior vaginal tear.
The child protection unit reviewed the peroneal laceration and felt it was consistent with the other injuries in the motor accident.
All injuries were managed without surgical intervention.
She developed urinary tract infection with low-grade fevers.
FACS were involved throughout the admission and she was previously known to them. She was discharged in the care of a FACS approved carer.
The entry by social worker Ellen Robinson dated 30 November 2015 states that the father stated that the mother had gone out to get her methadone and would be back soon.
He lives with his younger brother in Waterloo. [CBS] is his only child.
FACS became involved because his brother called FACS. He believes his brother is jealous that he is turning his life around.
The entry by Ellen Robinson, social worker, dated 30 November 2015 with the mother states the mother was holding the patient and trying to keep her not weight-bearing. The mother explained she would like to go to Jarrah House and her partner supports this. She had previously attended this service.
There was a telephone call to CUPS (Chemical Use in Pregnancy Service) to Janet, who states she has known mother for many years, and since that time, her ability to care for her daughter has increased. Janet has concerns about the patient and has liaised with Jarrah House.
A telephone call was made to Laura at FACS. Laura had requested that the mother and father complete urinalysis for the last few days, but this had not been done.
The entry by Maria Coelho social worker dated 24 November 2015
The family background is that the mother, Katrina, is aged 38 years and the father, Paul, is aged 53 years.
Katrina has a son, Jack, age 11, from a previous relationship, and a daughter, Angel, from this relationship, who died age 20 weeks during pregnancy in February 2015.
The mother has been on methadone for eight years and was linked to the Rankin Court Clinic at St. Vincent's Hospital.
The first child is in the care of the maternal grandmother, which was court-ordered and has been in the grandmother's care most of his life.
She was devastated about this.
She has been linked into the CUPS (Chemical Use in Pregnancy Service Clinic) program throughout her pregnancies with [CBS] and Angel.
She has been with the father, Paul, for approximately four years and they were happy to be able to have children.
The stillbirth was traumatic for the mother and father. Mother stated the genetic problem was identified and the baby could not survive. She felt guilty.
She found it difficult to cope with her grief.
The father had previous conviction for violent crime but the mother stated he turned his life around.
The mother is a sole parent living on her own with her daughter but the father has daily contact. She receives a parenting payment and is a full-time carer.
The father was a truck driver until recently and is currently looking for work.
The mother has contact with her mother and with her son Jack.
There have been contacts with FACS over the years. Initially with Jack, when he was removed from her care. More recently, FACS became involved with her inability to cope with the stillbirth in relation to the report she believes was made by the father's brother.
She is afraid that [CBS] would be removed from her care.
The FACS records include the following:
The entry dated 22 December 2015, Sydney Children's Hospital from the information provided by carer Ivy Sutton states [CBS] went to the orthopaedic registrar at Sydney Children’s Hospital. [CBS] can be picked up from her parents during contact and sit in their lap. She does not need follow-up and she does not need to remain in the stroller/wheelchair unless she is taken out. Her weight was 11.3 kg.
The initial occupational therapy report by Sally Jennings, occupational therapist, Cerebral Palsy Alliance dated 5 October 2018 states “In summary, Maddie's a friendly little girl settling well into her current foster placement. Her behaviour is settled with implementation of consistent routines, boundary setting, and discipline expectations.
She would benefit from further assistance in assessing challenging behaviours at preschool and a transition into kindergarten 2019.
She is developing skills in preschool, including pre-writing, scissors use, handwriting, pencil use, and grasp. She would benefit from a program to develop fine motor skills.
The report by Mona Bernal, paediatrician, at Goulburn Base Hospital, dated 21 March 2017 lists the problems as:
- Child in foster care
- Behavioural differences
- Previous concerns with seizure
- Speech delay and concerns about diabetes
It states that [CBS] continues to have temper tantrums and meltdowns when she does not get her own way. This can happen without clear trigger. She will throw herself on the floor and can hit her head repeatedly on a smooth surface. She has episodes with rolling back of her eyes, but is not floppy during these episodes and does not lose body tone.
Her speech is improving with less screaming, but can still do high-pitched noises when she gets upset or whenever she wants attention. She is still not fully toilet trained.
She repeatedly draws the same picture over and over and is obsessed with Paw Patrol toys. She is affectionate and initiates hugs and kisses.
She is having speech pathology with a speech pathologist in Yass.
The initial speech pathology assessment report by Janet Manning, for an assessment that was conducted on 11 September 2018, states that overall she presents with moderate speech sound delay, age-appropriate errors and mild receptive and expressive language skills delay. This may impact her communications with partners.
The report by Dr. Chris Rickard-Bell, Child and Adolescent Psychiatrist, dated 17 January 2022, is a re-assessment of [CBS] with her foster carer, Kelly Cropper, and caseworker, Corrine.
[CBS] sat on Kelly's lap, was friendly and cooperative.
She engaged well and was cooperative with the interview.
Her cognitive function was normal, her thoughts were logical.
She liked making things. She recently made chocolate crackles. She likes to play in the kitchen at school. She plays with some friends at school. She does art and craft with her sister Charli. She plays card games with Hunter and card games with Kelly, but does not do much with Daniel.
She does not have a clear memory of the motor accident. She wanted her mother to have another baby and to have an Xbox.
[CBS]'s behaviour was very challenging in that she would scream for hours, bang her head and scratch herself. She was masturbating when first placed with the current foster carers.
The behaviours gradually improved, but there are still tantrums every week or every few days.
There are still major problems with outbursts and [CBS]'s dysregulation is severe.
She has been variously diagnosed as having ADHD, ODD, reactive attachment disorder, PTSD, and complex trauma.
Corrine has been [CBS]'s case manager. She has been involved in [CBS]'s management since 2019.
[CBS] has developed a good attachment to Kelly and the placement is more stable than the previous 10 placements.
It took about two years for the initial behavioural disturbance to start to improve.
One of [CBS]'s placements was with her maternal grandmother who died.
The motor accident occurred when the parents were not supervising [CBS] well.
There had been attempts to contact the parents, her brother and aunt which were unsuccessful.
There were difficulties with neglect and early attachment development. The motor vehicle was a major trauma.
[CBS] is very frightened of vehicles.
[CBS] is currently in a special class and she does not cope with mainstream schooling. Her IQ is low to average and her grades are probably below the expected level. She finds it difficult to make and maintain friendships. She has behaved sexually inappropriately and has been masturbating herself.
She was anxious when travelling in the car for the first six months, screaming a lot, but currently can travel without screaming, but still feels anxious.
She is no longer self-harming.
She has panic attacks and the slightest frustration can trigger a tantrum. She is constantly fearful about being abandoned. She is quite needy in terms of food, sometimes overeating.
It states that [CBS] had a reactive attachment disorder prior to the motor accident.
The current diagnosis is disruptive mood dysregulation disorder.
Dr Rickard-Bell’s separate report dated 17 January 2022 assigns a whole person impairment of 19%, to which he adds 1% for treatment effect and deducts 2% for the pre-existing reactive attachment disorder. Final whole person impairment is 18%.
The Personal Injury Commission certificate by Medical Assessor Thomas Newlyn dated 9 February 2023, states there is a whole person impairment of 9 % for the condition of disruptive mood dysregulation disorder.
[CBS] was accompanied by her father, Daniel Howard, and was examined by video teleconference.
She is in the multi-categorical class for students with behavioural learning issues. She has oppositional problems. She is throwing things less and has more good days than bad days.
If things do not go her way, there may be behavioural issues.
The foster mother is a full-time disability support worker. Foster father works at Bunnings.
Adam Howard is a son from foster father's previous marriage, He lives 140km away but has contact with [CBS].
Thalia is the foster mother's 21-year-old daughter from a previous marriage and lives in Wollongong with her husband-to-be. She has regular contact with [CBS].
Daniel is the foster mother's 19-year-old son, is autistic. He is non-communicative. He works in Bunnings with his stepfather.
Soraya is the foster father's 14-year-old daughter who gets on well with [CBS].
Hunter is the foster parents' 13-year-old son who is like a brother to [CBS].
Brandon Prowse is 19, has weekend contact with the family. He lives with the other son Lachlan, works in aged care.
Charli Prowse is aged 10 years and gets on well with [CBS].
Mr and Mrs Howard were respite carers of nine children before [CBS], who was the last to be fostered into their family.
The current symptoms as reported by the foster parents are concerned about previous reports of inappropriate touching and broken bones. Wiping of faeces on the wall ceased two years ago.
She continues to have problems with following directions, mostly from father, but follows mother's directions more often.
She can be attracted to doing the wrong things.
She may dance inappropriately with older male students at school.
She is taking medication to help her sleep at 7 p.m.
She said she has been crying and emotional recently.
The current medications are Clonidine, 25 mcg morning, 11 am and 2 pm and 100 mcg at 7 PM.

Assessor Newlyn makes diagnoses of Disruptive Mood Dysregulation Disorder, Reactive Attachment Disorder, Attention Deficit Hyperactivity disorder of a combined type. She in addition had disruption of nuclear family followed by multiple foster placements.
The reactive attachment disorder was present at the time of the motor accident. The diagnosis was based on FACS concerns of parental drug abuse, child neglect resulting in out of home care placement.
After the motor accident, she showed symptoms of reactive attachment disorder, ODD symptoms, ADHD symptoms, and emotional dysregulation.
Assessor Newlyn makes an assessment of whole person impairment of 7% currently without providing description of why he has allocated the values in the various categories.
He makes a pre-existing whole person impairment of 0% without a description of how he assigns the categories.
It states there is a moderate treatment effect from the prescribed mental health medicine.
It states the whole person impairment is 7% plus 2% which equals 9% but he does not explain how he achieves the 2% but presumably this is the treatment effect.
The clinical records from the Sussex Inlet Medical Practice 19 February 2019 to 5 November 2024 include the following.
The entry dated 30 September 2019 states there is a behavioural problem.
The entry dated 23 December 2020 includes prescriptions for clonidine hydrochloride.
The entry dated 6 December 2022 states the diagnoses are Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder.
There are various prescriptions for clonidine in the clinical notes.
The clinical notes of Dr Charles Austin-Woods, child and adolescent psychiatrist, include the following.
The report dated 12 November 2020 states [CBS] has benefited from clonidine, but the dose needed to be reduced because of excessive sedation.
The report by Dr Charles Austin-Woods dated 12 January 2021 states she wakes up feeling refreshed. There have been some difficulties at school. There is some splitting with students due to concerns from teachers about some students being unhelpful. She seems to feed off that.
She is quite behind in her work from treatment with the speech therapist.
She struggles with her lying. She has been writing lines which have been helpful and also with the literacy. There is a lot of oppositionality.
The report by Dr Charles Austin-Woods, Child and Adolescent Psychiatrist, dated 14 September 2021 states there has been an issue with searching sex on YouTube. An older special needs student smashed a window and attempted to assault the teacher. Maddie thought she was going to be hurt.
Foster Mother believes the current class situation is unsuitable.
The report by Dr Mark De Souza, Paediatrician dated 23 October 2019 states [CBS] has been in the current care arrangement for 11 months.
The concerns about her:
Short attention span and trouble completing tasks, being impulsive and reacting to provocation
Falling behind academically and maybe is 1-2 years behind in kindergarten class.
She is in a multi-categorical class, which suits her behavioural needs and need for educational support.
She likes to be in control of her environment and unexpected changes can result in rapid escalation of reactive behaviour, including violence to others and self.
She has trouble making friends due to her controlling reactive behaviour. She is described as being unbelievably positive 90% of the time.
There is clear anxiety about abandonment. She has some withdrawal and flight responses in anxious situations.
These characteristics are common in out-of-home care children, especially where there has been complex trauma.
The report by Dr Mark De Souza, paediatrician, dated 7 November 2019, states [CBS] is causing significant havoc at school with a significant amount of defiant, oppositional behaviour, tantrums, and screaming, and has been excluded from school for several days.
She is anxious about coming to this appointment and needed to be bribed with face painting.
There is current emotional lability. She will be trialled on fluoxetine, 5 mg.
She had reasonable social interaction but behaved in an immature way and her language is immature.
Her height is 111cm and her weight 17.5kg, which were both P 5.
The report by Dr Mark De Souza, paediatrician, dated 24 May 2024, states the diagnoses are low average intellectual ability, ADD, and post-traumatic stress disorder.
Her foster mother is concerned she may have some evidence of Autism Spectrum Disorder.
She had a period of time without medication when supplies ran out and there was an improvement in the characteristics.
Stimulants should only be prescribed with caution, given that she is thin and might lose her appetite. It was decided to leave her unmedicated.
She is in a support Year 5 class. She is easily aroused by negative comments, which may result in prolonged outbursts.
Her mother gives her jobs to do when she is upset.
Her height is 138 cm (P25) and weight 29 kg (P10). She is slim but normally nourished.
The further records from Family and Community Services include the following entries.
The carer report by L. Altaire Harris, dated 4 January 2016, states that in her kindergarten class, it is noticed that she sometimes does appear to respond if there's background noise. This is felt to be common in three-year-olds.
She has been attending Little Coasties Kindergarten and has settled in well.
Her behaviour has changed in the last two weeks of April, such that she is calmer, less destructive, and there are occasional incidents where she demonstrated age-appropriate self-regulation, is becoming the rule more than the exception.
There are tantrums, occasionally bedtime, when she's not allowed to play outside.
There's a single occurrence of screaming. This was after contact with grandmother and other family members.
She was left in the room until she quietened down. She screamed a few more times, then came to the gate.
In general terms, the scream has been replaced with tantrums, lying on the floor, rolling, kicking with raised voice.
She usually works herself out of these by bedtime or the afternoons when she is tired.
In the car they use a DVD player to play various music from various television shows.
She can throw things around the car after about 15 minutes.
It states in the school holidays, she spent a lot of time with the foster brother, Finn, who is six years old. She has bitten twice and occasionally hit and pushed with a foot, which is regarded as normal sibling behaviour, nothing like the first month.
She is considered no longer would be aggressive, and it is reasonable to leave the two of them alone in the room together.
She is getting on better with the dog, but she is not left alone with it. She occasionally pulls the dog's tail.
She has difficulty controlling her impulses, but is responding more frequently to requests to stop an action or activity, such as climbing on tables or slapping at her reflection in the glass of pictures, or hitting the dog.
The kindy class teachers noted that she does not always appear to hear them when there is background noise, and there are times when she appears to be too involved to pay attention, which is common for three-year-olds. She enjoys playing outside and having play dates with children, likes face painting, drumming, trampoline, craft and bush walks.
She can still be attention seeking when the carer is engaged with conversation with Stephen. She may even talk over Stephen and pull at me for attention, or climb on me.
She tends to talk in her three-year-old bubble, one sentence with no specific request, and then walk away. It is improving, and Stephen is making an effort to get down to [CBS]'s eye level.
Her bedtime has been brought forward 30 minutes, usually getting to sleep by 6:50 p.m.
She sometimes has a small tantrum and rolls on the bed and makes noises and kicks the wall beside the bed, but then quickly moves settle and get to sleep.
She is more unsettled after the contact day on Thursday. She's reluctant to nap and fusses at bedtime and can have a prolonged tantrum.
She comes frantic if the carer leaves the room.
The contact visit report for the contact with maternal grandmother, maternal aunt, sibling, and maternal cousin on 13 April 2016, states [CBS] was shy when her grandmother arrived and hid behind the carer's legs. She was coaxed out and slowly approached the grandmother and aunt.
[CBS] hugged her aunt.
The aunt played with her on the floor and tried to engage with toys and conversation, and she responded.
She became more interactive with the aunt as it progressed.
They tried to involve her sibling Jak, but [CBS] was reluctant and did not move.
She did not initiate contact with her grandmother until the end of contact where she sat near grandmother on the arm of the lounge.
Towards the end, [CBS] was walking around the room, going from toy to toy, but did not particularly engage.
After the end of the visit, [CBS] hugged her aunt and encouraged her sibling to hug, which she did. Grandmother gave her a hug and a kiss, and she hugged her cousin.
She sat in the baby rocker, clipped herself in. The family left, she made no effort to move and did not appear to be upset.
The case plan states that she is in Barnardo’s placement on the Central Coast, which commenced on 1 March 2016 after the previous placement broke down.
She enjoys a range of food, including toast, porridge, and vegetables.
She is usually shy when she meets new people, but becomes more confident after she knows a person. She has strong receptive communication skills.
She is starting to say three words together, such as, "I like toes."
She initially did not play with toys, but rather played with her fingers and toes.
She's been learning how to play with toys and enjoys playing with a doll, building blocks, children's tea set.
She enjoys spending time with the carer's five-year-old son who lives at the placement.
She is nervous when the doorbell rings and sometimes squeals when this happens.
The entry, which appears to be dated 6 January 2016, states that she was removed from parents' care on 1 December 2015 because of concern about Mr. Croft's capacity to adequately supervise [CBS] and the impact of this on her, for example, being run over by a car.
There was concern about [CBS]' drug use. She has a long history of use of heroin and cocaine. [CBS] and Mr. Croft have been asked multiple times to attend urine analysis but failed to attend.
There was concern about [CBS]' dishonesty during the assessment process.
She was removed from her parents' care on 25 November 2015.
She was placed with Community Services Carer Ivy Sutton from 2 December 2015 to 31 December 2015.
She was placed with current carer Colleen Wigg on 31 December 2015.
The contact record apparently dated 3 December 2015 states the family have been on the run.
The caller rang helpline and someone has gone to the home about two weeks ago.
The police initially went there and then welfare came. [CBS] looked healthy and looked up and laughed at her, but there are concerns about neglect as Katrina has been on methadone for nine years, and there are concerns in relation to drugs.
There are times when [CBS] has run out behind cars and almost been run over.
The mother will sit there and does not appear to act quickly to stop [CBS].
She is in hospital, has been run over by a Toyota Hilux four-wheel drive at 3 p.m. yesterday in a hotel car park.
The caller states the family are no longer on the run, she's in hospital.
The caller made their first report last year, as mum was using drugs and they were concerned about neglect.
There are concerns about discipline, such as [CBS] banging on the door of the glass wall, which gets louder, and Katrina just sits there and doesn't respond.
The family asked to do a urine drug test and they said no.
The report dated 12 September 2014 states that Katrina is using drugs, was driving under the influence while [CBS] was in the car and almost crashed.
[CBS] recently broke her arm after falling off a bed.
Her sibling Jak is in the care of maternal grandparents until age 18, being removed from his mother's care on 12 April 2005.
The family network is listed in the DOCS records.
Katrina Evans, mother date of birth is 25 May 1977 and lives at Kingsford.
Paul Croft, father, date of birth is 9 June 1963 and lives in Waterloo.
Christina Evans, date of birth 7 August 1946, is the maternal grandmother and lives in Hillsdale.
Jak Evans, date of birth 18 December 2003, lives with the maternal grandmother, is the brother. Maternal grandmother has parental responsibility of Jak at Hillsdale.
[CBS] has lived with her parents since birth.
Paul Evans has not always been present and residing in the home, but has been constant in her life.
The accident occurred when the family was at the Matraville Hotel. The mother was playing the poker machines in the hotel. The father was supervising [CBS].
CCTV footage shows the father allowing [CBS] to run away from him in the car park numerous times and bearing slow to respond when [CBS] runs off, allowing her to be out of site in the car park.
There are three significant risk of harm reports between 4 May 2013 and 24 November 2015, and four risk of harm reports in relation to [CBS]:
Lack of supervision in [CBS], including [CBS] being hit by a car
Concerns about [CBS] drug use
Lack of medical treatment after [CBS] broke her arm.
Concern about Mr. Croft's criminal history
Concerns about an unsafe person residing in the home.
[CBS] lived with her parents, [CBS] and Mr Croft since birth. Mr Croft was not always present and has not been constant in life.
[CBS] was assumed into care on 1 December 2015 and until 2 December 2016 remained at the Sydney Children's Hospital.
On 2 December 2015, she was placed in a short-term placement with an authorised community services carer who was a paediatric nurse.
On 31 December 2015, [CBS] was placed with an authorised carer through Wesley Almar. This placement has broken down due to the carer's changing circumstances and [CBS]'s behaviour.
On 1 March 2016, [CBS] was placed with a short-term authorised carer through the non-government organisation Barnardo's. The placement is located on the Central Coast.
Community Services have assessed Mr Croft's stepsister, Mrs Davies and her husband Richard Davies as relative kinship carers. Their assessment sessions on 16 and 24 February 2016 and 15 March 2016. It was concluded that Mr. and Mrs. Davies would meet [CBS]'s long-term needs. They agreed to the placement but need to complete their carer training which is currently being arranged.
Contact with Community Services
Community Services proposes that there is supervised contact to occur between [CBS] and her mother and father for a minimum of four times each year to occur at the same time.
Community Services proposes contact between [CBS] and Jack, her half-brother, during school holiday periods.
Community Services propose supervised contact between [CBS] and her maternal grandmother during school holiday periods at the same time as Jack.
On 8 December 2016, Bidura Children's Court made an interim order allocating parental responsibility of [CBS] to the Minister until further order.
The report to the Children's Court, dated 3 November 2016, states, since the final order, [CBS]'s had three placements. Firstly, a short-term placement in the Newcastle area with agency carers.
In June 2016, she moved to the Goulburn area to commence a long-term placement with relatives.
The placement ended in October 2016, and [CBS] now lives with authorised carers in the Goulburn area.
In April 2016, [CBS] had a comprehensive dental examination, which said she did not require further follow-up.
In July 2016, she had a comprehensive hearing assessment, and the outcome was this was essentially normal hearing.
During a health assessment, [CBS] was identified as having an unusual gait, possibly due to an early motor accident, and a high-pitched squeal.
She was referred to attend speech therapy and occupational therapist.
The placement with relatives in Goulburn occurred in June 2016, and by September 2016 the carers advised Family and Community Services they're unable to meet [CBS]'s needs for the long term and in combination with grief issues decided to relinquish care of [CBS].
She commenced a new full-time placement on 31 October 2016. This is in the Goulburn/Yass area on a farm.
[CBS] has had one supervised contact with her parents in Goulburn. Both parents are appropriate in their interactions and behaviours towards [CBS].
She has had one supervised contact with her older brother Jack and maternal grandmother aunt and cousin, at the family's home in Sydney which lasted four hours.
There have been three risk of serious harm reports and neglect including one dated 3 May 2013, which the mother, Katrina, who has had a previous child removed for care. Her mother is on the methadone program, as is the father of the child. She's been engaged with the chemical use in pregnancy service.
The risk of serious harm report dated 12 September 2014 during which the caller states the mother on methadone has been so for seven years.
She is also using drugs and driving on the nod.
[CBS] has a broken arm and Katrina is afraid to take her baby to appointments because she is afraid of completing a blood test.
The risk of serious harm report dated 15 October 2015 alleges Katrina has recommenced using drugs in the last six months, including heroin. She has lost weight recently, has scabs on her face and often is on the nod.
Katrina is trying to avoid having urinalysis testing and Paul and Katrina are not supervising [CBS] adequately during an incident, including during an incident which [CBS] ran onto the road and a car had to brake suddenly to avoid hitting her.
Jack Evans, their oldest son, was removed from Katrina's care on 12 April 2005 due to Katrina's drug use, an inability to complete rehab, violence in the family home, and concerns about Katrina's ability to care for Jack's basic needs.
The record of a home visit dated 25 February 2015 states Paul and Katrina were both playing with [CBS].
Katrina was upset. She explained she had lost the baby she was pregnant with. The baby's brain was not developing. The baby is called Angel and there will be a funeral.
She stated that CUPS were supportive.
Paul stated he came out of gaol in 2011 following a 19-year stint. He shot someone and was around his third time incarcerated, the first for stealing a car, the second for assault.
He has finished his parole, but still has a good relationship with the parole board.
He was able to obtain employment as soon as he was released from gaol.
He met Katrina not long after coming out of gaol, and moved in with her when and found out she was using ICE.
He told her that she had to come off drugs or he would not stay with her. Katrina ceased drugs and became pregnant with [CBS].
The report from DOCS dated 2/3/2015 states that Katrina Evans has had urinalysis appointments between 23 September 2014 and 23 January 2015, which have all been clean.
The report by Katherine Lee, Child Protection Case Worker, Eastern Sydney Community Services, dated 6 February 2015, which is addressed to Katrina Evans and Paul Croft, states that the Family and Community Services case regarding [CBS] has been closed as of this date.
The results from the school report from Ulladulla Public Schools, Semester 1, 2019, is as follows:
English
Effort: Basic
Overall achievement: Basic
History and Geography
Effort: Basic
Overall achievement: Basic
Science and Technology
Effort: Sound
Overall achievement: Sound
Mathematics
Effort: Basic
Overall achievement: Basic
Personal Development/Health/Physical Education
Effort: Sound
Overall achievement: Sound
Creative Arts
Effort: Sound
Overall achievement: Sound
Teacher comments are that she is usually cheerful and energetic and has made some progress in all areas.
She interrupts class routines, distracts others and is reluctant to complete classwork without teacher assistance.
She is always eager to use classroom computers.
She needs to ensure she follows all instructions promptly and follows class rules and routines.

She has made new friends and is working towards being a more independent class member.
Days absent: 18
Attendance percentage: 78%
The report from Ulladulla Public School, 2020 Semester 2, is reported as follows:
English
Effort: Basic
Overall achievement: Choose an item
Human Society and its Environment
Effort: Basic
Overall achievement: Individual program
Science and Technology
Effort: Basic
Overall achievement: Individual Program
Mathematics
Effort: Basic
Overall achievement: Basic
Creative Arts
Effort: Basic
Overall achievement: Basic
Personal Development/Health/Physical Education
Effort: Sound
Overall achievement: Sound
Whole days absent: 15
Partial days absent: 2
The class teacher comments are:
Maddie continues to be a happy, lively student in the classroom.
She seeks the attention of her peers and adults, and this sometimes results in difficulty waiting a turn.
She has completed and actively participated in all classroom activities.
She is still struggling with authority at times, but she is trying to be more respectful to the people around her.
She demonstrated growth in term three, but has struggled in term four with changes in her medication and subsequently regulating her emotions and oppositional behaviour.
The school report for Ulladulla Public School, Semester 2, 2022, is as follows:
English
Overall achievement: Basic
Effort: Sound
Human Society and its Environment
Overall achievement: Basic
Effort: Basic
Science and Technology
Overall achievement: Basic
Effort: Basic
Mathematics
Overall achievement: Basic
Effort: Basic
Creative Arts
Areas of learning: Basic
Personal Development, Health and Physical Education
Overall achievement: Sound
Effort: Sound
Two whole days absent, no partial days absent, overall percentage attendance 97.8%.
The class teacher’s comments are that she is a happy and lively student, participating in all aspects of school life. There has been growth in her ability to make and maintain friendships.
She still at times has difficulty regulating her emotions, but there has been significant improvement of play in the classroom and playground.
She is accepting of redirection from adults and is beginning to use friendships to support her emotional needs.
She has grown in all academic areas.
The school report for Ulladulla Public School, Semester 2, 2023
English
Overall achievement: Occasional
Effort: Sound
Human Society and its Environment
Overall achievement: Frequent
Effort: Sound
Science and Technology
Overall achievement: Frequent
Effort: Sound
Mathematics
Overall achievement: Beginning
Effort: High
Creative Arts
Overall achievement: Frequent
Effort: Sound
Personal Development, Health and Physical Education
Overall achievement: Occasional
Effort: Sound
Whole days absent: 4
Partial days absent: 0
Percentage attendance: 94.2%
The general comments are that Maddy starts today full of positivity and enthusiasm.
She has respected the classroom rules by raising a hand and waiting her turn to speak.
She will continue to work on conflict resolution strategies next year with support of teachers and school learning support officers.
She needs to be encouraged to focus on work habits and manage her emotions so she can achieve her full potential.
The school report for Ulladulla Public School, Semester 2, 2024 - Year 5:
English
Overall achievement: Frequent
Effort: Sound
Mathematics
Overall achievement: Occasional
Effort: Basic
Human Society and its Environment
Overall achievement: Occasional
Effort: Basic
Science and Technology
Overall achievement: Frequent
Effort: Sound
Creative Arts
Overall achievement: Frequent
Effort: Sound
Personal Development, Health and Physical Education
Overall achievement: Frequent
Effort: Sound
Whole days absent: 18
Partial days absent: 1
Percentage of attendance: 69.8%
The general comments are she is a vibrant and lively student and when settled exudes enthusiasm and brings a sense of fun and energy to class.
She relishes the opportunity to socialise and enjoys being the centre of attention.
She can be engaging and pleasant at these times and enjoyable to be around.
Her social, emotional and behavioural goals were centred around developing strong interpersonal relationships and propagating healthy self-management skills when challenging situations occur.
She has mixed results in these areas.
Semester two was a difficult time for her socially, emotionally and behaviourally.
Whilst being offered a range of strategies to self-manage such as a positive playground card, time out in a safe place, and relaxation manipulatives, appropriate choices were not always made by her.
She has sometimes chosen to respond in an offensive manner that may have been conceived as confrontational.
The Confidential School Counsellor report dated 29 October 2019
She is the youngest of the children in Kelly and Daniel's household, who both have adult children.
They have two children together and three foster children.
Maddie has been living with them for a year.
Her longest previous placement was four months duration and this current placement is the 10th placement for her.
Kelly states Maddie has been the most challenging of their children.
The behaviours of concern are constant tantrums and continual screaming, which have been present since she attended preschool.
Other areas of concern are difficulty making friends and after inviting 15 children to a birthday party, only two attended.
She is oblivious to any negative events and attaches to people indiscriminately.
There are no problems with testing for her hearing and vision.
She is good at dancing and generally behaves well in home environment other than attention seeking and lying.
She spends part of the school day in a smaller class which is more suited to her needs than mainstream class placement.
The results of various tests are as follows:
The Weschler Preschool and Primary Scale of Intelligence fourth edition (WPPSI-IV) showed full scale score in low average, at the 13th percentile.
Subtests
Verbal: low average range 21^st percentile
Visual spatial: in the average range 27^th percentile
Fluid reasoning: average range 37^th percentile
Working memory: average range 58^th percentile
Processing speed: very low range 8^th percentile
Full scale: low average range 13^th percentile
The Weschler Individual Achievement Test Third Edition (WIAT-III) has the following results:
Listening comprehension: very low range 10^th percentile
Early reading skills: low average range 12^th percentile
Maths problem solving: low average range 5^th percentile
Alphabet writing fluency: extremely low range 1^st percentile
Numerical operation: very low range 3^rd percentile
Oral expression: low average range 12^th percentile
Spelling: very low range 8^th percentile
These results were less than predicted by the WPPI-IV
The CONNERS Comprehensive Behaviour Rating Scales:
The report on the CONNERS CBRS showed results from both teacher and parents that were consistent for impulsive hyperactive attention deficit hyperactivity disorder, Oppositional Defiant Disorder, Social Anxiety Disorder and Autism Spectrum Disorder.
The results and Maddie's trauma background is evident with many externalising behaviours such as defiance, aggression, and impulsivity, masking anxiety and uncertainty.
Summary: She is a kindergarten student and results on the WISC-4 were in the low average range and results on the WIAT-3 extremely low to average.
There was a significant discrepancy between the results on the two assessments in numerical operations, common maths problem solving and spelling, all areas of which rely on the child receiving explicit instruction, which is impossible for Maddy at this stage of development.
Processing speed on the WPPSI-IV is extremely low and also reflected in the WIAT-III results.
The results on the CBRS and observations during testing suggest she has difficulty with attention, concentration, defiance, aggression and self-regulation and a clinical diagnosis is likely. This is likely to be a legacy of her past trauma.
The summary of the school counsellor report for August 2022 states, Maddy's cognitive ability is in the very low range, according to the results on the WISC-5.
Her academic achievement is significantly less than projected for her FSIQ in many areas.
She has made excellent progress with concentration and emotional regulation and according to parent-teacher reports, no longer requires the intensive support she receives in a multi-categorical class.
The transition from such intense support to mainstream class is likely to be too much of a change, and it may be that the support should be gradually reduced while supporting improvement in Maddie's academic achievement.
The report by Anna Jones, speech and language pathologist, dated 19 March 2020 states, [CBS]'s communication skills were assessed using articular survey, southern phonological awareness test and observation.
[CBS] has a mild speech disorder characterised by multiple speech sound errors.
She is moderately average phonological awareness skills for age. She struggles with reading and writing, and this is not a true representation of her functional performance.
She has had previous violent outbursts and defiant behaviour. These behaviours have begun to reduce in frequency, become more manageable with management strategies.
She has age appropriate play skills, and is able to use imaginary and pretend play skills both independently and with others.
She has difficulty socialising with peers and reportedly has a limited understanding of knowing who or what a friend is.

[2025] NSWPICMP 750

30 September 2025