Chaalan v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Chaalan v Allianz Australia Insurance Limited [2024] NSWPICMP 264
CLAIMANT:	Hamad-Moses Chaalan
INSURER:	Allianz Insurance Australia Limited
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Nigel Ackroyd
MEDICAL ASSESSOR:	Margaret Gibson
DATE OF DECISION:	1 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Review of decision of Medical Assessor (MA) Chan dated 2 June 2022; treatment and care dispute arising out of an accident on 28 February 2019; claimant was a passenger in a car which collided with a truck in circumstances which the claimant considered life-threatening; claimant was assessed for his psychiatric disabilities by MA Parmegiani and was diagnosed as having a post-traumatic stress disorder (PTSD); 88 days after the accident the claimant was admitted to hospital with atrial fibrillation which the claimant attributed to the accident but the insurer disputed this; MA Chan said that the claimant’s atrial fibrillation was not causally related to the accident and the claimant sought a review of his decision; the Panel made available to the parties research papers to the parties attributing atrial fibrillation where PTSD had developed; claimant had been a bodybuilder but denied taking anabolic steroids which can cause atrial fibrillation; Panel not satisfied that there was evidence confirming the taking of anabolic steroids by the claimant; Panel satisfied that atrial fibrillation was not a development of an autonomic state of the claimant and that his development of PTSD had subsequently caused atrial fibrillation both of which were causally related to the accident; Held – certificate of MA Chan revoked; Panel satisfied that treatment and care claimed by the claimant of his atrial fibrillation is reasonable and necessary and causally related to the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION DETERMINATION 1. The certificate of Medical Assessor Chan dated 2 June 2022 is revoked. 2. The following treatment and care does relate to the injuries caused by the motor accident: (a) the proposed initial consultation with A/Prof Michael Kilborn. 3. The following treatment and care is reasonable and necessary in the circumstances: (a) the proposed initial consultation with A/Prof Michael Kilborn.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant for review of the certificate and reasons of Medical Assessor Chan (the Medical Assessor).
The Medical Assessor found that a proposed initial consultation with A/Prof Kilborn did not relate to the injury caused by the accident.

BACKGROUND

There is a dispute between the claimant and the insurer about:
(a) whether any treatment and care provided is reasonable and necessary in the circumstances under Schedule 2, s 2(b) of the Motor Accident Injuries Act2017 (the Act), and
(b) whether any treatment and care relates to an injury caused by the accident under Schedule 2, s 2(b) of the Act.
The following treatment disputes were referred by the Personal Injury Commission (Commission) for assessment:
(a) whether a proposed initial consultation with A/Prof Kilborn is causally related to the physical injuries sustained in the subject motor vehicle accident, and
(b) whether a proposed initial consultation with A/Prof Kilborn is reasonable and necessary.

The accident

On 28 February 2019 at approximately 9:45pm, the claimant was involved in a motor vehicle accident on Hume Highway, Chullora.
The claimant was the passenger in a vehicle proceeding from Burwood towards Greenacre. The car in which the claimant was travelling was in the far-left lane along the Hume Highway, following a garbage truck which was in front and in the far-right lane. The truck was about 15-20m ahead of the claimant’s car before the accident happened.
It seems that without warning, the truck performed a left hook turn across three lanes. By the time the truck was directly in front of the claimant’s car, there was not enough distance between the claimant’s car and the truck to avoid a collision. The claimant recalled the driver of his car braking heavily and his seatbelt constricting forcefully as the car collided with the fuel tank area on the left front side of the truck.

BUNDLES OF DOCUMENTS

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 it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.

The claimant’s submissions

The claimant says that the Medical Assessor is an occupational physician and not a cardiologist and not appropriately qualified to deal with the claimant’s injuries.
The claimant has noted that at the request of the insurer, he was examined by Dr Harber on 11 May 2022 but no examination report from Dr Harber has been served on the claimant (this report does now though form part of the insurer’s bundle of evidence).
The claimant referred to a comment by the Medical Assessor who said;
“There was no medical evidence of any injury to the heart. If the accident had caused the AF, the AF would have been evident immediately after the accident and whilst he was in Liverpool Hospital.”
The claimant says that it is widely accepted that atrial fibrillation (AF) can be brought on by anxiety and stress and to say that it could only be brought on by actual trauma to the heart is incorrect in a material respect, in that it goes to causation. The claimant submits that if the accident caused stress and anxiety, which he submits it has, then in turn the accident could have caused the AF.
The claimant noted a further comment by the Medical Assessor when he said;
“I noted Prof Kilborn’s report stated ‘AF is often influenced crucially by autonomic state and this may have been affected by the ‘whiplash’ injuries, affecting cervical nerve roots’ …..of time. However, we noted that the AF did not occur after the accident, nor did it occur throughout his stay at Liverpool Hospital. In addition, there was no evidence in the cervical spine CT scan of any cervical nerve root impingement.”
The claimant submitted again that the Medical Assessor was not appropriately qualified to assess the complex causal connection between the cervical spine injury and the AF and says that A/Prof Kilborn is clearly more qualified.
The claimant submitted that he had a few episodes of AF which occurred after the accident and he was referred to see A/Prof Kilborn for treatment by his general practitioner (GP),
Dr Chan and Dr Hasche, the cardiologist who had seen him.
The claimant submits that the insurer has failed to take the following factors into account or accord and given them the appropriate weight as part of their initial decision:
(a)   the claimant has experienced ongoing AF following the subject motor vehicle accident and continues to suffer from ongoing debilitating symptoms. The claimant says that he requires the proposed treatment to address and manage his symptoms;
(b)   the claimant’s treating medical practitioner has referred the claimant for treatment. The insurer has denied the treatment as not being reasonable and necessary and/or relating to the injuries sustained in the motor vehicle accident. The claimant says that the insurer, however, has not reviewed the medical evidence available which documents a concise history of the claimant’s symptoms since the accident. The claimant says that the insurer has not served any medical evidence in support of its position. In the absence of medical evidence commenting on the claimant’s treatment, the claimant submits that the insurers position cannot be maintained, and
(c)   the claimant says that the insurer denied the treatment as not being reasonable and necessary and/or relating to the injuries sustained in the motor vehicle accident. However, the claimant says that the insurer has not made any attempt to clarify why the treatment is required (or not required) with the claimant’s medical practitioner. The claimant says that as such, the insurer has failed to adhere to s 1.3(2)(a) and (g) of the Act which states that:
“(2) For that purpose, the objects of this Act are as follows:
(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities,
(b) to provide early and ongoing financial support for persons injured in motor accidents,
(c) to continue to make third-party bodily insurance compulsory for all owners of motor vehicles registered in New South Wales,
(d)      to keep premiums for third-party policies affordable by ensuring that profits achieved by insurers do not exceed the amount that is sufficient to underwrite the relevant risk and by limiting benefits payable for minor injuries(e)    to promote competition and innovation in the setting of premiums for third party policies, and to provide the Authority with a role to ensure the sustainability and affordability of the compulsory third-party insurance scheme and fair market practices,
(f) to deter fraud in connection with compulsory third-party insurance,
(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes,
(h) to ensure the collection and use of data to facilitate the effective management of the compulsory third-party insurance scheme”
The claimant submits that the insurer has made an incorrect determination resulting in an outcome that substantially impacts his right to compensation. The insurer has a duty to try to resolve the claim justly and expeditiously pursuant to s 6.4 of the Act.
The claimant says that his treatment is reasonable and necessary and relates to the injuries sustained in the accident.
The claimant says that his treating GP, has referred him for the proposed treatment. The claimant says that the insurer declined the proposed treatment without consideration about why the claimant was referred for treatment. The claimant submits that his GP’s referral for the proposed treatment has a strong clinical basis, as it responds to the claimant’s history of ongoing AF symptoms which formed the basis for the referral.
The claimant submits that the referral for the proposed treatment relies upon medical documentation with persuasive clinical evidence. Since the subject motor vehicle accident, the claimant says that he has suffered from ongoing AF, as reflected in the following medical evidence:
(a)   the claimant experienced an episode of AF on 17 May 2019 and attending upon Bankstown Hospital;
(b)   on 22 May 2019, the claimant attended upon Dr Edmund Hasche regarding his AF;
(c)   the claimant underwent a follow up consultation with Dr Edmund Hasche on
23 August 2019;
(d)   on 30 August 2019, the claimant attended Canterbury Hospital as per the advice of his GP. He was admitted overnight to the intensive care unit and treated with antiarrhythmic medication;
(e)   the claimant consulted again with Dr Hasche on 12 September 2019 who recommended that he consult with A/Prof Kilborn regarding the need for radiofrequency ablation. He was also prescribed with metoprolol.
(f)    on 5 November 2019, the claimant consulted with A/Prof Kilborn;
(g)   on 3 June 2020, the claimant attended Royal Prince Alfred Hospital (RPAH) experiencing AF where he was treated with beta blockers before being discharged the following day;
(h)   on 15 July 2020, the claimant was referred by his GP to Dr Edmund Hasche following a “dizzy episode” and subsequent fall, and
(i)    the claimant underwent cryo PVI (cryo pulmonary vein isolation ablation) under the care of A/Prof Kilborn at RPAH on 31 August 2020 for the treatment of his symptoms.
On 14 April 2021, the claimant was admitted to Bankstown Hospital experiencing symptoms of AF and rapid ventricular rate. The claimant says that he was also suffering from dislocation at the base of the fourth and fifth metacarpals and intra-articular fracture of the fifth metacarpal as a result of a fall from light headedness caused by the AF.
The claimant says that the insurer submits that there is insufficient medical information linking the claimant’s current symptoms of AF with loss of consciousness to the motor vehicle accident. However, the claimant notes that he consulted with A/Prof Kilborn after the motor vehicle accident on 5 November 2019. In his report of 5 November 2019, A/Prof Kilborn states:
“The timing of the development of his AF suggests that the road accident has caused it. We know that AF is often influenced crucially by autonomic state and this may have been affected by the 'whiplash" injuries, affecting cervical nerve roots. No other likely causes or triggers seem to have been present.”
The claimant says that the opinion of A/Prof Kilborn, who is not only learned in his field of medical practice but familiar with the claimant’s presentation, history and individual circumstances shows a causal link between the claimant’s symptoms and the subject motor vehicle accident. The claimant submits that his AF symptoms are directly related to the accident in accordance with the opinion of the claimant’s treating specialist.
The claimant further submits that the insurer is in possession of the claimant’s clinical notes for the period since the claimant was 7 years of age until 10 September 2020. The claimant says that as documented in the clinical notes of Restwell Medical Centre, the claimant experienced occasional palpitations in October 2016 for which he was referred to consult with Dr Hasche. The claimant says that in his report dated 20 October 2016, Dr Hasche formed the opinion that the claimant’s “palpitations are almost certainly benign”. The claimant says that he did not suffer from any palpitations or cardiac episodes until following his involvement in the subject accident.
The claimant says that the insurer has extensive pre-accident clinical notes showing that the claimant’s AF symptoms commenced shortly after the accident and not prior to its occurrence.
The claimant submits that his AF symptoms are directly related to the accident.
The claimant says that the medical documentation on which he relies chronicles a consistent history of contemporaneous complaint regarding his AF which has occurred since the accident. Further, the claimant says that it evidences a comprehensive clinical justification supporting the proposed treatment.
The claimant says that he has suffered pain and debilitating symptoms in his neck for a period of two years. The claimant submits that with a view to the severity and longstanding nature of his injury, the proposed treatment should be considered reasonable and necessary.

Insurer’s submissions

The insurer says that an assessment of whether the need for treatment (initial consultation with a cardiologist) is reasonable and necessary is inextricably linked with an assessment of the claimant’s credibility. The insurer says that the claimant has provided fraudulently false and misleading statements throughout his claim, and the insurer submits that any evidence given by him that is not objectively corroborated cannot be accepted.
In considering causation of AF, the insurer says that the Review Panel is to bear in mind those principles which would be applied by a court.
The insurer submitted that the claimant had consulted Dr Hasche, cardiologist, before the accident in October 2016 with a history of recurrent palpitations for over a year, and the AF occurred a few months after the accident. Hence the AF was not causally related to the accident.
The insurer says that one of the key principles relates to the burden of proof. Section 5E of the Civil Liability Act 2002 (CLA) has codified this principle as follows: “In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation”.
Applying this test to cl 6.6 of the Guidelines, the insurer says that the Review Panel must determine whether:
(a) the accident could have caused or contributed to the worsening of the impairment, and
(b) the accident did cause of contribute to worsening of the impairment.
The insurer says that each of these questions is to be answered on the balance of probabilities. That is, the Medical Assessor could not find that the accident caused or contributed injury to any particular body system unless it is more likely than not that it did so.
The insurer says that this effectively means that the insurer gets the benefit of the doubt. The insurer says that this is important in the context of the issues regarding the claimant’s honesty and credibility, outlined below.
Regarding the claimant’s evidence, the insurer says that the claimant has consistently stated that he has not worked since the accident. The insurer says that he repeated this to the Medical Assessor and A/Prof Haber.
The insurer says that it has obtained surveillance over a long period of time depicting the claimant apparently engaged in manual work. The insurer has alleged that the claimant’s conduct amounts to fraud.
The insurer says that this conduct casts a pall over the entirety of the claim. It means that any evidence of the claimant that is not objectively corroborated cannot be accepted. The insurer says that this is important, because A/Prof Haber (who concluded that the accident may have caused an aggravation or exacerbation of the claimant’s tendency to AF) based this finding on an acceptance that “A week or two after the accident he started to feel fast irregular palpitations”.
The insurer says that the claimant did not seek any medical treatment at this time, and so this finding is based wholly on an acceptance of the claimant’s unsupported evidence. The insurer says that A/Prof Haber was not aware of the claimant’s misleading evidence elsewhere in his claim.
The insurer says that by contrast, the Medical Assessor based his findings solely on the medical records (which, in the insurer’s submission, is the only way to address this claim) and found that the first symptoms of pre-accident palpitations were when the claimant attended Bankstown-Lidcombe Hospital on 17 May 2019, three months after the accident.
The insurer says that the claimant has a pre-accident history of heart palpitations. The objective evidence establishes that the first symptoms of palpitations post-accident were three months after the event.
The insurer refers to the claimant’s submission that the AF may have been caused by anxiety and stress. The insurer says that again, a finding that the claimant has suffered, or is suffering, anxiety and stress following the accident is predicated on a finding that his reporting is accurate. The insurer reiterates that the claimant’s history simply cannot be accepted.
The insurer says that it should be noted that the Medical Assessor was not aware of the surveillance which contradicted the claimant’s evidence. Finally, the insurer concludes and says that the objective evidence establishes that:
(a)     the claimant has a pre-accident history of palpitations necessitating cardiology review;
(b)     the claimant’s first complaints of palpitation following the accident were three months after the event, and
(c)   the claimant’s evidence as to the accident and injuries (including the extent of stress) is at least embellished and in all likelihood fabricated.
The insurer says that the Panel must place the onus of proof on the claimant (as the Guidelines direct the Panel to do), and that on this basis the Panel cannot be satisfied that the need for cardiology review is reasonable and necessary as a result of the accident.

Claimant’s statement

Part of the claimant's bundle of documents includes his statement dated 23 July 2020. A summary of his comments follows;
“In October 2016, I was admitted under the ENT team where I underwent Electro Cauterisation nasal surgery after having several episodes for severe epistaxis - which entails severe nosebleeds for extended periods of time. Post discharge, I experienced shortness of breath and chest tightness. I was reviewed by GP, Dr El Azzi on October 14, 2016 for these symptoms. A D-dimer and V/Q scan were performed to exclude any pulmonary embolus following the surgery. The results were negative. Doctor has noted in her notes “no use of recreational drugs or steroid use”. My BP and HR were well within normal range. I was diagnosed with insomnia and given a script of Promethazine to assist as a sleeping aid.
My symptoms of insomnia, chest tightness and anxiety continued, and I was eventually admitted into Bankstown Hospital. My admission was benign, and I was referred to a cardiologist; Dr Edmund Hasche, who cleared me to continue with exercise and did not diagnose me with any cardiac issues. His report concluded that the palpitations were benign and ‘most likely due to forceful contraction caused by elevated catecholamine levels’ secondary to anxiety. Again, my BP and HR were normal, and my ECG demonstrated a normal sinus rhythm at time of review.
On the 17^th of May 2019 I was reviewed by Dr Hatoum as I was experiencing strong pains in my chest, strong heart palpitations, spells of dizziness, light-headedness, diaphoresis and nausea. I had an ECG test and upon viewing the results of rapid AF I was urged to go to the emergency department.
I presented to Bankstown Hospital where I was then diagnosed with AF with rapid ventricular rate. I was kept overnight and given antiarrhythmics for a positive chemical cardioversion. I was discharged and advised to follow up with a cardiologist.
Upon discharge, I was instructed to consult cardiologist Dr Michael Kilborn. Dr Kilborn stated the onset of the AF was secondary to the soft tissue injuries to my neck and injury to the cervical nerves.
On Friday, the 30^th of August 2019 I presented to Canterbury Hospital where I was admitted overnight for another episode of AF with rapid ventricular rate. I was given Magnesium and anti-arrhythmics Flecainide and metoprolol and I was admitted overnight to the high dependency unit.
On the 3^rd of June 2020 I was admitted to Royal Prince Alfred Hospital again with AF with rapid ventricular rate. Overnight despite multiple attempts with antiarrhythmics (Flecainide and metoprolol) I was unable to revert. I was planned for a DC cardioversion however, my rhythm reverted to sinus with sotalol and I was discharged with plans for a future ablation and to remain on the antiarrhythmic sotalol 80mg twice a day.
At the time of the accident, I was employed by Hamilton Marino Builders as a Dogman, Crane coordinator, Basic Rigger and Mobile Crane Operator.
The nature of my duties was very physical; requiring constant movement, lifting heavy loads, moving up and down scaffolding, working on uneven surfaces and spending the majority of my day on my feet. I was also required to attend meetings and communicate with colleagues and stakeholders. This became impossible due to my diminished attention span, decreased motivation, loss of energy, and deteriorated mental state. As a result, I was unable to commence my employment following the accident. My employment was eventually terminated on the 11^th of March 2020 as there was no longer a position available for me which accommodated my numerous post-accident restrictions.
The accident has impacted my life in ways which I fear I may never recover from or adapt to. I am in a constant state of depression as a result of my situation. My quality of life has deteriorated and I have been robbed of the pinnacle of my youth.”

Medical evidence

The claimant’s GP, Dr Malek, completed a certificate of fitness dated 4 March 2019. He listed the claimant’s injuries as;
“Head , cerviical spine, thoracic and Lumbar spine inj, Bil shoulder, Rt wrist -and Thumb, Rt hip, bruises -Ant chest wall and abd wall pain, left side chest pain, Bil leg bruises, finger tingling - Car phobia, Insomnia, anxiety.”
A discharge referral from Bankstown-Lidcombe Hospital dated 18 May 2019 reported;
“Thank you for your ongoing care of Hamad-Moses CHAALAN, a 27 year old MAN, who presented to Bankstown-Lidcombe ED on 17/05/19 with palpitation on waking. On assessment the patient was found in AFwRVR and remainded haemodynamically stable. CHADSVASC = O. Bloods
NAO. The patient was admitted under Dr Dunn (Cardiologist). During his admission the patient reverted to sinus rhythm and was discharged home on 18/05/19 for follow up with his regular cardiologist Dr Hasche.
Primary diagnosis
Atrial Fibrillation with rapid ventricular rate.”
The notes record his assessment on presentation as follows;
“27 yo male with acute palpitation since 0830 this morning
Woke up this way, not exercising
Associated with lightheadedness
Denies central chest pain/SOB/recent illness
Hit history of thyroid disease/alcoholism/drug use
Nil vomit/diarrhoea/rash
Nil recent new medications
Currently feels anxious, wants to know if he will need cardioversion Not unstable, palpitations at the moment
Eating food, nil nausea”
The Liverpool Hospital Discharge Referral letter, following the accident, stated that the claimant’s complaints were “numbness right thumb and decreased sensation,… however improved the following day”. The issues were “soft tissue injuries sustained, non-concerning, Trauma series_ - NAD (CT cervical spine, CT Abdomen and Pelvis, CT chest x-ray, x-ray of right hand). He was discharged home the following day, the 1.3.19”.
On the 25 March 2019, three weeks after the accident, the claimant had MRI scans of his cervical spine, lumbar spine, and an ultrasound of the right shoulder, right wrist, right ankle and left shoulder. No fracture, no tendon/ligament tear or tendinosis of the rotator cuff of his right and left shoulder were detected.
On the 17 May 2019, the claimant had palpitations on waking. He presented to Bankstown-Lidcombe Hospital. He had no history of central chest pain, no recent illness and no shortness of breath. On assessment the claimant was found to have AF with a rapid ventricular rate. He was treated with Metoprolol and Flecainide and during admission his heart condition reverted to sinus rhythm and was discharged home.
He was reviewed by Dr Hasche on 22 May 2019. Dr Hasche reported that his blood pressure was normal.
Dr Hasche performed a number of investigations. His ECG showed that his heart was in sinus rhythm. An echocardiogram revealed a normal functioning heart. An exercise test showed reasonable excess capacity with no ECG changes of cardiac ischaemia. Dr Hasche said that the claimant had paroxysmal AF with no obvious identifiable trigger. Dr Hasche arranged for the claimant to have his heart monitored with a Holter monitor.
Dr Hasche reviewed the claimant on 23 August 2019. He noted that the claimant did not have further episodes of AF since last review on 22 May 2019. His blood pressure was normal. The Holter monitor result showed that the claimant was in sinus rhythm. There was no evidence of AF or atrial flutter.
On 27 August 2019, the claimant underwent a sleep study. This report by respiratory and sleep physician, Dr Freiberg, stated “this sleep study is essentially within normal limits. There is certainly no significant sleep disorder breathing to have triggered off his episode of AF in sleep earlier this year. Blood pressure before retiring was 134/78 and on rising in the morning was 128/79.”
On the morning of 30 August 2019, the claimant began to feel palpitations that were irregular, chest tightness, some mild chest heaviness, some light-headedness and shortness of breath. He took Metoprolol 50 mg with no resolution. He saw his GP that morning and was referred to Canterbury Hospital.
At the hospital he was found to have AF with rapid ventricular rate of 115 bpm. He was afebrile, no upper respiratory tract (URT) symptoms, nausea, vomiting, chest/jaw/shoulder pain, no abdominal pain, bowel or urinary symptoms.
He was treated with another 50mg of Metoprolol and Magnesium. Later that day, he had another ECG which showed a heart rate of 134 bpm with AF. He was treated with another
25 mg of Metoprolol and Flecainide 50 mg. His AF reverted to sinus rhythm while on monitoring in the High Dependency Unit (HDU) and was discharged home with Metoprolol 25mg bid.
On 12 September 2019, Dr Hasche reviewed him. His blood pressure and ECG were both normal. Dr Hasche discussed with the claimant ablation to treat his AF. Dr Hasche referred the claimant to A/Prof Kilborn who reviewed his condition and put him on the waiting list to have ablation.
On the 20 November 2019, Mr Chaalan had an assessment by Medical Assessor Berry to determine if the injuries to his cervical spine, lumbar spine and both shoulders were threshold injuries. The listed injuries were determined to be threshold injuries for the purpose of the Act.
Dr Hasche reviewed the claimant on 12 March 2020 and reported that since he was commenced on Metoprolol, he had not had any further palpitations apart from very brief palpitations lasting seconds.
On 5 May 2020, the claimant consulted Dr Cooper, cardiologist, at Westmead Hospital for a second opinion.
Dr Cooper said that the claimant “described multiple short episodes of palpitation that he thinks are suggestive of AF, which terminates within minutes”. Dr Cooper commented that:
“on a Holter monitor, he (the claimant) reported symptoms at one stage and was in sinus rhythm so I am not certain how accurate his symptomatic description is. Nonetheless he is a young man who appears to be relatively debilitated by AF…… He does have idiopathic lone fibrillation and given the effect on his quality of life, consideration of ablation seems worthwhile.”
On 4 June 2020, the claimant had another episode of AF. He presented at RPAH where the AF reverted to sinus rhythm with Sotalol only and was discharged home on Sotalol 80 mg twice a day.
On 1 September 2020 there is a discharge referral from RPAH. The claimant was admitted on 31 August 2020 to RPAH as arranged to have “Cryo PVI” by A/Prof Kilborn. The procedure was performed without complication. However, the claimant reported post-chest pain, but there were no events on telemetry, and so he was trialled on Gaviscon to good effect. The following day he was pain free and was discharged home.
On 16 April 2021, discharge summary of Bankstown-Lidcombe Hospital. The claimant had a fall due to light-headedness resulting in dorsal dislocation bases of the right fourth and fifth metacarpals and an intra-articular fracture through the palmer aspect base of the fifth metacarpal, which required close reduction and k-wire fixation. He was treated and was found to have AF with rapid ventricular rate. He was admitted under the care of cardiologist, Dr Waldman. He reverted back to sinus rhythm in the ward with the administration of 100mg of Flecanide. He was discharged on “Flecainide 50 mg bd PRN”.
A report by Dr Hasche of 7 May 2021 stated that the claimant was adamant that he did not have palpitations before he had the fall. Dr Hasche said that the AF was most likely caused by an adrenergic surge caused by the hand injury. Dr Hasche reported that his Echocardiogram revealed that his heart was normal in size and function.
The claimant was examined on behalf of the insurer by A/Prof Haber who provided a report of 11 March 2022.
The claimant reported to A/Prof Haber that at the time of the accident he was a passenger in a two seater car when he was involved in an accident when a truck turned in front of their car. The claimant said that he just remembers the accident then he blacked out for a few minutes. He came to and later fainted again. He said that he remembered having chest tightness. He was taken by ambulance to Liverpool Hospital where he was kept overnight. He sustained multiple injuries.
A week or two after the accident, the claimant informed A/Professor Haber that he started to feel fast irregular palpitations, which occurred two or three times a week lasting for a few minutes at a time. These attacks were reported as increasing in duration.
Four months after the accident the claimant said that he became very breathless and had palpitations due to rapid AF. His father took him to his local GP and then drove him to Bankstown Hospital.
Since then, he has been, on a number of different occasions, at Bankstown, Canterbury as well as RPAH hospitals, in which he was treated initially with Metoprolol and more recently with Sotalol and Flecainide.
The claimant informed A/Prof Haber that in one of these attacks when he was admitted to RPAH under A/Prof Kilborn he had cardiac ablation on 31 August 2020. Since then, the claimant said that he has had occasional mild attacks only which lasted for a minute or so, two to three times a week.
On 14 April 2021 the claimant reported that he had an injury involving the right fourth and first [sic] metacarpal phalangeal joint dislocation after which he had another attack of AF. His last attack was last August or September 2021 in the morning when it lasted for a few minutes only and resolved after taking sotalol.
A/Prof Haber said that until some time recently before his examination, the claimant suffered from paroxysmal AF, which became nearly well controlled by ablation, but still had another episode of AF when he dislocated a couple of joints in his hand. Although he still had short lived episodes of palpitations, on a Holter test, they were not due to AF.
A/Prof Haber said that it was more likely than not that the accident caused at least aggravation and exacerbation of his tendency to have paroxysmal AF. He said that the claimant had not had any definite episodes of AF prior to his car accident. The adrenergic surge as result of the accident was more likely than not the reason for the development of paroxysmal AF. Aggravation or exacerbation by the accident can be considered to have ceased at the time of his successful ablation.
A/Prof Haber said that in the period between date of accident and the present, the claimant required treatment and it is more likely than not that the accident gave rise to the need for the treatment which he received and which was reasonable and necessary. He went on to say that in future the claimant may require some treatment for AF either in the way of medication or even possibly cardioversion and/or ablation but it is unlikely that the accident would create such a need in the future.
The claimant was assessed by Medical Assessor Parmegiani on 28 November 2019, for psychiatric assessment. He provided a certificate on 11 December 2019. The Medical Assessor’s certificate concluded that the claimant suffered a post-traumatic stress disorder and a major depressive episode which were not minor injuries, as they are then described.
The Medical Assessor noted that no psychological related diagnosis had been provided by the claimant’s GP or any of the certificates of capacity provided to the time of the assessment. Furthermore, the Medical Assessor noted the insurer’s submission that there had been no request for treatment provided by the claimant’s treating psychologist.
The Medical Assessor took a history from the claimant that at the time of the assessment he had been taking antidepressant medication at night for several months the claimant also informed the Medical Assessor that he used Metroprolol 25mg twice a day since the accident and stated that the accident had caused him to suffer AF. The claimant said that he consulted with a psychologist by the name of Dr Saba at his GP’s surgery.
The Medical Assessor said that when he asked the claimant about psychological consequences of the accident, he reported that immediately after it, he experienced several nightmares and while awake, he was troubled by intrusive memories and flashbacks. The claimant said that he became irritable and anxious and was always tense. His startle response was persistently elevated. The claimant stated that he felt particularly anxious when he was in a car and that he began to develop symptoms of palpitations.
The claimant informed the Medical Assessor that his GP, Dr Hatoum prescribed him with an antidepressant medication, Citalopram, and then referred him to see Dr Saba. The claimant reported that he did not think that the psychological treatments had helped him much.
At the time of the examination, the claimant reported that his then current psychiatric symptoms were persistent symptoms of post-traumatic stress disorder including recurrent and intrusive memories of the accident, flashbacks and persistent hyper arousal. He was irritable and trying to avoid driving. He even felt anxious as a passenger.
The Medical Assessor noted that there were no particular psychological or psychiatric reports for his assistance at the time of examination.
The Medical Assessor said that based on the dynamics of the accident, he was satisfied that the accident constituted a valid Criterion A for a potential diagnosis of post-traumatic stress disorder.
The Medical Assessor said that from a psychiatric perspective, the claimant reported immediately after the accident the onset of classical symptoms of an acute stress reaction, including intrusive memories of the accident, flashbacks, nightmares, dysphoric mood, hyperarousal, and increased startle response area these symptoms persisted well past one month and therefore, on the assessment of the Medical Assessor, came to fulfil diagnostic criteria for post-traumatic stress disorder.
The Medical Assessor said that in his opinion the reported psychiatric symptoms satisfied diagnostic criteria within the DSM-5 (Diagnostic and Statistical Manual for Mental Disorders 5^th edition) classification system for post-traumatic stress disorder and a secondary major depressive episode.
The Medical Assessor said that the claimant developed symptoms of acute stress reaction first and later post-traumatic stress disorder complicated by secondary depression. He believed that there was a direct relationship between the traumatic experience of the accident and the emergence of his psychiatric condition. At this assessment, the Medical Assessor was unable to detect any other factors that may have contributed to his condition. It was therefore his opinion that the diagnosis of post-traumatic stress disorder and secondary major depressive episode were causally related to the accident.
The Medical Assessor in his certificate of 2 June 2022 reported with respect to causation of treatment and care claimed;
“I have considered the following evidence about his heart before the accident.
I have reviewed the risk factors that predispose a person to getting AF. Mr Chaalan had a history of palpitations in 2016 for some months. He was reviewed by cardiologist Dr Hasche in October 2016 and Mr Chaalan had no known heart disorder before the subject accident. He had no overactive thyroid function. His waist circumference measured to-day is 98 cm. A waist circumference of 94-102 cm would place him in the ‘moderate risk’ of developing cardiovascular disorder. He had no family history of heart rhythm disorder.
When he was seen by Dr Hasche in October 2016, Dr Hasche noted at that time that he was working out in the gym 3-4 hours a day as he planned to compete in body building competitions. He had an Echocardiogram which revealed he had a normal functioning heart.
He also had an ECG and an Exercise Test which did not show any signs of ischaemia to the heart.
I have look for evidence of injury to his heart and the onset of AF caused by the accident. I noted the following:
Immediately after the accident, he was examined at Liverpool Hospital on the 28.2.19. There was no complaint of palpitation. The chest CT scan performed at Liverpool Hospital immediately after the accident reported that there was “No evidence of great vessel injury, no mediastinal haematoma, no pneumothorax or pneumomediastinum, no pleural or pericardial effusion. No pulmonary haemorrhage or contusion”.
If he had sustained trauma to his heart, a pericardial effusion could be present, but this was not the case.
There was no report that he had AF after the accident and whilst he was being assessed at Liverpool Hospital.
There was no medical evidence of any injury to the heart.
If the accident had caused the AF, the AF would have been evident immediately after the accident and whilst he was in Liverpool Hospital.
On the 14 April 2021, seven and a half months after he had Cryo PVI ablation, he had a fall and had dislocation of the right 4^th and 5^th metacarpal and an intra-articular fracture through the base of the metacarpal. He was treated at Bankstown-Lidcombe Hospital and found to have AF with rapid ventricular rate which reverted to sinus rhythm with medications. When he attended a review of his heart on the 7.5.21, he told Dr Hasche that he did not have palpitations before he had the fall.
There was no evidence of any injury to his heart in the accident. There was no complaint and no documented evidence that he had AF and a rapid ventricular rate immediately after the accident, and indeed no AF for nearly three months after the accident.
He had an ECG, an Echocardiogram of his heart and an Exercise Test by Dr Hasche after the accident on the 22.5.19 and these were normal. From the 22.8.19 to 23.8.19, he had a 24-hour Holter monitor of his heart and no abnormality of heart rhythm was revealed. The two occasions flagged by Mr Chaalan as ‘ palpitations’ ( he pressed the event button on 2 occasions) , the ECG revealed normal sinus rhythm.
Having considered the above evidence, I concluded that the AF and rapid ventricular rate were not causally related to the subject accident.
I noted Prof Kilborn’s report stated ‘AF is often influenced crucially by autonomic state and this may have been affected by the ‘whiplash’ injuries, affecting cervical nerve roots.’
In response to a ‘special event’ the body’s autonomic state may be trigger to assist the body to deal with the ‘special event’. The ‘special event’ can be the start of a 100-metre race in sports or being chased by a bull terrier. When the ‘special event’ had ceased the triggered and heighten autonomic state returned to normal. The motor vehicle accident is a ‘special event’. As such, a heightened autonomic state in the body could be triggered by the accident. If his AF is triggered by the accident, one would expect the occurrence of AF immediately after the accident and could remain for a period of time. However, we (sic) noted that the AF did not occur after the accident nor did it occur throughout his stay at Liverpool Hospital. In addition, there was no evidence in the cervical spine CT scan of any cervical nerve root impingement.
The occurrence of his AF three months after the accident had no relationship with the subject accident.
His AF, with no trigger factor, could be diagnosed as idiopathic AF which Dr Cooper opined or paroxysmal AF which Dr Hasche had stated in his report.”

The Medical Assessor said that as the AF was not causally related to the accident, the proposed initial consultation with A/Prof Kilborn was not causally related to the physical injuries sustained in the accident.
Regarding treatment and care and whether it is reasonable and necessary, the Medical Assessor said that as the proposed initial consultation with A/Prof Kilborn was not causally related to the physical injuries sustained in the accident then it followed that the proposed initial consultation with A/Prof Kilborn was not reasonable and necessary.

Surveillance of claimant relied upon by the insurer

The insurer relies on five surveillance reports of M&A Investigations dated 10 January 2022,
19 February 2022, 19 April 2022, 24 June 2022 and 16 November 2022.
The insurer submits that the claimant has said repeatedly that since the accident, he has not worked. The insurer says that this information was given by the claimant to the Medical Assessor and to A/Prof Haber.
The insurer says that the surveillance depicts the claimant apparently engaged in manual work. The insurer says that this conduct amounts to fraud by the claimant.
The insurers submissions about this have been noted by the Panel.
It is not the role of this Panel to decide if the claimant has proceeded with his claim in a fraudulent manner. The surveillance shows the claimant to be undertaking certain activities but whether this is work in the form of regular employment of the claimant, is not known by the Panel.
The Panel is mindful of the objects of the Act and particularly s 1.3(2)(a) and the prevention of fraudulent claims.
The Panel makes no determination about whether the activities demonstrated by the claimant in the surveillance evidence is indicative of a fraudulent activity.
The Panel makes its determination taking into account all of the facts, documentation and surveillance, presented to it.
The Panel has to determine if the claimant has an AF causally related to the accident. As AF is a spontaneous event, it would not necessarily prevent the claimant from performing activities demonstrated in the surveillance.

PANEL MEDICAL EXAMINATION

The claimant was medically examined on behalf of the Panel by Medical Assessor Ackroyd. His report follows;
“HISTORY
Mr Chaalan was examined in my Manly rooms on 23/06/2023 regarding the PIC dispute resolution process.
At dispute is whether it is likely his paroxysmal atrial fibrillation (PAF) was due to the motor vehicle accident on 25/02/2019.
There is also dispute as to whether the initial consultation with A/Professor Michael Kilborn (cardiologist) was required and related to the physical injuries sustained in
Mr Chaalan’s motor vehicle accident.
HISTORY:
The accident has been well described in the documentation. He indicates on 25^th February 2019 his girlfriend, Rachelle, was driving his Nissan 370Z sports car with
Mr Chaalan as a passenger. A truck crossed unexpectedly in front of the car and they collided with the side of this truck with sufficient force that all airbags deployed.
He says he passed out at the time or perhaps had a period of post traumatic amnesia or was dazed. He exited the car then ‘blacked out’.    He was taken to Liverpool hospital with neck, back and left shoulder, left arm and left leg pain. He had no fractures. CT chest and abdomen were normal. He was discharged the following day.
He tells me that there was speculation as to who was driving at the time viz: Mr Chaalan or his female companion. This was addressed and concluded that his female companion was the driver. This was determined by the pattern of seat belt injury abrasions on Mr Chaalan and his female companion.
An MRI investigation on 25/03/2019 showed minor disc bulges at C3/4 C4/5. There was no spinal cord compression but there were small concentric annular tears at L3/4 L4/5 discs.
An Ultrasound investigation on 25/03/2019 of both shoulders was normal.
An X-ray on 25/03/2019 of the R ankle was normal.
He presented to Bankstown Hospital on 17^th May 2019 (88 days after the accident) with palpitations. He had woken from a nightmare with palpitations. He was noted to have AF with a rapid ventricular response. He was treated with Metoprolol and Flecainide. A month or so earlier he had noticed palpitations but it was not clear if these were AF. Subsequently he had several hospital visits with episodes of paroxysmal atrial fibrillation (PAF).
Ostensibly he had no cardiovascular risk factors such as smoking, diabetes, hypertension or lipid problems that may be mooted as a predisposition or precipitant for the PAF.
There was a curious history of palpitations prior to the accident for which he saw a Dr Hesche (cardiologist) in October 2016 when he was 24yo.
30/08/2019: He presented to Canterbury Hospital with AF and rapid ventricular rate settled with Sotalol, Metoprolol and Flecainide.
05/11/2019: Dr Michael Kilborn (cardiologist) felt that Mr Chaalan had PAF. He noted the two episodes of PAF for which he had been seen in Bankstown and Canterbury Hospitals.
During 2019 he had lost 15Kg and had been down to 103Kg. The cause for such a dramatic weight loss in a young man was not entirely obvious.
14/11/2019: He was 186cm and 101Kg BMI=29.2 when he saw Dr Neil Berry.
Dr Berry felt there was a degree of ‘illness behaviour’ on examination. Dr Berry felt there were minor injuries (in the meaning of the term contained in the Motor Accident Injuries Act) to the cervical spine, lumbar spine and bilateral shoulders. All were soft tissue injuries.
12/03/2020: Dr Edmund Hasche (cardiologist) noted Mr Chaalan was having palpitation episodes not all of which corresponded with atrial fibrillation. He was maintained on Metoprolol 25md/d and Lyrica 150mg/d for his brief palpitations.
03/06/2020: Was seen at RPAH with AF and rapid ventricular rate and was able to be settled on Sotalol after a few hours.
22/07/2020: Dr Hasche calculated a CHADS VASC Score of 0 (zero) which means that anticoagulation was not required. At this time medications included Sotalol 80mg/bd, Lyrica 150md/d and Mirtazapine 25md/d, the latter two being for back and leg pains.
31/08/2020: A/Prof Kilburn performed a cryogenic PVI (ablation) at RPAH with a good early result.
Hitherto Mr Chaalan worked as dogman on a crane. He says he was unable to continue doing this because of the accident due to diminished attention span, decreased motivation, loss of energy and deteriorated mental state. He has a vast array of PTSD symptoms and has been under psychological care. At this stage he says he hasn’t worked for over 4 years although surveillance videos may contradict this statement.
He said he couldn’t work as a crane operator and he wasn’t happy with the lower pay of a different job. So, he hasn’t worked since. He says he has had suicidal attempts which I gather have been explored by those attending to his mental health.
He says he hasn’t been to the gym in over 4 years due to his physical and psychological injuries. He is able to walk unlimited distances.
He has regular psychological appointments with no improvement and he feels he is getting worse overall. These psychological issues were documented in detail in Mr Challan’s statement of 23/07/2020.
EXAMINATION:
Well-built and physically robust
Numerous tattoos.
BP 110/80.
Pulse 70 regular.
JVP not elevated.
Heart Sounds dual and no bruits chest or neck
No peripheral Oedema.
Abdomen normal.
Upper and Lower limbs normal
Overall, essentially a normal physical examination.
MEDICATIONS
Currently he takes on Metoprolol and Citalopram (antidepressant) and had recently ceased Temazepam, Melatonin, Lyrica and Somac.
OPINION:
His principal problems now are his mental health and recurrent atrial fibrillation.
There is extensive literature (see refs below) to link emotional or traumatic events to the presence of atrial fibrillation. Mr Chaalan was apparently receiving psychological advice for PTSD after the accident so it is reasonable to assume that the putative PTSD was a causation factor for the PAF.
The articles and literature review references below cover the connection between PTSD and atrial fibrillation. The mechanism of causation of the AF is still enigmatic but is a definite statistical correlation as noted on page 7 of the first article and page 137 in the second article.
Posttraumatic Stress Disorder and Risk for Early Incident Atrial Fibrillation: A Prospective Cohort Study of 1.1 Million Young Adults. J Am Heart Assoc 2019;8:e013741.DOI: 1161/JAHA.119.013741
Psychological aspects of atrial fibrillation: a systematic narrative review. Current Cardiology Reports (2020)22;137. Mr Chaalan’s statement on 23/07/2020 he indicates 13 ‘physical and psychological injuries’ were immediately suffered because of the accident and 46 ‘ongoing disabilities’ which are itemised in the statement.   By any standards this extraordinary litany covers the whole pantheon of possible PTSD complaints and implies a most uncommon misfortune.
While the temporal delay of 88 days following the accident may give pause for thought that an actual physical injury may have been responsible this time scale is consistent with the putative development of PTSD after the event.
Prof Kilborn believed the AF may have been induced by an autonomic state due to the whiplash neck injury at the time of the accident. I would be inclined to feel that if this was the true cause of the AF then the condition would have been temporally closer to the autonomic derangement, that is to say the time of the accident and not 88 days later. The Panel considers this is an unlikely explanation.
Prof Haber advanced a similar explanation citing an adrenergic surge at the time of the accident. One would expect with this explanation that the AF would be more temporally related to the injury itself. Again, the Panel considers this is unlikely to be the explanation.
Medical Assessor Chan is of the view that if the AF was due to the accident, it would have also been temporally related to the accident itself. As this was not the case, he formed the opinion that the AF was not directly caused by the accident itself.
The delay in the temporal profile has an explanation in that the accident led to his PTSD and subsequently his paroxysmal atrial fibrillation which is a pathway that has been described in the literature which has been referred to by the Panel. The literature establishes a clear association with AF and PTSD. Both of these references establish the association of AF with PTSD throughout their entirety.
There is inconsistency with Mr Chaalan’s account of his history to the extent that the insurer has relied on several surveillance videos. These by all accounts indicate there was discrepancy regarding his ability to work. They show him lifting and carrying without physical hindrance. Hitherto he said he was quite unable to do any of this type of work because of the accident. The visual evidence appears at odds with his stated ongoing disabilities.
This naturally raises questions as to the veracity of the rest of his story and allows some speculation regarding the use of Adrenergic Anabolic Steroids (AAS). He was and possibly is an ardent, gym goer who takes supplements and aspired to participate in body building competitions.
Adrenergic Anabolic Steroid usage is a common cause of AF in body builders including a number of other physical and mental changes to the body.
Dr Edmund Hasche (cardiologist) had seen Mr Chaalan, then aged 24yo, on 20^th October 2016 for palpitations, the nature of which were never characterised. They could have been AF or some other arrhythmia. What would not be in doubt is that this is an unusual event for a 24yo. Dr Hasche was moved in his original report to state:
‘Until a few months ago Hamad had taken anabolic steroids which he has stopped now’.
‘I advised Hamad strongly not to take anabolic steroids’.
Mr Chaalan later rescinded this admission to the effect that he meant “supplements”. Also, Dr Hasche was asked to change his recollection of the consultation to state he was also talking about ‘supplements’ and not AAS.
The Panel considers that it is disingenuous that both Dr Hasche and Mr Chaalan would confuse ‘Anabolic Steroids’ with ‘Supplements’. He had ambitions to be a competition body builder so he would have been cognisant of the difference between androgenic anabolic steroids and supplements.   He said in my examination of him that he was a ‘natural’ bodybuilder which is a category that specifically prohibits AAS. Prof Kilburn notes that he had only taken protein and creatine supplements.
So, we must accept as true that he has never taken AAS.   However, as the recent surveillance videos have shown him lifting, exerting, and working without hinderance despite his assertions that he was quite unable to do any of these things we must have lively suspicions as to the veracity of other aspects of his history. The admittedly revised 2016 consultation with Dr Hasche along with Dr Berry’s remarks on ‘illness behaviour’ are features of his behaviour that may allow one to ponder on this possibility.
This is important as it is well accepted that AAS use in the dose levels typical of body builders is apt to cause cardiac muscle hypertrophy and cardiac arrhythmias, the most common being atrial fibrillation. The following article notes the significantly increased prevalence of atrial fibrillation in AAS users;
Long-Term Anabolic Androgenic Steroid use is Associated with Increased Atrial Electromechanical Delay in Male Bodybuilders. BioMed Research International. Volume 2014 article ID 451520, 8 pages. on the available evidence it must be accepted that Mr Chaalan strenuously denies ever having taken AAS and there is no definitive evidence to the contrary so the matter must rest there.
The Panel considers that the most likely causation of his PAF is the association with the PTSD condition due to the motor vehicle accident on 28^th February 2019.
Conclusion
1.   On balance, on the available evidence the likely cause of Mr Chaalan’s atrial fibrillation is his post-accident PTSD. There is support in the literature for this conclusion
2.   The Panel considers that the referral to A/Prof Kilborn was an appropriate consideration related to the treatment of Mr Chaalan’s atrial fibrillation which in turn was the result of the accident on 25^th February 2019.”
The Panel adopts the findings of Medical Assessor Ackroyd.

CAUSATION
The Motor Accident Guidelines

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides).
The approach in cl 6.6 of the Guidelines requires a medical and a non-medical assessment. The Panel however, must determine causation by the application of legal notion of causation.

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a Review Panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5 - 6.7 of the Motor Accident Guidelines, being clauses 1.7 – 1.9 of the Permanent Impairment Guidelines.
The Guidelines in cls 6.6 and 6.7 are an incomplete statement of some of the legal principles needing to be applied in respect of causation. The legal principles in respect of causation must be applied, including s 5D of the CLA. This requires an analysis about whether the claimant’s requirement to attend a conference with his treating specialist for AF arose as a consequence of the subject accident. The non-medical approach requires an approach in accordance with Varga v Galea [2011] NSWCA 76 at (9) that the accident was a necessary condition of the harm - see also Warth v Lafsky [2014] NSWCA 94.
At common law, causation is a question of fact, to be approached in a common sense manner, in which the "but for" test plays an important role: March v E & HM Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (at 5l5 - 546) per Mason CJ (Toohey and Gaudron JJ agreeing).
Section 5E of the CLA provides that in determining liability for negligence, the defendant always bears the onus of proving, on the balance of probabilities, any fact relevant to causation.
Campbell J in Owen v Motor Accidents Authority (NSW),[4] adopted Justice Johnson's approach with a caution touching upon the CLA:
"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 emphasise 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)) of the CLA."[5]
[4] [2012] 61 MVR 245; [2012] NSWSC 650.
[5] At [27].
The two-step process in s 5D of the CLA takes into account the previous position at common law. In Wallace v Kam [2013] HCA 19 it was held that a determination about causation involves two questions. The first question is a question of historical fact as to how a particular harm occurred and the second question is a normative question about whether legal responsibility for that particular harm occurring in that way should be to be attributed to a particular person. The Court held that the determination under section5D(1)(a) involved nothing more or less than the application of a “but for” test. The Court noted at (16);
“that is to say, a determination in accordance with section 5D(1)(a) that negligence was a necessary condition of the occurrence of the harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absence the negligence.”
Following Justice Campbell and his comments in Owen, s 5D of the CLA must be considered when assessing causation.
Section 5D of the CLA provides:
"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')."
There are two elements to address when assessing causation under s 5D(1):
"factual causation";[6] and
"scope of liability".[7]
[6] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[7] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Making these assessments of "factual causation" and "scope of liability" involves making value judgments.[8]
[8] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”^{^[8]}
In Briggs v IAG Limited t/as NRMA Insurance[9] Harrison AsJ considered an application for judicial review of a medical certificate issued by a Review Panel involving the application of
[9] [2020] NSWSC 1318.
s 1.6 of the Act. Section 1.6 of the Act refers to the definition of causation in the Glossary at page 314 of the AMA4 Guides. This is in relation to the assessment of permanent impairment as in the same terms as cl 6.6 and 6.7.

The Review Panel in Briggs was constituted by three Medical Assessors before the changes brought in by the Personal Injury Commission Act 2020 where a legal Member now constitutes one of the Panel.
The Review Panel’s certificate in Briggs’ case was set aside because of the lack of procedural fairness in basing their decision on an article about which the Review Panel had not given the parties the opportunity to make submissions. In particular AsJ Harrison found at [59], “[t]he terms ‘violent’ and ‘less than violent’, pulled from the article, introduce defined standards of severity which do not appear in the statue or relevant guidelines”.
Harrison AsJ at [57] confirmed that a Review Panel has “an obligation to set out its actual path of reasoning so as to enable a reader to determine whether it fell into error: see Wingfoot Australia Partners Pty Ltd v Kocak” [2013] HCA 43.
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues to be determined involved applying the definition of “minor injury” (now referred to as threshold injury) and involved a question of causation in respect of an amputated toe. As in Briggs, it was found the Review Panel had denied the plaintiff procedural fairness relying on articles not provided to the parties to enable them to make submissions in relation to the same. With respect to this review, the parties have been made aware of the medical authorities which were discussed. Submissions were invited about this from the parties but none were received.
Kinchela discussed the correct principles to apply relating to causation. These are set out below:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW (2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox (2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
In Briggs v IAG Limited trading as NRMA Insurance [2022] NSWSC 372, Wright J, regarding causation and the issues to be addressed, said;
“67 The second ground of review concerned the second review panel’s approach to the issue of causation. It was submitted that the panel applied an erroneous test in relation to causation and thus failed to exercise its jurisdiction.
68 As to whether the motor vehicle accident trauma was a cause of a “left posterolateral annular tear” with “mild disc desiccation” shown on Mr Brigg’s MRI test results, the second review panel concluded that causation had not been established because:
(1) ‘[a]t present, causation cannot be determined by medical imaging, unless there are sequential studies, either side of a motor vehicle accident and within a short time period’, and Mr Briggs only had post-accident MRI results;
(2) ‘a delamination may not fall within the definition of a tear’; and
(3) ‘the defect may not be the source of his pain and disability’.
69 The substance of the reasoning was that since there could be no scientific certainty that the L4/5 left posterolateral annular tear with mild disc desiccation was caused by the accident based on medical imaging and there was a possibility that the injury was not a tear and may not have been what led to Mr Brigg’s pain and disability, causation had not been established.
70 This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce [2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’’
71 The relevant principles were stated by Herron CJ, with whom Asprey and Holmes JJA agreed, in EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 as follows, at 242:
‘... it is not incumbent upon the applicant, upon whom the onus rests, to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, it seems to me that no medical witness states with certainty the very issue which the judge himself has to try.’
72 Furthermore, a finding of causal connection may be open without any medical evidence at all to support it, or when the expert evidence does not rise above the opinion that a causal connection is possible: Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 at 197 (Glass JA); Metro North Hospital at [140].
73 The second review panel did not address the question of whether on the balance of probabilities the motor vehicle accident caused the annular tear even though there might be no scientific certainty. Furthermore, the second review panel’s reasoning did not reflect the approach to determining causation in cll 6.6 and 6.7 of the Guidelines, which in my view is consistent with the legal principles I have outlined.
74 The present case is not one where medical science established that there was no possible connexion between the motor accident and Mr Brigg’s relevant injuries. From the material available, the second review panel accepted that the motor accident in this case could have caused or contributed to Mr Brigg’s L4/5 left posterolateral annular tear. Indeed, the panel expressly accepted that:
‘the plaintiff was involved in relatively severe front-end collision. The medical and biomechanical literature supports the conclusion that spinal injuries with resulting pain and disability can arise from this type of trauma.’
75 This being so, it was necessary for the panel to consider whether the motor accident did cause or contribute to Mr Brigg’s condition. This required, not a consideration of material derived as a result of an internet search for ‘all past and recent high-quality research articles pertaining to MRI imaging of the lumbar spine, with a focus on injury, degeneration and pain’, but rather a consideration of the material referred to in cl 5.6 of the Guidelines, namely all the evidence available to the panel including all relevant findings derived from:
(1) a comprehensive, accurate history, including pre-accident history and pre-existing conditions;
(2) a review of all relevant records available at the assessment;
(3) a comprehensive description of the injured person’s current symptoms;
(4) a careful and thorough physical examination; and
(5) diagnostic tests available at the assessment, noting that imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.
76 In Mr Briggs’s case that would include, without attempting to be exhaustive:
(1) Mr Briggs’s age, circumstances and relevant medical history at the time of the motor accident, including whether there was any previous history of lumbar spine pain;

(2) the particular nature and extent of the accident and the forces that would have been operative on Mr Briggs as a result of the accident; and
(3) Mr Briggs’s circumstances and relevant medical history including the MRI results and results of other medical examinations and testing, after the motor accident.
77 In light of all that material and in accordance with cll 6.6 and 6.7 of the Guidelines, the panel should then have made ‘a non-medical informed judgment’ as to whether it was likely that the motor accident caused or contributed to Mr Briggs’s injury in question.”
The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, and whether the treatment sought is reasonable and necessary and if it arises because of contribution by the accident. Following on from this, the Panel must decide whether the accident materially contributed to those injuries and need for treatment.
The insurer says that the claimant has misinformed the Medical Assessor and A/Prof Harber when he says he has not worked since the accident. A/Professor Harber recorded that the claimant had not worked since 28 February 2019.
The claimant informed the Medical Assessor that pain in his lower back affected his concentration and his ability to return to work. The claimant said that he could not work as a crane coordinator or mobile crane operator. The claimant also said that he had not returned to work since the accident. It is arguable that the claimant has provided an incorrect history.
It is not the role of the Panel to determine what the claimant regards as work. It seems that his pre-accident work was that of a crane operator, crane coordinator and a dogman. The surveillance depicts the claimant appearing to be undertaking a form of work in a factory setting operating a forklift and performing general lifting tasks in an unrestricted manner. This is inconsistent with the statements of the claimant about his ability to work, however, and the Panel speculates, he may have been limiting his statements to work involving a crane. The claimant was not seen in the surveillance undertaking any duties involving a crane.
The Panel cannot and does not make any determination on the credibility of the claimant, arising out of the surveillance observations.
The claimant was involved in a collision involving force. He was a passenger in a car which collided with a garbage truck. There was an initial side impact and the claimant was forcefully restrained by his seatbelt, running across his chest from left to right. Airbags were deployed. It was not until almost three months had passed since the accident when the claimant, on 17 May 2019, sought treatment at Bankstown Hospital for palpitations. There he was noted to have AF with a rapid ventricular response and was prescribed medication to relieve his condition. The claimant had another AF episode on 30 August 2019 when he sought treatment at Canterbury Hospital. A/Prof Kilborn diagnosed paroxysmal AF on
5 November 2019.
Medical Assessor Ackroyd, following his examination of the claimant said that the straightforward explanation of causation would be to say that the accident led to his post-traumatic stress disorder and subsequently his paroxysmal AF which is a pathway that has been described in the literature. Moreover, the chronicity of the paroxysmal atrial fibrillation led to A/Prof Kilborn performing an ablation with an early good effect. Medical Assessor Ackroyd said that this sequence of events has a sound basis in the medical literature.
Medical Assessor Parmegiani diagnosed the claimant as having post-traumatic stress disorder, which he attributed to the accident. The Medical Assessor said that from a psychiatric perspective, the claimant reported immediately after the accident the onset of classical symptoms of an acute stress reaction, including intrusive memories of the accident, flashbacks, nightmares, dysphoric mood, hyperarousal, and increased startle response area. These symptoms persisted well past one month and therefore, on the assessment of the Medical Assessor, came to fulfil diagnostic criteria for post-traumatic stress disorder.
There is no contemporaneous complaint following the accident of the claimant suffering AF. This first occurred 88 days after the accident and once again on 30 August 2019.
The Panel must consider would this injury have occurred if not for the accident? The answer is possibly, and possibly not. The occurrence of post-traumatic stress disorder is a gradual process and can lead to symptoms of AF, as noted by the Panel. Whilst the Panel cannot make its decision solely on the basis of no complaint having been made about AF for 88 days after the accident, this is a factor that must be considered by the Panel.
Before the accident, the claimant had been treated for palpitations but he had not been diagnosed as having AF.
The Panel is satisfied that on the balance of probabilities, the motor accident caused injury to the claimant which has given rise to the development of post-traumatic stress disorder , relying on the certificate of Medical Assessor Parmegiani,and following on from this, the claimant has become susceptible to AF.
The Panel is satisfied that the accident was a contributing cause to the development of AF, consequent on his post-traumatic stress disorder following the accident.
The Panel acknowledges that it does not have expertise in the specialty of psychiatry. However, the Panel relies on the finding and the certificate of Medical Assessor Parmegiani who attributed a diagnosis of post-traumatic stress disorder to the accident.

Reasonable and necessary

In AAI Limited v Phillips [2018] NSWSC 1710,Davies J was asked to consider the question of causation in determining whether proposed surgical treatment was related to injury caused by one or more of three motor accidents. That case considered the meaning of the words “whether any such treatment relates to the injury caused by the motor accident” where they appear in sub-section 58(1) of the MAC Act.
Davies J found the motor accident need only be a material contribution to the need for treatment. His Honour further stated the Panel should have considered whether the proposed surgery would not have arisen but for the occurrence of one or more of the accidents being considered.
The claimant is required to establish that the treatment is both “reasonable and necessary”. This test differs from the workers compensation legislation which requires a worker to establish that the treatment is “reasonably necessary”. There is a stricter requirement under the motor vehicle accidents legislation because there is no moderation of the requirement that the treatment is “necessary”.
When discussing the meaning of “reasonably necessary” under s 60 of the Workers Compensation Act 1987 in Clampett v WorkCover Authority of NSW [2003] NSWCA 52, Grove J stated:
“22 I return to the expression ‘reasonably necessary’ in s60. Dictionaries stipulate that ‘necessary’ has relevant definition as ‘indispensable, requisite, needful, that cannot be done without’ - (Shorter) Oxford English Dictionary, 3rd Ed and ‘that cannot be dispensed with’ - Macquarie.
23 The essential issue is what effect flows from conditioning such qualities as ‘reasonably’. The consequence is to moderate any sense of the absolute which might otherwise be conveyed by the word ‘necessary’ if it stood alone. In order to contemplate such moderation, it is apt to consider surrounding circumstances, but the question to be addressed is whether modification of a worker's home, having regard to the nature of the worker's incapacity, is reasonably necessary . In contemplation of what might be ‘reasonably necessary’ there is this statutory obligation specifically to have regard to the nature of the worker's incapacity. It provides emphasis towards moderating the meaning of ‘necessary’ in this context.”
Similar observations have been subsequently made by the Court of Appeal on the meaning of “reasonably necessary” under other legislation - See ING Bank (Australia) Ltd v O’Shea [2010] NSWCA 71 at [48]; Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 445 at [113].

The Panel must ask itself whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, and whether the treatment sought is reasonable and necessary and if it arises because of contribution by the accident. Following on from this, the Panel must decide whether the accident materially contributed to those injuries and need for treatment.
The Panel has relied on a research paper evidencing that exposure to extremely stressful automatic life events and subsequent development of post-traumatic stress disorder is associated with a risk of atrial fibrillation. The parties were each provided a copy of the following research papers;
· Posttraumatic Stress Disorder and Risk for Early Incident Atrial Fibrillation: A Prospective Cohort Study of 1.1 Million Young Adults. J Am Heart Assoc 2019;8:e013741.DOI: 1161/JAHA.119.013741, and
· Psychological aspects of atrial fibrillation: a systematic narrative review. Current Cardiology Reports (2020)22;137. >
The parties were invited by the Panel to provide any submissions they would like to make with respect to the issue of the connection between post-traumatic stress disorder and resultant atrial fibrillation. Neither party made any submissions about this.
The claimant was assessed by Medical Assessor Parmegiani who noted that the claimant feared for his life at the time of the accident. This event involved a truck unexpectedly crossing in front of the claimant’s car and a collision occurring with the side of the truck. The air bags were deployed. The Panel accepts that such an event could have provoked life threatening considerations.
A/Prof Kilborn was satisfied that AF is often influenced crucially by an autonomic state and that this may have been affected by whiplash injuries suffered by the claimant. The Panel does not accept that the claimant’s AF has been brought about by an autonomic state triggering AF.
The AF, following the accident, did not present until 88 days after the accident on
17 May 2019. Subsequently, the claimant has had several hospital visits with episodes of AF. It is the conclusion of the panel that this AF is not brought on by autonomic condition but rather by the development of post-traumatic stress disorder.
Medical Assessor Parmegiani has certified that the claimant’s post-traumatic stress disorder arises from the accident. This is a psychiatric assessment however, the Panel relies on this assessment as evidencing the claimant’s condition. Following on from this, the Panel is satisfied that the condition of post-traumatic stress disorder has, over a period of 88 days and thereafter, brought about the condition of AF.
The Panel is not satisfied that the claimant’s condition has been brought on by physical injuries but is satisfied that his condition is brought on by post-traumatic stress disorder. But for the accident, the claimant would not have suffered post-traumatic stress disorder, relying on the findings of Medical Assessor Parmegiani.
Medical Assessor Chan said that if the accident had caused the AF then the AF would have been evident immediately after the accident and whilst he was in Liverpool Hospital. That may well be a correct statement, relying on the claimant’s physical injuries. However, as the Panel has said, the AF arises from the claimant’s psychiatric condition, relying on the findings of Medical Assessor Parmegiani.
Associate Professor Kilborn has not considered the contribution of post-traumatic stress disorder to the claimant’s AF.
On the evidence available, the Panel is satisfied that the accident has contributed to the claimant’s physical injuries and to his psychiatric injuries. As has been noted, the claimant’s psychiatric injuries have already been considered by the Commission. Following on from this the Panel is satisfied that the treatment sought is reasonable and necessary and arises because of contribution by the accident. The accident has materially contributed to the claimant’s injuries and the need for treatment. All of the evidence available to the Panel includes a psychiatric assessment from Medical Assessor Parmegiani.
The claimant says that he is a natural bodybuilder. That means that while he might take supplements to improve his body condition, those supplements do not include andrenergic anabolic steroids (AAS). There has been a suggestion that the claimant did take anabolic steroids to improve his body condition but the claimant, to Medical Assessor Ackroyd, denied this. Whilst it has some reservations, the Panel has no evidence before it to confirm that the claimant has taken AAS and therefore accepts that he only used supplements and not AAS.
On the balance of probabilities, the Panel is satisfied that as a result of the accident on
28 February 2019 the claimant has suffered a psychiatric disability of post-traumatic stress disorder as diagnosed by Medical Assessor Parmegianni. The Panel is satisfied that consequent upon this diagnosis of PTSD, the condition of AF has occurred 88 days later on 17 May 2019 and is causally related to the accident.
Whilst A/Prof Kilborn attributed the development of AF to the claimant’s whiplash injuries the Panel does not agree with this. However, the claimant has nevertheless developed AF which the Panel is satisfied arises from the claimant’s P post-traumatic stress disorder caused by the accident.
However, the AF has occurred, it is a consequence of the accident and the Panel is satisfied that it needed to be treated.
The Panel is satisfied that treatment and care of this condition by A/Prof Kilborn is reasonable and necessary.

CONCLUSION

The following treatment and care does relate to the injuries caused by the motor accident:
(a) the proposed initial consultation with A/Prof Michael Kilborn.
The following treatment and care is reasonable and necessary in the circumstances:
(a) the proposed initial consultation with A/Prof Michael Kilborn.

DETERMINATION

The certificate of Medical Assessor Chan dated 2 June 2022 is revoked.
The following treatment and care does relate to the injuries caused by the motor accident:
(a) the proposed initial consultation with A/Prof Michael Kilborn.
The following treatment and care is reasonable and necessary in the circumstances:
(a) the proposed initial consultation with A/Prof Michael Kilborn

Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

[2024] NSWPICMP 264

1 May 2024