Clarke v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Clarke v Allianz Australia Insurance Limited [2023] NSWPICMP 177
CLAIMANT:	Kevin Clarke
INSURER:	Allianz Australia Insurance Limited
REVIEW Panel
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	2 May 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a driver in a rear end collision; injuries reported to: neck, left shoulder, cervical and lumbar spine, and right knee; claimant stopped at red traffic light; claimant gave evidence that other vehicle travelling between 40 up to 60 km/h; Held – original Medical Assessment Certificate (MAC) certifying all minor injuries was set aside; Panel issued a new MAC; claimant’s injuries caused by the motor accident and are threshold injuries (formerly minor injuries); soft tissue injury to the left shoulder, whiplash injury to cervical and lumbar spine and soft tissue injury right knee; evidence from other driver was that the impact was a low-speed bump; expert evidence mechanical engineer that vehicle impact was a low-speed impact; Panel did not accept the claimant’s account of the speed of impact; Panel found all injuries suffered by the claimant were soft tissue injuries; Panel also found that a left shoulder labral tear and fracture in the right leg occurred subsequently to the subject matter accident and were not caused by it; Panel cited with approval decision in QBE Insurance (Australia) Ltd v Shah at [16] and [17]; biomechanical causation of injury in a motor vehicle accident.
DETERMINATIONS MADE:	1. The Review Panel revokes the certificate of Medical Assessor Mohammad Assem dated 1 August 2022 and issues a replacement certificate determining that the following injuries caused by the motor accident are threshold injuries (formerly minor injuries): • cervical spine – whiplash injury with aggravation of C5/6 spondylosis- soft tissue injury; • lumbar spine – soft tissue injury • left shoulder – soft tissue injury, • right wrist – soft tissue injury, and • right knee – soft tissue injury.

STATEMENT OF REASONS

INTRODUCTION

On 5 November 2020 Mr Kevin Clarke (the claimant) was the driver of a VW commercial van. He was driving on Wallgrove Road, Minchinbury, NSW when he stopped at a traffic light intersection. Shortly after he stopped his van was hit from behind by a medium-size truck. Mr Clarke stated that his van was pushed forward approximately one meter by the collision.
After the accident Mr Clarke drove himself to Nepean Hospital where he was assessed and discharged later that same day with pain relief.
In the Application for Personal Injury Benefits dated 10 November 2020.[1] Mr Clarke states that the accident occurred whilst he was waiting at a red light when the other driver crashed into the rear of his vehicle claiming that he had fallen asleep at the wheel of his truck. Mr Clarke stated he sustained the following injuries as a result of the accident:
(a)     neck and shoulder pain;
(b)     upper and lower back pain, and
(c)     knee pain in the right leg.
[1] Insurer bundle AD3 page 10.
Allianz Australia Insurance Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Clarke under the Motor Accident Injuries Act 2017 (MAI Act).
Medical Assessor Mohammad Assem issued a certificate dated 1 August 2022 in which he certified that the injuries sustained by Mr Clarke are all a minor injury for the purposes of the MAI Act.
As a result of the certificate, Mr Clarke has no entitlement to ongoing statutory payments or any entitlement to pursue a claim for damages arising out of the accident.
Mr Clarke has sought a review of the certificate of Medical Assessor Assem.

BACKGROUND

At the date of the accident Mr Clarke was 32 years of age and worked as a full-time electrical technician at a fire service.
On 10 November 2020 Mr Clarke lodged an Application for Personal Injury Benefits.
On 5 November 2021 the insurer determined the injury sustained by the claimant was minor and therefore the claimant was not entitled to pursue a claim for damages.
The claimant’s solicitors sought an Internal Review of that decision. On 7 December 2021 the insurer issued their Internal Review – Certificate of Determination and Statement of Reasons.[2] This decision affirmed the insurer’s earlier decision that all the injuries suffered by Mr Clarke in the accident fell within the definition of minor injury.
[2] Claimant bundle AD 3 pages 17-31.
The claimant filed an application with the Personal Injury Commission (the Commission) seeking a medical assessment to resolve the minor injury dispute between the parties.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be a medical assessment matter, including (e) “whether the injury caused by the motor accident is a minor injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor.[3]

ASSESSMENT UNDER REVIEW
[3] Section 7.20 of the MAI Act.

The dispute was referred to Medical Assessor Assem who assessed Mr Clarke and issued a certificate dated 1 August 2022.[4]
[4] Certificate dated 1 August 2022.
The injuries referred for assessment included: cervical spine, lumbar spine, right knee, left shoulder and right wrist.
Medical Assessor Assem medically examined the claimant on 25 July 2022. He referred to the history of the motor accident, the history of symptoms and treatment following the motor accident, detailed the current symptoms and set out the current and proposed treatment. Medical Assessor Assem examined the claimant’s cervical spine, left shoulder, lumbar spine, and left knee. He found that Mr Clarke’s injuries were consistent with the photographs showing minor damage to of symptoms. Medical Assessor Assem referred to the reports of Dr Porteous and the engineering report of Michael Griffiths.
Medical Assessor Assem detailed and summarised the radiological and medical imaging evidence of the claimant’s: right knee, cervical spine and left shoulder. He found that the
X-ray of the right knee showed there was no fracture detected. Regarding the CT of the cervical spine he found no acute cervical spine injury. Regarding and MRI of the cervical spine and right knee he found no internal derangement of the right knee but a possible disc bulge at the C5/C6 level. Regarding the X-ray and ultrasound of the left shoulder he found no acute bone injury, no rotator cuff tear, some evidence of bursitis. Regarding another MRI of the left shoulder he found no evidence of internal derangement of the left glenohumeral joint. Finally for an MRI of the right knee he noted subchondral stress, insufficiency fracture of the medial femoral condyle.
In his reasons Medical Assessor Assem accepted there was a minor soft tissue injury to the claimant’s neck, left shoulder and right knee based upon contemporaneous medical evidence. There was no history of injury to the claimant’s lower back nor to the right wrist. Regarding the cervical spine he found soft tissue injuries but on clinical examination the claimant did not satisfy the diagnosis of radiculopathy as defined in the Guidelines.
Medical Assessor Assem found that the motor vehicle accident was highly unlikely to have caused any injury to the left shoulder and he found that it was most likely a pre-existing condition. Regarding the right knee he noted that radiological imaging taken soon after the accident was normal and subsequent imaging showing the insufficiency fracture was not visible in the earlier radiological imaging.
Medical Assessor Assem’s diagnosis is that based on the history of the accident, mechanism of injury and the clinical and medical imaging findings. He found that Mr Clarke had the following injuries which were caused by the motor accident:
(a)     cervical spine – soft tissue injury;
(b)     left shoulder – soft tissue injury, and
(c)     right knee – soft tissue injury.
Medical Assessor Assem found that the following injuries were not caused by the motor accident:
· lumbar spine - musculoligamentous sprain, and
· right wrist – soft tissue injury.

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Assem was lodged within 28 days of the date on which the certificate was made available to the parties.
On 6 October 2022, the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect referred the medical assessment to the Review Panel (the Panel). The delegate’s reasons were that the medical assessor had not provided any confirmation in the Medical Assessment Certificate that the reported inconsistencies were “brought to the Claimant’s attention” nor that the claimant had “an opportunity to respond to the inconsistent observations”, as required by clause 6.41 of the Guidelines. The Presidents delegate referred to the decision in AAI Limited v Fitzpatrick [2015] NSWSC 1108 where it was held (at [30]) that:
“The conclusions expressed in the certificate must then be explained by the assessor in the accompanying statement of reasons. While the reasons given need not be elaborate, they must disclose the actual path of reasoning by which the assessor arrived at the opinions formed on each of the issues which had to be resolved”.
Clause 14F of Schedule 1 of the Personal Injury Commission Act 2020 (the PIC Act) provides that the new review provisions apply in relation to a decision of a new decision-maker. A “new decision maker” is defined in cl 14A(1) of Schedule 1 of the PIC Act. As the medical assessment the subject of the review was made on or after 1 March 2021, the new review provisions apply.
The new review provisions provide that a review panel consists of two Medical Assessors and a Member assigned to the Motor Accidents Division of the Commission.[5] Accordingly, the President’s delegate referred the matter to this Panel to assess.
[5] Section 7.26(5A) of the MAI Act.
Part 5 of the PIC Act enables the Commission to make rules with respect to the practice and procedure before the Commission including proceedings before a panel reviewing a decision of a Medical Assessor.[6]
[6] Section 41(2) of the PIC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the PIC Act. A review panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[7]
[7] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned. However, s 7.25 of the MAI Act provides that the review of a medical assessment can be made on the basis of any agreement by the parties as to the degree of permanent impairment from a particular injury and whether a particular injury was caused by the accident, without those matters having to be the subject of assessment.
The Panel issued a Direction to the parties requiring each party to file an indexed, paginated bundle of documents. In response to this Direction the solicitor for the claimant and insurer both filed a bundle of documents.

THRESHOLD INJURY (formerly minor injury) – STATUTORY PROVISIONS

The Motor Accident Injuries Amendment Act 2022 (the MAI Amendment Act) was assented on 28 November 2022 with various amendments commencing on 1 April 2023. From 1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
Any reference in these reasons to “minor injury” is taken to be a reference to a “threshold injury” and any reference to the word “minor” referring to the injury alleged to have occurred in the accident is a reference to “threshold”.
A threshold injury is defined in s 1.6 of the MAI Act and includes a “soft tissue injury” or a “psychological or psychiatric injury that is not a recognised psychiatric illness”.
Sub-section 1.6(2) of the MAI Act defines a “soft tissue injury” as:
“[A]n injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.”
Section 1.6 of the MAI Act provides that Regulations may be made to exclude or include a specified injury from being a threshold injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)”.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by the motor accident is a threshold injury for the purposes of the MAI Act.
Version 9.1 of the Guidelines commenced on 1 April 2023 and applies to motor accidents occurring on or after 1 December 2017. In respect of the medical assessment of whether an injury is a threshold injury, the Guidelines relevantly provide:
“5.3   The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Insurers should not require injured persons to undergo diagnostic imaging for the purpose of the insurer determining whether the injury related to the claim is a threshold injury. Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6     The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
In respect of injury to the neck or spine Clauses 5.7, 5.8 and 5.9 of the Guidelines provide:
“5.7   In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.
5.8    Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination when they are assessed in accordance with ‘Part 6 of the Motor Accident Guidelines: Permanent impairment’.
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs(see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
5.9    Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
In Briggs v IAG Limited trading as NRMA Insurance[8] his Honour Justice Wright stated at [35]:
[8] Briggs v IAG Limited Trading as NRMA Insurance [2022] NSWSC 372.
“The question of causation of injuries was not dealt with in Part 5 of the Guidelines but causation was addressed in Part 6, which related to assessment of permanent impairment. There is no reason to think that different principles were intended to be applied when a medical assessment was being made in relation to causation of minor injuries. Clauses 6.5 to 6.7 provided:
‘Causation of injury
6.5An 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 claims assessor) in considering such issues.
6.6Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1.The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7There 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.”

EVIDENCE BEFORE THE REVIEW PANEL

Treating medical evidence

Pre-accident treating records

There are few medical records available for the claimant’s medical history prior to November 2020.[9] The available records are contained in the claimant’s bundle of documents are from Abbey House Medical Centre Clinical Notes in Ireland. These notes do not disclose any relevant or significant medical issues or history that appear to be relevant to the injuries sustained by the claimant in his motor vehicle accident on 5 November to 2020.
[9] Claimant bundle AD2 page 145-153.
The treating general practitioner (GP) notes from Dr Lim at the My Health Potts Point Medical Centre Potts Point,[10] and various other pre-accident treatment records are available from November 2020 until late 2021.
[10] Insurer bundle R 11 and claimant bundle AD2 pages 1-19.
There are some there are some references by Dr Porteous and Dr Smith and other doctors to the claimant working in the WA mines in 2018 prior to his move to Sydney. None of the claimant’s medical records for his time in WA are available to the Panel.

Post-accident treating records

Mr Clarke states that the accident occurred whilst he was waiting at a red light when the other driver crashed into the rear of his vehicle claiming that he had fallen asleep at the wheel of his truck.[11] Mr Clarke stated he sustained the following injuries as a result of the accident:
(a)     neck and shoulder pain;
(b)     upper and lower back pain, and
(c)     knee pain in the right leg.
[11] Claimant bundle AD2 page 10.

The claimant told Nepean Hospital that he was hit from behind by another truck driving at approximately 40km/hr.
The discharge summary from Nepean Hospital dated 5 November 2020 notes that Mr Clarke presented with some spinal tenderness and right knee tenderness with swelling. A CT scan of his spine and X-ray of his right knee did not show any acute fractures however the hospital advised Mr Clarke that if pain persists issue present for an MRI or ultrasound to investigate for ligamentous damage.
The certificate of capacity dated 9 November 2020 diagnosis the injury as whiplash associated disorder and right knee sprain – grade 2. The doctor comments that the claimant is unable to fully extend his knee. His right side neck is very stiff with a limited ROM.

48. In a Patient Health Summary dated 15 December 2020 there is a record of the claimant complaining of right knee pain. There is a note that he thinks he may have twisted his right knee whilst having his foot on the brake of the car. He does not think his knee hit the car dashboard.

There are a number of certificates of capacity dated from November 2020 until December 2021. The last certificate of capacity notes that the claimant is not fit for work until 4 January 2021.
A record of a GP surgery visit with Dr Lim dated 4 February 2021, Dr Lim notes that the claimant’s right knee pain continues and also his left neck and left shoulder pain continue.
A record of a GP surgery visit with Dr Lim dated 27 May 2021 , Dr Lim notes that the claimant’s right knee is 70% improved and left shoulder ROM is very good.
A record of a GP surgery visit with Dr Lim dated 27 July 2021 notes left shoulder improving as expected and right knee pain recurrence.
The claimant’s treating psychologist is Ms Kathleen MacLaren. A copy of Ms McLaren’s clinical notes for about 20 visits have been produced in the insurer bundle.[12] Much of the detail in the notes about the claimant’s mental health are not relevant to the issues to be decided in this Panel review. The Panel does note that the predominant factor complained of by the claimant is a substantially contributing factor to his symptoms of depression and anxiety is it is difficult situation work where he alleges he was bullied about the need to go back to work and allegations from his employer that the claimant was: “faking all” his injuries.
[12] Insurer bundle R 7.
Ms McLaren’s clinical notes do make some references to the claimant’s physical injuries or problems. There are several notes in the clinical notes about his knee and shoulder complaints. There is a note dated 17 July 2021 about the knee. The note says: “knee is back the way it was might, the have to have more surgery? Couldn’t do squat.” On 18 September 2021 there is a note that the claimant had an MRI on his knee and that it is still fractured but that he has now gone off his crutches. The claimant said that the knee feels unstable.
In notes dated 21 August 2021 the claimant stated that his knee has been a problem in beginning and that he accepts it will take six months to improve. The claimant wants a knee reconstruction.

Medico-legal reports and other reports

Many of the medico-legal and radiology reports are summarised in the below section headed review of radiology. Set out immediately below are a number of other relevant reports.

Dr Timothy Yeoh, shoulder and knee surgeon.

On 2 December 2020 the claimant was examined by Dr Yeoh. He found some bicep tenderness with a full range of motion but pain on elevation. Dr Yeoh stated that the claimant was involved in a motor vehicle accident where he wrenched his shoulder and sprained his knee. He reported that the knee has now completely recovered but the shoulder continues to give him pain. Dr Yeoh reviewed the claimant’s X-rays and MRI scan of the knee, ultrasound of the shoulder none of which revealed any abnormality. Dr Yeoh reported that he suspected from his clinical examination that the claimant may have a biceps tear.
On 7 December 2020 Dr Yeoh reported that the claimant’s MRI scan of his left shoulder has shown a superior labral tear where the biceps inserts.
On 15 December 2020 Dr Yeoh reported that whilst the MRI scan does show a Buford complex it also shows a posterosuperior labral tear just posterior to the biceps insertion.
On 17 December 2020 Dr Yeoh successfully arthroscopic labral repair on the claimant.
On 21 April 2021 Dr Yeoh reported that the claimant is now 14 weeks post his left shoulder arthroscopic repair. The pain he had prior to the operation has now gone but he is complaining of periscapular pain which is not regarded as uncommon. He achieved 150° of elevation, 30° of external rotation and internal rotation to T10.
In a report dated 14 July 2021 Dr Yeoh wrote to the insurer. He wrote that the claimant’s injury is unlikely to have been caused by anything other than the accident seeing as he had no shoulder symptoms prior. Dr Yeoh said that the claimant showed no evidence of any pre-existing injury. Dr Yeoh also wrote that it was hard to know whether the labral tear was asymptomatic and present before the injury. He said there was no way for this to be known. Although Dr Yeoh knows is that the claimant told him that his shoulder was normal before the accident and painful after the accident.
On 21 July 2021 Dr Yeoh reported that the claimant is now six months post his arthroscopic labral repair. He has a symmetric range of motion and he is getting stronger day by day. The claimant reported to Dr Yeoh that is very happy with how his shoulder is going. Dr Yeoh counselled him to expect that he will continue to improve for six months. Dr Yeo also recorded that unfortunately claimant’s right knee is now causing him problems despite multiple injections.
On 6 August 2021 Dr Yeoh reported that the claimant’s MRI scan of his right knee shows he has a medial femoral condyle stress fracture. The claimant told Dr Yeoh that he has had this knee pain since November 2020 at the time of the accident. Dr Yeoh says that the contemporaneous MRI scan at the time of the accident shows no pathology.

Dr Andrew Porteous, occupational physician.

On 10 August 2021 the claimant was examined by teleconference by Dr Porteous. The claimant reported to Dr Porteous that the time of the accident he had his left arm up on the steering wheel in his right foot on the brake. At the examination, the claimant said that prior to the left shoulder repair performed on 11 January 2021 he had some mild pins and needles in the left arm with some occasional shooting pain but his left arm was now much worse after surgery.
The claimant also reported that he had ongoing knee pain and that he had recently had MRI scan of his right knee and was told he had a fracture and was to use crutches for six weeks the claimant told Dr Porteous that he had ongoing pain and restrictions and was off work. He said he had a depressed mood and was seeing a psychologist weekly and had been since February 2021.
The claimant reported that in his current condition he got chronic neck pain which spread into his thoracic spine left shoulder left arm and hand. He also reported his right shoulder being in pain. He also reported chronic lumbar back pain and right knee pain he says he has difficulty sleeping and he reports his mood being low but has not filled his prescription for antidepressants.
On examination Dr Porteous recorded that Mr Clark had increased his body weight from 88kg to 97kg. There was full flexion and extension of the cervical spine limited rotation. The claimant had full right shoulder range of motion with the left shoulder having some restriction of flexion and abduction and internal rotation otherwise the left shoulder movements were normal. His thoracic spine had full rotation. Lumbar spine had reduced extension and flexion and lateral movement with some guarding and dysmetria but no spasm.
Dr Porteous noted that the claimant had not returned to work since the motor accident and his employment was terminated in June 2021. He has not worked since that time.
Dr Porteous diagnosis are of soft tissue musculoligamentous sprain injuries to the cervical spine, left shoulder, lumbar back and right knee. There is evidence of a cervical spine MRI of a C5/6 disc protrusion with possible nerve impingement. The original MRI scan of the right knee showed no evidence of soft tissue injury. The more recent MRI scan of the right knee showed some chondral stress insufficiency suggesting of a subtle fracture of the medial femoral condyle. This should be verified.
Dr Porteous noted that the claimant had all of these conditions since the subject accident and he can only conclude that they are as a result of that accident. The claimant’s report right shoulder pain is also more likely as a result of the accident.
Dr Porteous assessed Mr Clark with a total whole person impairment of 13%.

Dr Glenn Smith, clinical and forensic psychiatrist

Dr Smith assessed Mr Clark for psychiatric assessment and report on 1 November 2021 by telehealth.
Dr Smith noted in the claimant’s history that he has attended a psychologist since February 2021 and attends physiotherapy twice a week.
Dr Smith referred to some clinical notes from Ms Kathleen Maclaren who is Mr Clarke’s treating psychologist. The notes refer to the claimant’s flashbacks, frustration and anger and his job loss. The claimant reported having a breakdown and has some suicidal ideation.
The claimant told Dr Smith that his vehicle was hit at the rear by a truck travelling at around 50 to 60 km/h and that he had his hands on the steering wheel in his foot on the brake. No airbags were deployed. Mr Clark stated that he could have been killed if he wasn’t wearing a seatbelt.
The claimant reported to Dr Smith that he found it difficult to sleep was anxious and could not drive a vehicle. He reported a depressed mood due to persistent pain and limited function. He reported suicidal ideation. Mr Clark reported seeing a psychologist, Ms Kathleen Maclaren for about 20 sessions who diagnosed him with post-traumatic stress disorder and depression. She recommended psychotropic medication but he decided medication.
Have reduced interest and enjoyment in activities. Continues to suffer from the wrist shoulder and back pain. He has difficulty sleeping and has nine man’s. He avoids driving and feels anxious when travelling as a passenger in a car.
Dr Smith diagnosed claimant with post-traumatic stress disorder and an adjustment disorder with mixed anxiety and depression and assessed Mr Clark with a total whole person impairment of 24%.

Report of Michael Griffiths, biomedical and mechanical engineer

In a report dated 26 October 2021 Mr Griffiths wrote a detailed report about the motor accident on 5 November 2020.[13] The report contains photographs of the two vehicles involved which show minor dents in the bumpers of both vehicles will. The report concludes that there was no possible mechanism of injury to the claimant’s right knee, left shoulder, cervical or lumbar spine. Mr Griffiths writes that the injuries to the claimant’s knee and shoulder are that used to be pre-existing injuries from his occupation.
[13] Insurer bundle R 1 at R 8, pages 120-159.
In his report Mr Griffiths refers to the description of the accident by the other driver of the truck. The truck driver says he was sitting at traffic lights and fell asleep so the vehicle rolled forward and bumped into the other driver. In his personal injury claim form the claimant states that he was waiting at a red light and the other driver crashed into the rear of my vehicle and claimed to have fallen asleep at the wheel.
Mr Griffiths concludes in his report that because the claimant’s vehicle was hit in the rear this would have caused the claimant’s body to respond by moving back into his seat as his vehicle moved forward when the collision occurred. Because of this movement there is no possible mechanisms of injury to the claimant’s neck, left and right shoulders, back or right knee. Mr Griffiths further concludes that any of the evidence of abnormal pathology must have been pre-existing and a likely consequence of the claimant’s recreational or other occupational activities.

REVIEW OF THE RADIOLOGY

In a report of an X-ray to the right knee dated 5 November 2020 Dr Woodford reported there was no fracture detected and that the knee joint alignment is preserved. She also reported that there was a small suprapatellar effusion.
In a report of a CT cervical spine scan dated 5 November 2020, Dr Ramaswami wrote that there were no acute cervical spine injuries evident.
In a report dated 9 November 2020 about an MRI of the cervical spine and right knee Dr Sabharwal observed that there was present at the C5 /C6 level a disc bulge and mild narrowing. For the right knee he observed no meniscal tear or other tears. He concluded that there was no internal derangement of the right knee joint.
In a report dated 20 November 2020, Dr James Black reported on an X-ray and ultrasound of the left shoulder. In the X-ray he found the glenohumeral alignment is normal on each side, no fracture and normal AC joint alignment. In the ultrasound he found no rotator cuff tear or tendonsis. He observed that the bursa was mildly thickened and there with some mild bursal bunching. He found no acute bony injury, no rotator cuff tear and some evidence of bursitis.[14]
[14] Insurer bundle AD 3, page 150.
On 4 December 2020 Dr Brad Milner reported on an MRI of the claimant’s left shoulder.[15] He found the biceps intact, normally attached and of normal appearance. He also found all the tendons were intact and of normal appearance he found mild thickening of the middle glenohumeral ligament. Dr Milner concluded there was no evidence of internal derangement of the left glenohumeral joint.
[15] Insurer bundle AD 3, page 152
On 22 July 2021 Dr Tim Dickenson reported on a MRI scan of the right knee. This scan showed a subchondral stress or insufficiency fracture of the medial femoral condyle. There is also noted and associated joint effusion that was not previously present.

SUBMISSIONS

Claimant’s submissions

The claimant’s solicitors provided a bundle of documents dated 16 January 2023 in support for an application for review to a review panel.[16] The bundle contained medical reports and records but did not attain any written submissions on behalf of the claimant’s application for review. The only written submissions received from the claimant’s solicitors were the submissions made in support of an application for review of the original medical assessment of Medical Assessor Assem.[17]
[16] Claimant bundle AD 2.
[17] A1 dated 26 August 2022.

Insurer’s submissions

The insurer provided written submissions dated 27 January 2023.[18]
[18] AD 2.
The insurer notes that the other driver of the insured truck states that he fell asleep while stopped at the lights and his truck rolled forward and bumped into the car in front.
The insurer refers to photographs of the damage to the claimant’s car which shows a small dent on the rear bumper with some paint removed.
Insurer submits that all of the claimant’s injuries were minor injuries for the purposes of the MAI Act.
The Insurer submits that it is clear from the available radiological, treating and biomechanical evidence that the claimant did not sustain any structural injury to the cervical spine as a result of the accident.
Regarding the right knee the claimant’s certificate of capacity dated 9 November 2020 records a diagnosis of right knee sprain nor in subsequent certificates of capacity. The claimant’s clinical consultation note dated 6 November 2020 reports the claimant had a right knee strain but that the claimant does not think his knee hit the car dashboard. The initial
X-ray and the further MRI reported no internal the derangement of the right knee. Any subsequent reference to a stress fracture cannot be deemed to be caused by the motor accident.
Regarding the left shoulder injury, insurer notes that there were no fractures present in the left shoulder and MR insurer disputes that this injury did not occur in the motor accident because it was not listed in his application for personal injury benefits and an ultrasound confirmed no tears or fractures. Based upon the available radiological and biomechanical evidence insurer submits that the claimant suffered a minor injury to his left shoulder in the motor accident.
Regarding the lumbar spine the claimant only suffered a sprain injury to the lumbar spine which is a soft tissue injury.
Regarding psychiatric condition the claimant’s psychologist’s clinical notes indicate the claimant was subject to workplace bullying and harassment and any psychiatric injury. It is not as a result of the motor accident but rather caused by his work stresses.
Regarding the right wrist injury, the insurer disputes that the injury occurred in the motor accident because no injury was listed in the claimant’s application for personal injury benefits and the certificates of capacity do not list any right wrist injury.
The insurer also noted that none of the radiological reports provided evidence to demonstrate that the claimant had sustained other than a minor injury.

MEDICAL EXAMINATION

Mr Clarke was examined by Medical Assessor Dixon on 13 February 2023.
On 13 February 2023 the claimant presented as 6’3” tall and weighed 93kg.
On examination there was stiffness of his cervical spine with flexion and extension decreased by one third and lateral rotation decreased by one quarter bilaterally and lateral flexion decreased by one third bilaterally. He had tenderness of the lower cervical spinous processes including the vertebra prominens. There was no neurological deficit of either upper extremity. His reflexes were symmetrical. There were no objective sensory changes and power was grade 5 out of 5. Grip strength, intrinsic power and thenar power were grade 5 out of 5 and there was no neurovascular deficit of either hand. There was no spasm of the trapezius muscles nor guarding of his neck.
There was stiffness of his left shoulder with active abduction 110 degrees with forward flexion 120 degrees, extension 40 degrees, adduction 40 degrees, external rotation 70 degrees and internal rotation 40 degrees. His shoulder girdle power on the left was grade 4 out of 5. There was tenderness of the trapezius muscle overlying the scapula region as well as the posterolateral deltoid. There was no winging of the left scapula on resisted protraction. There was no tenderness in the biceps groove.
There was a full ROM of the right shoulder where power was grade 5 out of 5.
The ROM of the right wrist was mildly restricted with dorsi flexion 60 degrees, palmar flexion 30 degrees, radial deviation 20 degrees, ulnar deviation 30 degrees and pronation and supination were full. There was tenderness over the dorsum of the wrist in the region of the scapholunate ligament. There was no crepitus on wrist rotation at the distal radio ulnar joint and the ulnar styloid and radial styloids were non tender. His grip strength was grade 5 out of 5 as was thenar power and intrinsic power of the right hand.
There was a full ROM of the left wrist.
In the thoracic spine, there was stiffness on trunk rotation with lateral rotation decreased by one quarter. There was mild tenderness in the interscapular region which appeared to be in the trapezius muscle extending down from the neck and left shoulder.
There was stiffness of his lumbar segment with flexion decreased by one third with slow and jerky recovery with right sided erector spinae muscle spasm with pain on back extension which was decreased by one half and lateral flexion to the right decreased by one third and that to the left by one third. Straight leg raise was 70 degrees on the left and 60 degrees on the right and that on the right was associated with some buttock pain. There was no sciatica and his sciatic nerve root stretch tests were negative.
There was tenderness at the L4/5 level in the mid line and the adjacent lumbosacral facet joints.

His right knee appeared stable, in terms of the collateral ligaments and the anterior and posterior drawer signs (around the cruciate ligaments) were negative. There was, however, patellofemoral subluxation with a positive apprehension test and retropatellar crepitus. He had a limp on the right more marked on toe and heel walking. The ROM of the right knee was 0 degrees through to 120 degrees. He was unable to reproduce full recurvatum of the knee as he was on the left, where the range of motion was 0 degrees through to 130 degrees. That knee was stable as was the patellofemoral joint.
He had tenderness at the lateral aspect of his right knee where he has had three PRP injections and two cortisone injections but there was no apparent ligamentous instability of the lateral collateral ligament, although he had been reported as having a lateral ligament strain.
There was audible crepitus on squat testing which was restricted by knee pain and he reported this was especially so when using stairs and he reported some instability of the knee when going down stairs, which appears to be due to patellofemoral subluxation.
There was 1cm of wasting of his right thigh and his right leg below the knee.
He had a full ROM of his hips, ankles, feet and toes.

Investigations

His imaging studies include a CT of the cervical spine on 5 November 2020 which showed no acute spinal injuries.
MRI of the cervical spine on 9 November 2020 showed disc bulge on the left at C5/6, potentially irritating the left C6 nerve root. A syrinx was noted in the cervical and upper thoracic cord.
X-ray and ultrasound of the left shoulder on 20 November 2020 showed no acute bony injury and no gross rotator cuff tear. There was some subacromial bursitis.
MRI of the left shoulder on 4 December 2020 showed superior labral tear and this was confirmed at arthroscopic review of the shoulder by Dr Yeoh at St Vincent’s Hospital in January 2021 where he did a left arthroscopic labral repair and biceps tenodesis.
MRI of the right knee on 22 July 2021 showed a subchondral stress/insufficiency fracture of the medial femoral condyle without any other significant internal derangement.
There was no imaging study of his right wrist which appears to have been a soft tissue sprain. No fracture was reported.
His diagnoses are:
·        whiplash injury to cervical spine with aggravation of C5/6 spondylosis with C5/6 disc bulge without dysmetria, spasm or radiculopathy;
·        back strain injury involving the lumbar segment with post traumatic stiffness without radiculopathy which a non-minor injury;
·        soft tissue injury to left shoulder;
·        mild post-traumatic stiffness on palmar flexion of the right wrist, and
·        the right knee showed no gross internal ligamentous or meniscal internal derangement but there was an insufficiency fracture of the femoral condyle.

CONSISTENCY

Apart from his account of the motor vehicle accident which the Panel did not accept, at the medical re-examination with Medical Assessor Dixon the claimant gave a history which was consistent in presentation on repeat testing of ranges of motion. He presented to the Medical Assessor in a straight forward manner without embellishment.
The Panel notes that the claimant gave a number of different explanations about how he was injured in the motor accident and also the speed at which the truck hit his van. After the accident he told Nepean Hospital and some doctors that the truck was travelling approximately 40 km/h. The claimant told Dr Porteous and Dr Smith that the truck was travelling 50 to 60 km/h when it hit his van.
The claimant’s description of the accident is at odds with the other truck driver who said that he had stopped and that the truck rolled forward when he fell asleep.
The claimant’s account of the accident is also inconsistent with the photographs of the vehicles contained in the engineer’s report of Michael Griffiths which shows a slight dent in both the van and the truck.
The Panel does not accept the claimant’s account of how the motor vehicle accident occurred. It prefers the version of the other truck driver who said that his vehicle had stopped but simply rolled forward into the claimant’s van.

PANEL DELIBERATIONS

The Panel notes the motor accident report dated 26 October 2021 by Michael Griffiths. The panel notes that the claimant repeatedly stated to the hospital and numerous doctors that his car was hit from behind by the other drivers truck travelling in his estimation 40 km/h. The panel has had regard to the report of Michael Griffiths. In that report the truck driver of the other vehicle stated that he had come to a stop and that his truck had simply rolled forward because he fell asleep whilst stationary. The claimant notes this in his personal injury application form.
The claimant’s solicitors have not made any written submissions to this review panel. There is no expert report other than that of Michael Griffiths about the causes or details of the motor accident. Other than the claimant’s version of the accident, there is no other evidence or expert report dealing with the causes or description of the accident. Absent other evidence the Panel accepts the report and the conclusions made by Michael Griffiths. The report also contains photographs and an assessment from Mr Griffiths that the collision was a low speed low impact collision based upon all the material he had collated in his report. The Panel also notes the photographs of the two vehicles involved which show a slight dent in the rear bumper of the claimant’s car and the metal bull bar on the front of the other driver’s truck. The claimant and his solicitors have had the opportunity to provide written submissions and/or a report as to what they say happened or caused the motor accident. In this case there was no expert report tendered from the claimant nor was there any submissions from the claimant’s solicitor as to which version of the causes for details of the accident should be preferred by the Panel
Having reviewed all of the statements made by the claimant to the hospital and numerous doctors and having reviewed the report of Michael Griffiths and all of the statements photographs and other evidence contained within it the Panel has reached the view that it prefers the other truck drivers version of the accident which was that his truck simply rolled forward at low speed into the back of the claimant’s VW van. Based upon all the available material, the Panel finds that the claimant and the other truck driver were involved in a low speed rear end collision.
The Panel now briefly summarises findings and reasoning for each of the injuries referred to it for review.

CONCLUSIONS

Diagnosis and Causation

Cervical spine injury

Based upon the medical evidence and medical reports together with the re-examination by the Medical Assessors on the Panel, there is no evidence of cervical radiculopathy, using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
There is also no evidence of non-verifiable radicular complaint.
There is no muscle spasm, guarding or wasting.
There was some stiffness of his cervical spine with flexion and extension decreased by one third.
Considering the history and complaint, it is possible there was soft tissue injury to cervical spine. However clinically there is no evidence of nerve impingement, disc injuries or musculoskeletal injury. The claimant experienced whiplash injury to cervical spine with aggravation of C5/6 spondylosis with C5/6 disc bulge without dysmetria, spasm or radiculopathy.
Therefore, the Panel assessed the cervical spine injury as a soft tissue injury and thus a threshold injury.

Lumbar spine injury

Based upon the medical evidence and medical reports together with the re-examination by the Medical Assessor on the Panel, there is no evidence of lumbar radiculopathy. Using the criteria of radiculopathy listed in paragraph 6.138, Motor Accident Guidelines, version 8.2: there is no loss or asymmetry of reflexes, no positive nerve root tension signs, no muscle atrophy, no muscle weakness or reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution. There is also no evidence of non-verifiable radicular complaint.
Considering the history and complaint, it is possible there was soft tissue injury to lumbar spine.
Therefore, the Panel assessed the lumbar spine injury as a soft tissue injury and thus a threshold injury.

Left shoulder injury

Considering the circumstances of the accident, it may be possible that the claimant sustained some soft tissue injury to the shoulder. The claimant complained soon after the accident of pain in one or both shoulders. His complaints are documented in the hospital Emergency Department notes and transferral, GP notes and a number of other treating and expert doctors.
Furthermore, the physical findings of both shoulders are inconsistent, between the observations not in formal examination and the findings in formal examination, and between different examiners.
An ultrasound of the left shoulder shortly after the motor accident, only shows some tendinosis of supraspinatus, subdeltoid/subacromial bursitis but no labral or rotator cuff tear. There are also several MRI scans and X-rays for left shoulder which did not show any injuries to the claimant’s left shoulder other than the existence of the Bufords complex.
At the re-examination on 13 February 2023 Mr Clarke was closely examined and asked in detail about the mechanism of his injuries and when he first experinced pain in the left shoulder. Mr Clarke told Medical Assessor Dixon that at the time of the impact he felt pain immediately after the accident. He reported that he had his right foot on the brake and left arm extended holding the steering wheel.
When asked by Medical Assessor Assem, he said he felt immediate discomfort at the left side of his neck radiating down his left shoulder and arm. Mr Clarke told Medical Assessor Assem that he believed his right knee hit the dashboard and the injury to his left shoulder was from holding the steering wheel. In the previous medical assessment Medical Assessor Assem brought to Mr Clarke’s attention that a rear end collision would cause his body to move backwards rather than forwards. When advised of this Mr Clark restated to Medical Assessor Assem that his reported injuries occurred in the manner in which he described them.
On 2 December 2020, the claimant’s treating surgeon Dr Yeoh, reviewed the claimant’s
X-rays and MRI scan of the knee, ultrasound of the shoulder none of which revealed any abnormality.
The Panel notes that Mr Clarke was examined by his treating surgeon Dr Yeoh 21 July 2021. Dr Yeoh reported that the claimant was then six months post his arthroscopic labral repair. Dr Yeoh recorded that the claimant has a symmetric range of motion and he is getting stronger day by day. The claimant reported to Dr Yeoh that is very happy with how his shoulder is going.
The Panel have come to different conclusions from Dr Yeoh about the cause and degree of impairment of the claimant’s left shoulder injury. The Panel has come to a different conclusion for the reasons set out below.
In QBE Insurance (Australia) Ltd v Shah [2021] NSWSC 288 his Honour Justice Fagan considered the causal relationship between a motor vehicle accident and injury to both the left and right shoulder. His Honour stated as follows:
“[16] This report provides no orthopaedic or biomechanical explanation of how a ‘large full thickness tear of the supraspinatus’ tendon, or any tear of the infraspinatus, could have been caused to the first defendant’s left rotator cuff by the motor vehicle accident as described by him. Soft tissue injury to the neck is commonly described in damages claims by drivers and passengers of motor vehicles that sustain rear end collisions, including where a front end collision has ensued. The biomechanical causation of that type of injury self-evidently involves the body being heavily accelerated and then decelerated in the horizontal plane. The body is restrained by the upright back of the seat and by the seatbelt and it therefore moves forward suddenly then stops suddenly with the corresponding movement of the vehicle. It is well understood that this acceleration and deceleration of the body causes ‘whiplash’ to the neck because of the inertia of the head. In contrast to such cases of soft tissue injury to the neck, there is no obvious or self-explanatory means by which the rotator cuff tendons of either shoulder could be or would be torn by the first defendant’s involvement in the collision that he has described.
[17] In descriptions of the accident given by the first defendant on various occasions he has never claimed that he suffered any impact to his left shoulder or any force to his left arm that might have been transmitted to the shoulder. He has never suggested that either arm was braced in such a manner that force would have been imparted through the arms to cause a sudden load on either shoulder. Even if the first defendant’s arms had been braced in a stiff, straight-ahead fashion prior to the rear end impact, the force of that impact would have accelerated the vehicle forward and pressed the first defendant back into his seat. It would have reduced any bracing force of his arms upon his shoulders, not increased it. The subsequent collision with the car in front is described as having occurred immediately after the rear end impact, as would be expected. It has not been suggested by the first defendant that he rearranged himself to brace his arms prior to the second, front end impact. On the contrary, the first defendant describes having been thrown to his right side by the initial collision.”
The Panel notes that a variety of explanations were provided by Mr Clarke to various doctors about how he sustained injury to his left shoulder in a rear end collision.
The initial MRI reports of the left shoulder reports findings of mild to moderate grade tendinopathy of the supraspinatus with no evidence of a tear and an intact rotator cuff. A subsequent MRI report of the left shoulder reports findings of a Buforrds complex and a possible labral tear. The Panel is not satisfied that these MRI findings are conclusive evidence as to a causal relationship with the accident. Indeed, in their clinical experience both Medical Assessors have observed that such MRI findings are common in the asymptomatic middle aged population. In addition, the MRI did show a labral tear which is usually a post-traumatic finding. The Panel also notes the existence in the claimant’s left shoulder of the relatively rare Bufords complex which introduces some complexity into a diagnosis of the claimant’s injuries. The Panel notes that radiological imaging of a Bufords complex presentation can sometimes be confused with or misdiagnosed as a labral tear. The lack of a clear and consistent history of injury and differing MRI reports concerning the left shoulder capable of showing such a lesion raised doubts in the minds of the Panel regarding causation.
In the Panel’s opinion it may be possible that the claimant sustained some soft tissue injury to the left shoulder as a result of the subject motor accident. However the Panel was not satisfied that Mr Clarke’s current left shoulder complaints were causally related to the accident. In reaching this conclusion the Panel had regard to the following factors including: the Panel’s findings about the consistency of the claimant’s presentation and history of the accident; the prevalence of similar MRI findings in respect of the rotator cuff in the asymptomatic middle aged population, the analysis of the cause and description of the subject motor accident in the report of Michael Griffiths and the decision in Shah about the lack of orthopaedic or biomechanical explanation for such injury. Given the evidence referred to above the Panel’s opinion is that the labral tear injury to the left shoulder occurred sometime after the motor vehicle accident on 5 November 2020 and was not caused by the motor accident.
In reaching its conclusions about the causation of the claimant’s left shoulder injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel could not find any persuasive evidence enabling it to make a finding that the subject motor vehicle accident materially contributed to the claimant’s left shoulder labral tear injury or exacerbated any such injury beyond initially causing a soft tissue injury.

Right knee injury

Considering the circumstances of the accident, the history given by the claimant and the Emergency Department finding, the Panel assessed that the claimant sustained soft tissue injury to the right knee in subject motor vehicle accident. The claimant complained soon after the accident of pain in right knee. His complaints are documented in the hospital Emergency Department notes and transferral, GP notes and a number of other treating and expert doctors. The claimant gave various accounts of how the injury to his right knee occurred. He said that he had his right foot on the brake and that his right leg and knee were twisted upon the rear end collision. He also gave a different account to other doctors when said his right knee hit the dashboard of his vehicle when the collision occurred.
An X-ray to the right knee dated 5 November 2020 reported there was no fracture detected and that the knee joint alignment is preserved. There was a small suprapatellar effusion. On 9 November 2020 an MRI of the right knee concluded that there was no internal derangement of the right knee joint. However clinically, on examination the soft tissue injury has subsided. On examination the right knee showed no gross internal ligamentous or meniscal internal the arrangement but there was an insufficiency fracture of the femoral condyle.
On 2 December 2020 the claimant’s treating surgeon, Dr Yeoh reported that the right knee had completely recovered but the shoulder continues to give him pain.
On 2 December 2020, the claimant’s treating surgeon Dr Yeoh, reviewed the claimant’s
X-rays and MRI scan of the knee, ultrasound of the shoulder none of which revealed any abnormality.
The Panel notes the MRI scan on 22 July 2021 of the right knee. This scan showed a subchondral stress or insufficiency fracture of the medial femoral condyle. There is also noted and associated joint effusion that was not previously present. The Panel notes there was no previous X-rays or MRI scans of the right knee which showed this fracture and joint effusion. Given the appearance of the right knee and the presence of the joint effusion the Panel’s opinion is that this injury occurred sometime after the motor vehicle accident on 5 November 2020 and was not caused by the motor accident.
In reaching its conclusions about the causation of the claimant’s right knee injury the Panel has carefully considered and applied the definition of causation of injury under Part 6 of the Guidelines and also the court decisions referred to earlier in these reasons. The Panel could not find any persuasive evidence enabling it to make a finding that the subject motor vehicle accident materially contributed to the claimant’s right knee injury or exacerbated any such injury.
As a result of his findings the Panel revokes the certificate of Medical Assessor Assem dated 1 August 2022 and issues a replacement certificate in accordance with these reasons.

[2023] NSWPICMP 177

2 May 2023