What is the trauma in Post-Traumatic Stress Disorder?
The New South Wales Court of Appeal recently found that even where symptoms of Post-Traumatic Stress Disorder (PTSD) are first experienced after a motor vehicle accident, the diagnosis and symptoms might not be causally related to the motor vehicle accident. If a significant or multiple pre-accident traumas were suffered by a person, and the PTSD symptoms include nightmares and flashbacks of those traumas, the severity of those traumas – including whether the subject motor vehicle accident was minor – can be considered.
In this article, we examine the Court’s decision in Jarvis v Allianz Australia Insurance Limited [2022] NSWCA 232 and comment on its implications for compulsory third-party (CTP) insurers.
Facts
Maxwell Jarvis (Claimant) was involved in a minor motor vehicle accident on 4 May 2011 on the Grafton Bridge (subject accident), resulting in the Claimant being hospitalised for minor physical injuries which resolved quickly. The Claimant subsequently developed psychological symptoms and, while the Insurer admitted liability for the accident, there was a dispute about whether the Claimant’s psychological symptoms were causally related to the subject accident and gave rise to a permanent impairment greater than 10% (dispute).
The dispute was referred to the Medical Assessment Service, as it then was, and a Certificate was issued that the Claimant suffered ‘psychological/psychiatric – Adjustment disorder with anxiety; PTSD; Major Depressive Disorder’, which gave rise to a permanent impairment greater than 10%. In short, the reasons were that the Claimant, having been involved in at least five serious accident, did not suffer any psychological or psychiatric condition prior to the subject accident but had intrusive thoughts and nightmares post-accident, which were about the accidents – not just the subject accident – that had occurred throughout his life.
The diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) includes that a traumatic event has occurred (Criterion A), intrusive symptoms are associated with that event, beginning after the traumatic event (Criterion B), and persistent avoidance of stimuli associated with the traumatic event, begging after the event (Criterion C). In relation to Criterion A, the Medical Assessor stated that the Claimant ‘was involved in a relatively minor motor accident, but one in which he feared that significant injury might have occurred. His previous multiple exposures to motor accidents may have led to vulnerability to overacting in the circumstance. On balance, I consider that Criterion A has been met.’
The dispute was referred to a Medical Review Panel (Panel), which found the subject accident to be minor and one which did not satisfy the definition at Criterion A. Conversely, the Panel found the earlier incidents satisfied Criterion A and, although accepted the diagnosis of PTSD, stated that:
‘Having regard for the extent to which Mr Jarvis has been exposed to traumatic events, considering the nature of the subject motor accident and taking into account the multiple personal losses, the Panel formed the conclusion that the subject motor accident represented a less than negligible contributing factor to the causation of his current psychiatric presentation and was not causally related to the development of PTSD which appears to have resulted from other significant stressors in his life which pre-dated the subject accident.‘[1]
The Panel did not undertake an assessment of permanent impairment having found that the Claimant’s PTSD was not causally related to the subject accident.
First instance
The Claimant sought judicial review in the Supreme Court of NSW, which was dismissed.[2] McCallum JA referred to Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 and stated that ‘[t]he Panel was required to do no more than to form its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise’.[3]The Court found that the Review Panel did not need to undertake an assessment of permanent impairment given it had found the subject accident had not caused on contributed to the Claimant’s PTSD.[4]
The Claimant appealed the decision.
Court of Appeal
The Court of Appeal delivered judgment on 15 November 2022. Acting Justice Basten and Chief Justice Bell were in agreement, and Justice Brereton delivered a dissenting judgment.
The Claimant submitted, among other things, that the Panel failed to respond to the Claimant’s substantial argument that there was ‘temporal connection between the accident and the development of symptoms, and the lack of any pre-accident psychiatric symptoms’.[5]The Court of Appeal did not agree with this submission, with Acting Justice Basten stating that the Panel ‘treated as significant the fact that the post-accident symptoms, including dreams and flashbacks, related to incidents other than the minor accident in 2011’[6]and their conclusion referred to medical principles.[7] Importantly, the lack of sufficient causal connection was a factual finding not open to review.[8]
In the dissenting judgment, Justice Brereton stated that Panel had failed to appreciate, engage with or answer the logic of the chronology of the Claimant’s symptoms[9] and that ‘exposure to threatened serious injury suffices’ when contemplating Criterion A.[10]
The Court of Appeal confirmed that, where a causal connection is not established or found by an assessor or Panel, an assessment of permanent impairment need not occur.
Implications
CTP insurers should ensure that complete medical histories are obtained, particularly when assessing claims for PTSD in minor motor vehicle accidents, to determine whether the motor vehicle accident satisfies Criterion A of the DSM-5.
Even leaving prior traumas aside, this decision goes further to suggest that minor motor vehicle accidents might not be sufficient to satisfy Criterion A of the DSM-5 whatsoever.
Footnotes
[1] Jarvis v Allianz Australia Insurance Ltd [2022] NSWCA 232 at [40]
[2] Jarvis v Allianz Australia Insurance Ltd [2022] NSWSC 161
[3] Ibid at [32]
[4] Ibid at [51]
[5] n 1 at [45]
[6] n 1 at [58]
[7] n 1 at [59]
[8] n 1 at [62]
[9] n 1 at [28]
[10] n 1 at [26]