[2014] NSWCA 39
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
Kioa v West (1985) 159 CLR 550
[1985] HCA 81
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
[1999] HCA 21
Minister for Immigration v SZGUR (2011) 241 CLR 594
Source
Original judgment source is linked above.
Catchwords
(2003) 77 ALJR 1088
Frost v Kourouche (2014) 86 NSWLR 214[2014] NSWCA 39
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287
Kioa v West (1985) 159 CLR 550[1985] HCA 81
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611[1999] HCA 21
Minister for Immigration v SZGUR (2011) 241 CLR 594[2011] HCA 1
Moses v ParkerEx parte Moses [1896] AC 245 (PC)
R v Electricity CommissionersEx parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171
Re Minister for Immigration and Multicultural AffairsEx parte Applicant S154/2002 [2003] HCA 6077 ALJR 1909
Re Minister for Immigration and Multicultural and Indigenous AffairsEx parte Lam (2003) 214 CLR 1[2003] HCA 6
Sue v Hill (1999) 199 CLR 462
[1999] HCA 30
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
[2006] HCA 63
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
(2007) 81 ALJR 1190
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480
Judgment (23 paragraphs)
[1]
McTegg, John O'Neill, Ian Weschler as a review panel, constituted under s 7.26 of the Motor Accidents Injuries Act 2017 (NSW) (Third Respondent)
Representation: Counsel:
C Allan (Appellant)
C Barry KC / J Gumbert (First Respondent)
Submitting appearances (Second and Third Respondents)
[2]
Solicitors:
Moray & Agnew Lawyers (Appellant)
Allworth Lawyers (First Respondent)
Crown Solicitor's Office (Second and Third Respondents)
File Number(s): 2023/348161
Decision under appeal Court or tribunal: Supreme Court
Jurisdiction: Common Law
Citation: Amos v AAI Limited t/as GIO [2023] NSWSC 1193
Date of Decision: 6 October 2023
Before: Rothman J
File Number(s): 2023/42671
[3]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[4]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 26 July 2018, the first respondent, Jesse Amos (the claimant) sustained injuries in a motor vehicle accident (the accident). The appellant, his insurer, AAI Limited trading as GIO (the insurer) admitted liability. About a month after the accident, on about 24 August 2018, the claimant fell at home (the fall) and fractured his eye socket (the orbital fracture). A dispute arose between the claimant and the insurer as to whether the fall (and therefore the orbital fracture) was caused by injuries sustained in the accident. The claimant contended that they were because he fell as a result of dizziness which had been caused by a head injury sustained in the accident. The insurer submitted that the fall was unrelated to the accident and noted the claimant's pre-accident history of dizziness.
The dispute was referred to a medical assessor in accordance with the Motor Accident Injuries Act 2017 (NSW) (the Act) to determine the percentage whole body impairment (%WPI) suffered by the claimant as a result of the accident. If the claimant's %WPI exceeded 10%, he would be entitled to damages for non-economic loss from the insurer. An assessment was conducted by Dr Steiner who assumed that the fall was caused by the accident.
The insurer applied for a review of Dr Steiner's decision and a review was conducted by the third respondent, a review panel made under the Act (the Review Panel). The Review Panel determined that there were three possible causes of the fall: a slip or trip; dizziness; or post-traumatic paroxysmal positional vertigo (PPV). Only PPV could have been caused by the accident. After conducting an examination of the claimant and reviewing the claimant's medical treatment records, the certificates of medical assessors, medicolegal reports, a statement from the claimant and submissions of the claimant and insurer, the Review Panel determined that the fall was not caused by the accident. The claimant sought judicial review of the Review Panel's decision.
On 6 October 2023, Rothman J (the primary judge) made orders quashing the Review Panel's decision and remitting the insurer's application for review of the medical assessment of the claimant to the second respondent, the President of the Personal Injury Commission of NSW. The basis of the primary judge's decision was that the Review Panel had denied procedural fairness to the claimant. The primary judge rejected the claimant's second challenge to the decision of the Review Panel that its reasons were not sufficient.
The insurer appealed against the primary judge's decision on the basis that the primary judge erred in finding that the Review Panel had denied the claimant procedural fairness. It submitted:
(1) the primary judge erred in finding that the Review Panel had to put the claimant on notice of the specific symptoms of PPV (grounds 1-5); and
(2) the primary judge erred in placing any weight on Dr Steiner's assumption that the fall was causally related to the accident (ground 6).
On appeal the claimant:
(1) contended that he was denied procedural fairness because he ought to have been (and was not) alerted by the Review Panel to the apparent inconsistency between his descriptions of vertigo and the symptoms of PPV; and
(2) filed a notice of contention in which he contended that, contrary to the primary judge's findings, the reasons of the Review Panel were inadequate.
The Court held (Adamson JA, Kirk JA and Basten AJA agreeing), allowing the appeal:
Procedural fairness
(1) Procedural fairness depends, in part, on context. In the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing: Adamson JA at [53], Kirk JA at [1], Basten AJA at [74] and [76].
(2) In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties' attention in order that they can provide material and make submissions about it: Adamson JA at [55], Kirk JA at [1], Basten AJA at [74] and [91]-[92].
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47]; Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] applied.
(3) The Review Panel was not obliged to put to the claimant its thought processes or to alert the claimant to the consequences of describing his symptoms in a particular way: Adamson JA at [63] and [67], Kirk JA at [1], Basten AJA at [74].
(4) In these circumstances, the Review Panel did not deny procedural fairness to the claimant. It was entitled to apply its own medical expertise to make findings on the basis of answers given by the claimant to its questions and to find that the fall was not causally related to the accident because the fall was not caused by PPV: Adamson JA at [61] and [68], Kirk JA at [1], Basten AJA at [74].
Notice of contention - sufficiency of the Review Panel's reasons
(1) There was no error in the primary judge's conclusion that the reasons of the Review Panel were sufficient: Adamson JA at [71], Kirk JA at [1], Basten AJA at [74].
[5]
JUDGMENT
KIRK JA: I agree with Adamson JA and agree, too, with the additional observations of Basten AJA.
ADAMSON JA: The appellant, AAI Limited trading as GIO (the insurer), appeals against the orders made by Rothman J (the primary judge) on 6 October 2023 quashing a decision of the third respondent (the Review Panel) and remitting the insurer's application for review of the medical assessment of the first respondent, Jesse Amos (the claimant), to the President of the Personal Injury Commission of NSW (PIC) (the President), who is the second respondent. The basis of the primary judge's decision was that the Review Panel had denied procedural fairness to the claimant. The primary judge rejected the claimant's second challenge to the decision of the Review Panel that its reasons were not sufficient.
The primary judge was exercising the Court's jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) to grant relief in the nature of prerogative relief from errors of law on the face of the record. The insurer accepts that the amount in issue exceeds the threshold in s 101(2)(r) of the Supreme Court Act and is therefore entitled to appeal as of right from the orders of the primary judge.
On appeal, Ms Allan, who appeared on behalf of the insurer, submitted that there was, relevantly, no denial of procedural fairness. The claimant filed a notice of contention in which he contended that, contrary to the primary judge's findings, the reasons of the Review Panel were inadequate. The insurer contested this proposition. The Review Panel and the President have each filed submitting appearances.
All references to legislation in these reasons are, unless otherwise indicated, references to the Motor Accident Injuries Act 2017 (NSW) (the Act).
On 26 July 2018, the claimant, a passenger, sustained injuries, including a fractured nose and various musculoligamentous injuries, in a motor vehicle accident (the accident). The insurer admitted liability. About a month after the accident, on about 24 August 2018 (the evidence does not establish the precise date), the claimant fell at home (the fall) and fractured his eye socket (the orbital fracture). A dispute arose between the claimant and the insurer as to whether the fall (and therefore the orbital fracture) was caused by injuries sustained in the accident. The claimant contended that they were because he fell as a result of dizziness which had been caused by a head injury sustained in the accident. The insurer submitted that the fall was unrelated to the accident and noted the claimant's pre-accident history of dizziness.
[6]
The legislative regime
Division 7.5 makes provision for the medical assessment of people injured in motor vehicle accidents. As referred to above, a medical dispute about a claim may be referred to a medical assessor for assessment: s 7.20. Clause 2, Sch 2 to the Act declares the degree of permanent impairment that has resulted from an injury caused by a motor vehicle accident to be a "medical assessment matter" for the purposes of Part 7.
Section 7.20(4) provides that a claimant and an insurer must provide to the medical assessor "such information as the assessor may reasonably require for the purposes of the medical assessment."
The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines) and is to be assessed as a percentage: s 7.21. The Guidelines were issued pursuant to Division 10.2 of the Act, by the State Insurance Regulatory Authority, which administers the compulsory third party insurance and compensation scheme under the Act.
Part 6 of the Guidelines makes provision for the assessment of permanent impairment and is based on the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition (the AMA4 Guides). Clauses 6.5 to 6.7 concern causation.
Clause 6.6 provides:
"Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.'"
(Emphasis in original.)
Clause 6.7 provides:
"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."
[7]
The process undertaken by the Review Panel
Following its first teleconference, the Review Panel decided that an examination of the claimant was required and, further, that the expertise of a neurologist was required. Accordingly, the Review Panel was reconstituted to include Dr John O'Neill, a neurologist, as one of the two medical assessors. The other medical assessor was Dr Ian Wechsler, an ophthalmologist. The Review Panel decided that Dr O'Neill would examine the claimant as part of its review.
[8]
The material before the Review Panel
The Review Panel had access to the following for the purposes of its review:
1. records of the claimant's medical treatment, including the ambulance report following the accident, hospital clinical records pertaining to pre-accident, accident and post-accident events and the medical records of the claimant's general practitioner, Dr Peter Voutos (the clinical records);
2. certificates of other medical assessors;
3. medicolegal reports;
4. the claimant's statement dated 14 January 2022; and
5. the claimant's and the insurer's submissions.
In the evidence which was before the primary judge, the parties did not tender all the material which was before the Review Panel, but only the material which they considered to be relevant to the proceedings.
[9]
The ambulance report
The ambulance report recorded that, on 26 July 2018, when ambulance officers attended the scene of the accident, the claimant said he had hit his head on the windshield. It also recorded:
"PT [patient] DENIES LOC [loss of consciousness]. PT RECOLLECTS ALL EVENTS."
The claimant's Glasgow Coma Score (a measure of the extent of impaired consciousness) was recorded as 15 (fully responsive) on two occasions when assessed by ambulance officers.
[10]
Bankstown Hospital
The Bankstown Hospital notes for the claimant's admission on 26 July 2018 (following the accident) do not record any complaint of headaches or dizziness. However, the notes record: "pt doesnt remember the event, the first thing to remember when he arrive to the hospital".
The claimant attended Bankstown Hospital again on 30 August 2018, after the fall. The referral letter dated 30 August 2018 from Bankstown Hospital to Dr Voutos recorded that the claimant gave the following history of the fall:
"1/52 [One week] ago he was feeding his cats when fell [forward] and hit his face on the ground."
[11]
Royal Prince Alfred Hospital
Later that same day, 30 August 2018, the claimant presented at Royal Prince Alfred Hospital (RPA). The RPA records note that the claimant gave the following history of presenting complaint:
"History of Presenting Complaint:
32 yrs old male with known blowout fracture of the right orbit
4 weeks ago had an MVA, passenger on the car
had nasal bone fracture
ongoing lethargy and pain all over his body since then
states tingling and mild numbness on nose and right cheek
on Friday was walking out to feed the cats when fell down and sustained injury around right eye
unsure what happened, lost consciousness and next thing he remember[s] [is] having his parents around him
went to see GP on Tuesday who organised facial bone CT which showed
-blowout fracture of the inferior and infer-medial aspect of the right orbit with herniation of orbital content into the roof of the right antrum and into the e[th]moid sinus
-Orbital emphysema involving the right orbit and surgical emphysema anteriorly in the soft tissues of the cheek
denies any fevers at home
has had cold and runny nose for last few weeks
Nil dysuria, change in colour or smell
Bowel opening normally
Past medical History :
MVA 4 weeks ago
-Nasal bone fracture"
(Emphasis added.)
Later on 30 August 2018, at 6.31pm, the RPA records noted the following history:
"Hx
- MVA 4 weeks ago
- reports subsequent facial numbness over nose, right cheek and superior gingiva
- subsequent dizziness
- pt. reports fall with LOC [loss of consciousness] whilst feeding his cat on Thursday (one week ago)
- GP sent for CT brain and facial bones showing sizeable right orbital floor and medial wall fracture with herniation inferior rectus
- pt. reports no diplopia in neutral gaze and on most eye movement, but variable diplopia on end-gaze (non-specific directions)
- also reports some intermittent photopsias R eye since fall (one or two per day)
- denies any associated floaters or curtains
- VA [visual acuity] otherwise unaffected"
(Emphasis added.)
[12]
Dr Voutos' clinical records
Dr Voutos' clinical notes recorded the following, as noted by the Review Panel:
1. on 9 August 2016, the claimant attended Dr Voutos and reported experiencing vertigo symptoms for two days, for which Dr Voutos prescribed Serc;
2. Dr Voutos also prescribed Serc on 21 August 2017 and 20 December 2017, although the clinical notes do not record vertigo on those dates;
3. on the morning of 16 May 2018, Dr Voutos made a house call to the claimant who was complaining of "severe vertigo" and for which he was given an intra-muscular injection (IMI) of 12mg of Stemetil. Dr Voutos also prescribed medication which included Serc and gave him a medical certificate certifying that he was unfit to attend court that day because he had "severe vertigo";
4. Dr Voutos' clinical note of the claimant's first consultation after the accident, 31 July 2018, recorded no mention of headaches or vertigo;
5. on 7 August 2018, Dr Voutos noted "poor sleep headaches entire body in pain" and "dizzy". Serc was prescribed for the latter;
6. on 28 August 2018, Dr Voutos noted: "Right SIDE FACE TINGLING HEADACHES DIZZY";
7. on 30 August 2018, Dr Voutos noted: "add notes from 28/8 that he fell last [F]riday at the back of the yard onto an [sic] and hit Right side face onto object and now periorbital bruising called pt to go to hospital stat [straight away] due to orbital fracture".
[13]
Report of Dr Evan Dryson, occupational physician, dated 21 October 2019
The medicolegal reports relied on by the claimant included a report of Dr Dryson, to whom the claimant was referred by his solicitors. Dr Dryson said of present relevance:
"CURRENT SYMPTOMS
Mr Amos is reporting the following symptoms currently, in respect of the injuries identified by yourself:
• Head
Mr Amos is reporting headaches. They are present every day. He states that he did not have headaches prior to the accident. He locates the headaches to 'everywhere' in the head. He experiences dizziness, which is described by him as the 'world is spinning.' He has been provided with medication, Serc, which has reduced the vertigo, but not completely abated. He has not been referred for specialist investigation or management of his vertigo."
(Emphasis added.)
In the list of "diagnoses", Dr Dryson included "Vertigo - not yet investigated".
Dr Dryson noted:
"Mr Amos is reporting vertigo from the accident, suggesting inner ear disruption. Such vertigo clearly renders him unable to undertake any activities requiring balance or working at heights. It is my opinion that Mr Amos requires referral to an ENT [ear nose and throat] specialist for further evaluation of his vertigo."
(Emphasis added.)
When asked to opine about the connection between the injuries suffered in the fall and the motor vehicle accident, Dr Dryson said, in a passage extracted in the Review Panel's reasons:
"… [the claimant] fractured his right orbit when he fell secondary to a dizzy spell. Since the dizziness is a consequence of the motor vehicle accident of 26 July 2018, the fractured right orbit[al] would therefore be considered to be a flow on effect of the accident."
[14]
The claimant's statement
In his statement of 14 January 2022, the claimant said the fall was caused by "loss of balance" which he attributed to the accident. He said of present relevance:
"12. At the time when the accident happened, I visited my GP because of the soreness I had in my neck, pain lower back [sic], stiff shoulders, and also pain on my chest. … I suffer from headaches and when I got up, I felt dizziness from I found out [sic] was terrible vertigo and concussion.
13. About four weeks later after the accident, I fell because of loss of balance, hitting my side face in the edge of a wall when going outside in the backyard of my home. I had urgent surgery on my right eye orbit and cheekbones ending up with a metal plate because of this fall due to the car accident …
14. I live with headaches … and also have bouts of dizziness. …"
(Emphasis added.)
[15]
Certificate of Dr Joseph Scoppa, ear nose and throat specialist
The certificates of other medical assessors included that of Dr Scoppa, who assessed %WPI to the claimant's nose and air passage as well as vertigo, dizziness and headaches. Dr Scoppa examined the claimant on 19 December 2021 and issued a certificate on 28 January 2022. In the portion of his reasons, entitled "Clinical Examination", "General presentation", he said:
"Clinical examination showed normal eardrums and ear canals. The fistula test was normal on both sides. There was no gaze or spontaneous nystagmus. Hallpike Testing for benign positional vertigo (BPV) was normal bilaterally."
(Emphasis added.)
[16]
The claimant's submissions
The claimant's solicitors submitted to various medical assessors and the Review Panel that the fall was caused by dizziness which was, in turn, caused by a head injury sustained in the accident.
They submitted, as summarised in the Review Panel's reasons:
"102. The claimant notes that Medical Assessor Scoppa was unable to find a vestibular disease due to the 'lack of objective testing of vestibular functioning' at the time of the fall. The claimant argues that he did not have vestibular disease, but he suffered a fall as a result of experiencing dizziness after suffering traumatic injuries to the head and face and a whiplash injury.
103. The claimant submits the opinion of Medical Assessor Scoppa is limited by his expertise as an ear, nose and throat specialist and he is not qualified to comment on whether the concussion, the whiplash, the vision changes and the confusion experienced by the claimant at the time of the fall was causally related to the accident."
[17]
The insurer's submissions
Under cover of a letter dated 18 November 2020, the insurer's solicitors supplied further material to PIC, including the clinical records of Dr Voutos, Bankstown Hospital and RPA (some of which have been referred to above). In respect of the orbital fracture, the insurer submitted:
"Eye Injuries
49. The insurer submits that the only eye injuries suffered by the claimant, appear to have been a result of the subsequent fall in August 2018. The claimant was treated in respect of those injuries at Royal Prince Alfred Hospital.
50. The claimant appears to assert that these further injuries are as a consequence of the subject accident, in that he continued to suffer vertigo, which led to the subsequent fall. As noted above, the claimant had a pre-accident history of vertigo symptoms.
51. It is the insurer's position that the subsequent eye injuries are not causally related to the subject accident.
52. The insurer submits that before the assessment with Assessor Delaney can proceed, there ought to firstly be an assessment from a medical assessor appropriately qualified, to assess the claimant's alleged head injury. This assessment will have direct b[e]aring [on] questions of causation of those alleged eye injuries."
(Emphasis in original.)
The insurer also relied on other material in support of a submission that the claimant was not credible.
[18]
The Review Panel's reasons
The following reasons of the Review Panel indicate that, during the examination of the complainant which Dr O'Neill conducted, he questioned the claimant about the entries in Dr Voutos' notes concerning pre-accident treatment for "vertigo":
"108. Mr Amos saw Dr Voutos for 'vertigo' on 9 August 2016. Mr Amos currently has no recollection of this. Mr Amos had no recollection of recurrent vertigo around that time.
109. Dr Voutos apparently made a house call for 'severe vertigo' on 16 May 2018. Stemetil was prescribed. Mr Amos currently had no recollection of this nor for the duration of symptoms. He was also unable to say whether he continued to take Stemetil."
The reasons indicate that, when specifically questioned about these incidents the claimant told Dr O'Neill that he was unable to recall them.
The history which the claimant gave of the fall (implicitly to Dr O'Neill) was recorded in the Review Panel's reasons as follows:
"The fall on or about 24 August 2018
129. [The claimant] said he was walking past the back door of his [parents'] house when he heard the two cats meowing and he thought he had better feed them. He obtained cat food from the kitchen. He walked out the back door and started to descend two to three steps into the yard. He said he 'remembers feeling dizzy' and his next awareness was of being on the ground. He ascertained that in the fall he must have hit the right side of his face on stepped ornamental bricks below a window near the back steps.
…
Continuing symptoms
…
135. He said he took four Somac tablets per day because of reflux. Other medications were used intermittently, Serc and Maxolon. He used these for dizziness or vertigo.
136. Mr Amos differentiated dizziness and vertigo. By dizziness he meant a sensation of light-headedness. He said this was frequent and could occur a few times per week. He could not identify any aggravating factor. When this occurred, he would take both Serc and Maxolon. He said the symptom would disappear within about half-an-hour of taking the medication.
137. By vertigo Mr Amos meant an internal feeling (in the head) like the room was spinning. There was no actual spinning of the environment. This would be much less frequent than the dizziness, but he thought it might occur every couple of weeks. For this he would take Serc and Maxolon and symptoms would settle within about half-an-hour.
138. When either the dizziness or vertigo was more intense, he said he would prefer to sit or lie down.
139. He had never fallen as a consequence of these symptoms.
…
Examination
141. Mr Amos was a poor historian and appeared to be quite depressed.
…
143. … There was no dizziness or vertigo when [the claimant] was asked to move up and down on the couch for the purpose of examination."
(Emphasis added.)
[19]
Challenge to the primary judge's finding of procedural unfairness (grounds 1-6)
The claimant argued, both in the Court below and in this Court, that there was an apparent inconsistency between his descriptions of vertigo in [137] of the Review Panel's reasons and the symptoms of PPV, as described by the Review Panel in [150], to which the claimant ought to have been alerted. He submitted that the Review Panel was obliged, when carrying out the medical assessment of the claimant, to identify its thought processes as to a potential diagnosis which would establish liability (PPV); identify to the claimant the symptoms which would support that diagnosis; and ask the claimant questions to ascertain whether he suffered those symptoms. The claimant submitted that the failure on the part of the Review Panel, and in particular Dr O'Neill, to do each of these matters constituted a denial of procedural fairness.
The primary judge addressed the requirements of procedural fairness which the Review Panel owed to the claimant in the context of a witness giving evidence in a court and tribunal and discussed the rule in Browne v Dunn (1983) 6 R 67 (HL) (which requires adverse material or alleged inconsistencies to be put to a witness in order that the witness may respond) in this context. His Honour concluded that a similar approach ought to have been taken by the Review Panel when it asked questions of the claimant, as is evident from the following extract from the primary judge's reasons:
"123 The similarity in approach and the issues raised in these proceedings are obvious for the recitation of the grounds and the arguments in support. The Review Panel concluded that the plaintiff did not suffer the fall as a result of the Accident for two fundamental reasons: first, symptoms of 'dizziness' and/or 'vertigo' were suffered prior to the Accident; and, secondly, the symptoms described by the plaintiff did not fit the description of symptoms that would give rise to a diagnosis of the kind that would allow causation to be proved.
124 The difficulty in each case is that the symptoms of 'dizziness' suffered prior to the Accident may or may not have been the same symptoms that were suffered after the Accident. The Review Panel did not ask questions designed to draw out that issue, or to give notice to the plaintiff of the issue with which the plaintiff was required to deal."
(Emphasis added.)
[20]
The notice of contention
The second challenge made by the claimant to the certificate of the Review Panel was that its reasons were inadequate. This challenge was rejected by the primary judge.
Mr Barry KC, who appeared with Ms Gumbert for the claimant, submitted that there was an inconsistency between [137] and [150] of the Review Panel's reasons which ought to have been explained and that, absent such an explanation, the reasons were inadequate. For the reasons given above, I am not persuaded that there was any such inconsistency. The Review Panel set out what the claimant meant by the terms dizziness and vertigo and how PPV presented itself before concluding that the claimant's description of what preceded his fall did not correspond with PPV.
I have read and considered the reasons of the primary judge for rejecting this second ground of challenge. I am not persuaded that there was any error in the primary judge's conclusion that the reasons of the Review Panel were sufficient.
[21]
Costs
The parties accepted that costs ought follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
[22]
Proposed orders
For the reasons given above, I propose the following orders:
1. Allow the appeal.
2. Set aside the orders made by Rothman J on 6 October 2023 and in lieu thereof, make the following orders:
1. Dismiss the amended summons.
2. Order the plaintiff to pay the first defendant's costs.
1. Order the first respondent to pay the appellant's costs of the appeal.
BASTEN AJA: The circumstances giving rise to the present appeal have been set out by Adamson JA, with whose reasons and proposed orders I agree. The following observations are not intended to qualify any aspect of that reasoning.
There is a presumption that the principle of procedural fairness applies to all statutory decision-making, whether judicial or administrative. [1] That was not always the case: in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd, [2] Atkin LJ stated that certiorari and prohibition only lay where the respondent was under a duty to act judicially. While that is no longer the case, the concept of acting judicially was not limited to curial proceedings. The nature of the function performed by the decision-maker remains of central importance in determining the content of procedural fairness in a particular matter. In some circumstances, the content becomes highly attenuated. For example, in the present case, there was no obligation on the review panel to conduct a hearing attended by the parties to the dispute. On the other hand, the principle of procedural fairness has been expanded so that it may be described as a breach of procedural fairness simply to fail to carry out the statutory task assigned to the particular body. [3]
The content of procedural fairness will to a significant extent be determined by the statutory scheme under which a decision-maker operates. In a case of disagreement as to the content, it is necessary to identify the governing statutory scheme. In the present case, the scheme for the determination of medical disputes is constituted by the Personal Injury Commission Act 2020 (NSW) in combination with relevant "enabling legislation" which, in relation to degrees of permanent impairment caused by injuries received in a motor vehicle accident, includes the Motor Accident Injuries Act 2017 (NSW). [4] A dispute as to the degree of permanent impairment is a medical dispute to be assessed by a medical assessor. [5]
[23]
Endnotes
Non-statutory decision-making may be put to one side for present purposes.
[1924] 1 KB 171 at 205.
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [26] (Gummow and Callinan JJ).
Personal Injury Commission Act, s 5(1).
Motor Accident Injuries Act, s 4.12.
Personal Injury Commission Act, s 33(1)(b).
Motor Accident Injuries Act, s 7.20(2).
Motor Accident Injuries Act, s 7.26(2).
Motor Accident Injuries Act, s 7.26(6).
Motor Accident Injuries Act, s 7.26(5A).
Motor Accident Injuries Act, s 7.26(6A).
Rule 127(1)(b) and (2).
Rule 5(7).
Amos v AAI Limited t/as GIO [2023] NSWSC 1193 at [108].
[1896] AC 245 (PC).
(1925) 35 CLR 422 at 438 (Isaacs J).
Sue v Hill (1999) 199 CLR 462; [1999] HCA 30 at [42] (Gleeson CJ, Gummow and Hayne JJ) (footnote omitted).
(1999) 197 CLR 611; [1999] HCA 21 at [49].
Known as the rule in Browne v Dunn (1893) 6 R 67.
Amos v AAI at [119]-[120], [123].
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [55]-[57] (Gummow and Heydon JJ, Gleeson CJ agreeing).
[2021] NSWCA 287.
Keen at [35]-[37].
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (footnote omitted).
Amos v AAI at [138].
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Decision last updated: 26 March 2024
Parties
Applicant/Plaintiff:
AAI Limited trading as GIO
Respondent/Defendant:
Amos
Legislation Cited (8)
Motor Accidents Injuries Act 2017(NSW)
However, the Personal Injury Commission Rules 2021(NSW)
If the fall was a consequence of injuries which the claimant sustained in the accident, the permanent impairment resulting from the orbital fracture would be taken into account in the assessment of the percentage whole person impairment (%WPI) arising from the accident. If the fall was unrelated, no allowance could properly be made for the orbital fracture in the assessment of %WPI.
Section 4.11 provides that damages for non-economic loss may only be awarded in respect of a motor accident injury if the %WPI as a result of an injury caused by a motor vehicle accident is greater than 10%.
Section 4.12 requires a dispute about %WPI to be determined by a medical assessor. The dispute between the claimant and the insurer was referred, in accordance with s 7.20(1), to the President who arranged for Dr Steiner, a medical assessor, to assess the degree of the claimant's %WPI under s 7.21.
In Dr Steiner's reasons for his certificate, he said:
"9 History of symptoms and treatment following the motor vehicle accident
Two to three weeks later at home he apparently fell. He has no memory of this but remembers being woken by his parents. He had lost consciousness and he was taken to hospital once again he thinks it was Bankstown Hospital. He was x-rayed and told that he had a fracture of the right orbit. He was taken urgently to Royal Prince Alfred Hospital where he had surgical repair of this. Apparently this injury has been accepted as part of the motor vehicle accident as following the accident he was dizzy."
(Emphasis added.)
On the basis of the assumption that the orbital fracture was a consequence of the accident, Dr Steiner issued a certificate dated 31 March 2021 pursuant to s 7.23 that the claimant's %WPI referable to the orbital fracture was 29% and would thus exceed the 10% threshold and entitle the claimant to damages for non-economic loss. But for the orbital fracture, the threshold would not have been exceeded. It is not necessary to recite the other medical assessment certificates which had this effect.
The insurer contested the assumption made by Dr Steiner that the fall (and therefore the orbital fracture) was caused by the accident and applied for a review of Dr Steiner's medical assessment by a review panel. On 14 June 2022, a delegate of the President referred the matter to the Review Panel on the basis that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect (namely that causation had been assumed rather than determined).
On 15 November 2022, the Review Panel found that the fall was not caused by the injuries sustained in the accident, revoked Dr Steiner's certificate and issued a new certificate which stated that the orbital fracture was not caused by the accident. The effect of the new certificate was that the claimant was not entitled to damages for non-economic loss.
It is implicit in the Review Panel's reasons that there were potentially three explanations for the fall: first, that it was accidental (occasioned by a slip or trip or otherwise); second, that it was caused by a vestibular disorder which manifested itself in dizziness; and third, that it was the consequent of post-traumatic paroxysmal positional vertigo (PPV). Only the third explanation could have been caused by the accident.
The Review Panel excluded PPV as a cause because the symptoms described by the claimant did not correlate with the symptoms of PPV and also because the claimant had a history of dizziness and vertigo, most recently manifested on 16 May 2018 (more than a month prior to the accident), when his general practitioner made a house call to treat the claimant's "severe vertigo". The process undertaken by the Review Panel will be described in more detail below.
In order to address the challenge to the primary judge's orders, it is necessary to consider the role of the Review Panel in the context of the legislative regime.
When the assessment is complete, the medical assessor is to issue a certificate as to the matters referred for assessment: s 7.23(1). Section 7.23(7) provides that the certificate is to set out the reasons for the medical assessor's finding as to any matter certified in the certificate. The effect of s 7.23(7) is that the reasons form part of the record for the purposes of s 69 of the Supreme Court Act.
A claimant or an insurer may apply to the President to refer a medical assessment to a review panel (s 7.26(1)) but only on the ground that the assessment was incorrect in a material respect (s 7.26(2)). The review panel is to be constituted by three persons chosen by the President, being two medical assessors and a member of PIC who is assigned to the Motor Accidents Division: s 7.26(5A). Section 7.23 applies to any new certificate issued under s 7.26: s 7.26(9).
The Review Panel continued:
"Conclusion following assessment by Medical Assessor O'Neill
144. If Mr Amos has a vestibular disorder, then it began prior to the accident on 26 July 2018. Clinical assessments of vestibular function by both Medical Assessor Scoppa and Medical Assessor O'Neill were normal. It is unfortunate that Dr Voutos never referred Mr Amos for vestibular function testing.
145. It is not clear when Mr Amos was first given medication for vestibular symptoms. It would appear he was given Stemetil on 16 May 2018. Dr Voutos reported complaints of non-specific dizziness on 9 August 2016. He prescribed Serc on 21 August 2017 and again on 20 December 2017 and on 16 May 2018, some 10 weeks pre-accident, he made a house call on Mr Amos, diagnosed "severe vertigo" and issued a certificate to excuse his attendance from court.
…
147. Mr Amos's symptoms of dizziness and vertigo are non-specific. They occurred more frequently in the aftermath of the accident on 26 July 2018 but at that time there was an aggravation of pre-existing anxiety and there were widespread unexplained pain complaints. The Panel specifically notes that Mr Amos' complaints of dizziness and vertigo had never previously caused him to lose balance and fall.
148. The available reports from Dr Voutos did not mention dizziness at the actual time of the fall. The triage statement at Royal Prince Alfred Hospital on 30 August 2018 stated there was a dizzy spell preceding the fall. A dizzy spell was not mentioned by Dr Givorshner or in the admission summary of that date.
149. The Panel notes that Mr Amos sustained a closed head injury sufficient to cause him to suffer a fractured nose but not significant enough to cause him to suffer any damage to the brain. The Panel accepts the possibility that a closed head injury such as that sustained by Mr Amos could be sufficient to cause post-traumatic paroxysmal positional vertigo.
150. However, when post-traumatic paroxysmal positional vertigo occurs, there is a sensation of the room spinning and immediately the person suffering the condition will reach out for support and close the eyes. Mr Amos described a spinning sensation in his head but did not specifically describe the environment around him spinning such that he found it necessary to reach out for support. In the Panel's experience the symptoms of positional vertigo are very specific whilst the symptoms described by Mr Amos were non-specific. Indeed, the Panel is satisfied if the claimant's fall had occurred as a result of positional vertigo Mr Amos would have said so, and it would have triggered further investigations.
151. The Panel finds it significant that at no time did any medical practitioner feel it necessary to refer Mr Amos for vestibular functioning testing, which suggests his complaints were of non-specific dizziness but not indicative of paroxysmal positional vertigo.
152. The Panel finds there is no evidence the accident caused disruption to one or more otoliths in the inner ear as suggested by Dr Dryson where there was no complaint of positional vertigo at the time of his hospital attendance following the accident, in the records of Dr Voutos and in the history provided to Medical Assessor O'Neill.
153. Mr Amos had a history of complaint of non-specific dizziness[.]
154. The Panel concludes that the fall on or about 24 August 2018 was either accidental or related to the pre-existing non-specific dizziness of which Mr Amos had complained from time to time before the accident on 26 July 2018.
155. The Panel finds the fall which occurred at home on or about 24 August 2018 was not caused or contributed to by the accident on 26 July 2018."
The primary judge found that the Review Panel had denied procedural fairness to the claimant (by not following the approach that would have been required in a tribunal or court), as follows:
"131 However, in this case, it was necessary for the Review Panel to alert the plaintiff, by asking questions during clinical examination and/or otherwise, as to the precise aspects of the distinction the Review Panel was seeking to make between the symptoms suffered by the plaintiff and the symptoms necessary to support the conclusion as to causation, according to the diagnosis of the initial Medical Assessor.
132 In the absence of such an alert or such notice, the plaintiff was denied a real and practical ability to deal with the issues that were foremost in the minds of the members of the Review Panel and the plaintiff was, as a consequence, denied procedural fairness.
133 I have no doubt that the doctors on the Review Panel were well aware of the difference between 'paroxysmal positional vertigo' and 'dizziness', but to the extent that those doctors relied upon definitions used by the plaintiff and descriptions by the plaintiff (and his general practitioner) and in circumstances where the terms may, loosely, be utilised interchangeably, the Review Panel was required to draw the distinctions it was seeking to make to the attention of the plaintiff in a way which gave the plaintiff reasonable opportunity to deal with the issue."
Grounds 1-6 of the amended notice of appeal allege error in the primary judge's conclusion that the Review Panel had denied the claimant procedural fairness. The effect of grounds 1-5 is that the primary judge was in error in finding that the Review Panel had to put the claimant on notice of the specific symptoms of PPV. Ground 6 alleges that the primary judge was in error in placing any weight on Dr Steiner's conclusion that the fall was causally related to the accident, as he assumed, rather than found, causation. It is not necessary to set out the grounds as there is a degree of overlap in the formulation of each of the grounds, all of which challenge the conclusion.
Procedural fairness depends, in part, on context. For example, in a judicial or arbitral setting, procedural fairness generally requires a hearing, whereby parties have an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent arbiter or judge. However, in the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing.
The High Court considered what procedural fairness requires in the context of a body such as the Review Panel in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) and said, at [47]:
"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
(Emphasis added and footnotes omitted.)
Having regard to Wingfoot, it can be seen that the legislative choice to have the assessment of %WPI performed by a medical assessor or a review panel (constituted by three members, two of whom are medical assessors) rather than in court proceedings, had significant ramifications for the nature and extent of procedural fairness which was required. In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties' attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.
In the present case, the critical issue was whether the fall was caused by an injury sustained in the accident. Rules that apply in court proceedings, such as the rule in Browne v Dunn, usually have no analogue in a medical assessment under the Act: see, in a different context, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
The requirements of procedural fairness in a context similar to the present were considered by this Court in Frost v Kourouche in which this Court allowed an appeal from an evidentiary ruling by a primary judge. The primary judge rejected a review panel's certificate (that the %WPI was less than the threshold), finding that the review panel had denied the plaintiff (the respondent on the appeal) procedural fairness by not adjourning its review to permit her to obtain legal advice about the effect of social media posts submitted by the defendant (the appellant), which painted a very different picture of the plaintiff than appeared in the expert reports. Leeming JA (Beazley P and Basten JA agreeing) considered, at [41], that the test was whether the plaintiff had been accorded "practical justice": see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).
Leeming JA said, at [42]:
"The materials before the court do not suggest any practical injustice or
absence of a fair hearing. It was perfectly clear that NRMA was contending
that Ms Kourouche's claimed psychological conditions did not accord with
what was recorded in her social media profile. It was perfectly clear that
NRMA submitted that Ms Kourouche's history was false. It was perfectly clear
that NRMA submitted that the review panel should certify a psychological
impairment of less than 10% such that s 131 would apply. And it was perfectly
clear when the review panel determined to re-examine Ms Kourouche that the
possibility that all or some of its members might disbelieve her history was
real. This is not a case where the possibility of the panel's adverse conclusion
ought to have taken Ms Kourouche by surprise."
In the present case, the principal issue before the Review Panel was whether the injuries sustained in the accident had caused the fall not, as the insurer submitted in this Court, whether the claimant had experienced all or any of the symptoms of PPV. The claimant (through his solicitors) was well aware, by reason of the documents relied on by the insurer and the submissions it made (which have been set out or summarised above), that the insurer was relying on matters, which included the following, to submit that the fall was not caused by those injuries:
1. the claimant's pre-accident experiences of dizziness, for which Serc had been prescribed;
2. the history of symptoms which was inconsistent with the claimant having sustained PPV at the time of the accident or at the time of the fall;
3. the absence of loss of consciousness at the time of the accident; and
4. what the insurer submitted was the applicant's preparedness to tailor what he said in medical examinations and in his statements to obtain compensation.
The claimant submitted that PPV is a "term of art with a particular scientific meaning" and that the Review Panel needed to do more to ensure fairness to the claimant, given the different terminologies used by him when compared with the medical learning, with which the medical assessors on the Review Panel can be taken to have been familiar.
In these circumstances, it is difficult to accept that the claimant was taken by surprise by the Review Panel's adverse conclusion, since this was the conclusion for which the insurer contended, as supported by its submissions and documents, and in particular, the clinical notes which recorded the claimant's presenting histories and contemporaneous symptoms. The Review Panel was not obliged to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J). Further, the Review Panel was entitled to apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision.
In effect, the standard set by the primary judge would have required the Review Panel to put the three possible causes of the fall (non-specific dizziness, PPV or accidental) to the claimant and ask the claimant whether he experienced the symptoms which the Review Panel found would have established that he had suffered PPV. Such is the power of suggestion that, had this process been followed, there would have been a real possibility that the claimant would have given the answer which he appreciated would result in a favourable medical assessment and entitle him to an award of damages for non-economic loss.
In the present case, the claimant had several opportunities to describe his symptoms after both the accident and the fall (to the ambulance officers, the hospital staff, Dr Voutos, experts to whom his solicitors referred him, experts by whom he was examined at the request of the insurer, in his statement and to the various medical assessors, as well as in the course of the examination conducted by Dr O'Neill). He well knew the relevance of such descriptions since the matter to be determined by the Review Panel was whether the fall was causally connected with the injuries he sustained in the accident. The claimant and his solicitors were in a position to appreciate that the causal connection could be established if he could show that he suffered a head injury in the accident which caused vertigo of the type that could be shown to have precipitated the fall. While the application of the medical expertise (particularly in neurology) employed by Dr O'Neill in his assessment may not have been known by the claimant or his solicitors, they were in a position to know, at least in a general sense, the significance of the questions about dizziness and vertigo.
The Review Panel's reasons indicate that when Dr O'Neill asked the claimant about the incident which had precipitated the need for Dr Voutos' house call on 16 May 2018, the claimant was unable to recall either the incident or the duration of his symptoms ([109] of the Review Panel's reasons). In those circumstances, there could be no denial of procedural fairness in Dr O'Neill not taking the matter further by putting to him Dr Voutos' record of the consultation and pressing him for a description of what he experienced on that occasion.
The Review Panel's reasons at [129]-[137] are instructive as to the Review Panel's process of reasoning. The Review Panel noted, at [129], that the claimant had said that he felt "dizzy" before falling. When describing the claimant's medication, the Review Panel noted, at [135], the medication which the claimant said he took for "dizziness or vertigo". In [136] of its reasons, the Review Panel said that the claimant "differentiated dizziness and vertigo" and set out what the claimant meant by dizziness ("a sensation of light-headedness"), as distinct from vertigo ("an internal feeling (in the head) like the room was spinning. There was no actual spinning of the environment.").
In [149] of its reasons, the Review Panel accepted the possibility that the closed head injury sustained by the claimant in the accident "could be sufficient to cause PPV". However, at [150], the Review Panel described how the PPV would have been experienced by the claimant, had PPV (rather than non-specific dizziness) precipitated his fall. Because the claimant's non-specific descriptions of what he felt immediately before the fall did not correspond with PPV (which is characterised by very specific symptoms), the Review Panel concluded that the fall was not caused by PPV. Further, the Review Panel placed some weight on the circumstance that none of the claimant's treating doctors had ever referred him for testing for PPV (which suggested that they did not consider it to be warranted).
The Review Panel was not obliged to put to the claimant the various versions he had given about his symptoms over time, with a view to ascertaining which version was the correct, or most accurate, one. It can be inferred from the Review Panel's reasons that Dr O'Neill took care to ascertain what the claimant meant by dizziness and vertigo in order that the Review Panel could understand what he meant when describing what led to the fall. The Review Panel was entitled to accept the description of the claimant's symptoms which the claimant gave in the course of the examination it conducted. The Review Panel was not obliged to spell out its thought processes or inform the claimant of the consequences of giving one answer rather than another, or of describing dizziness or vertigo in one way rather than another.
In these circumstances, the Review Panel did not deny procedural fairness to the claimant. It was entitled to apply its own medical expertise and to find that the fall was not causally related to the accident because the fall was not caused by PPV.
Medical assessors are appointed by the President of the Personal Injury Commission. [6] The President is to arrange for a medical dispute to be dealt with by one or more medical assessors. [7] If a party is dissatisfied with a medical assessment, an application may be made to the President for a review on the ground that the assessment was "incorrect in a material respect". [8] The subject matter of the review is "a new assessment of all the matters with which the medical assessment is concerned". [9]
A review panel comprises two medical assessors and a member of the Commission chosen by the President. [10] The review may include a further medical examination of the claimant, which may be carried out by one member only of the panel. [11] The medical assessment under review had determined the degree of permanent impairment caused by the accident to "eyes - fractured right orbit" as 29%. The review involved an examination of the appellant by a medical specialist (neurologist) on the review panel.
There was no representation nor adversary present at the examination, nor at any other stage of the review, but both the claimant and the defendant's insurer had provided factual and legal submissions to the panel prior to its reconsideration of the medical assessment.
Procedurally, a governing provision was s 43 of the Personal Injury Commission Act, which states:
43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Neither the conduct of an assessment by a medical assessor, nor by a review panel, constitutes proceedings before the Commission for the purposes of s 43. However, the Personal Injury Commission Rules 2021 (NSW) provide that s 43 applies in relation to "panel review proceedings" so that a function given to the Commission by s 43 "is to be read as being given to the panel conducting the panel review proceedings". [12] The term "panel review proceedings" is defined to include a review of a medical assessment. [13]
Perhaps curiously, no reference to "procedural fairness" appears in the Personal Injury Commission Act, nor in the Rules made under that Act. There is one reference in the Motor Accident Injuries Act, in s 7.23(3), which states that "[i]n any court proceedings, the court may … reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate …".
It may be inferred from this provision that, at least in order to obtain its statutory status in curial proceedings, an assessment must comply with the rules of procedural fairness, whatever they may require in particular circumstances. It was not suggested that there was anything in either Act which precluded the operation of such a principle to the extent that it would be required by the general law.
However, the primary judge took the matter one stage further, holding that s 43(3) expressly required compliance with procedural fairness. [14] That proposition is controversial. Directions to "act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" may be found in respect of a variety of bodies. Like a privative clause, such provisions must be read in context. In Moses v Parker; Ex parte Moses, [15] the Privy Council accepted that a statute using similar language in conferring power on Supreme Court judges to recommend to the Governor how to dispose of ungranted land in Tasmania, confirmed that the judges were not exercising a judicial function. In British Imperial Oil Company Ltd v Federal Commissioner of Taxation, [16] such a provision was said to be decisive in demonstrating that a Taxation Board of Appeal was not a court of the Commonwealth and therefore could not be invested with judicial power. By way of contrast, similar words conferring powers on the High Court sitting as court of disputed returns in relation to an election to the Commonwealth Parliament, have been said not to be "inimical to the exercise of the judicial power of the Commonwealth" because they "do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness". [17] The court of disputed returns is a curial body.
On the other hand, in Minister for Immigration and Multicultural Affairs v Eshetu in relation to the elements of such a provision governing the procedure of the Refugee Review Tribunal, Gleeson CJ and McHugh J stated: [18]
"They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question."
Because, absent inconsistent statutory provisions, there will be an implied obligation to comply with principles of procedural fairness, in accordance with the general law, it is not necessary to pursue further the significance of s 43 of the Personal Injury Commission Act. It may be accepted that, if principles of procedural fairness were engaged under the general law, such language would not disengage them.
Separately, the primary judge implied that the rule applicable in adversarial litigation that a cross-examiner must put to a witness the case on which the cross-examiner's client proposes to rely in contradiction of that witness, [19] governed the conduct of a review panel carrying out a medical assessment. [20] However, that principle was held not to apply on an application for refugee status before the Refugee Review Tribunal. [21] It cannot apply to the conduct of a medical examination by a medical assessor, where there is otherwise no hearing, adversarial or inquisitorial.
The function of a medical assessor was addressed by this Court in Insurance Australia Group Ltd t/as NRMA Insurance v Keen. [22] The relevant aspect of Keen was a claim that the medical assessor was required to address a substantial and clearly articulated argument that causation had not been established and, in failing to do so, denied the insurer procedural fairness. [23] Leeming JA stated:
"38 … Courts resolve disputes. Medical assessors assess the degree of permanent impairment.
39 A court's task is to resolve justiciable controversies, constituted by the parties' competing claims. A court should address substantial and clearly articulated submissions, not least because there is a danger that the entirety of the dispute will not be resolved if some substantial submission is not addressed. A court may not need to resolve every issue, but it should make it clear why the submissions it has resolved are dispositive of the case and ideally why it is unnecessary to determine other submissions which have been advanced by the parties unless they are patently insubstantial.
40 The function of the assessor is quite different. The assessor was obliged following the referral by SIRA to determine a quintessentially factual issue: the degree of permanent impairment suffered by Mr Keen caused by the motor accident, reduced to a percentage calculated in accordance with the Guidelines. As the High Court emphasised, speaking of the decisions of medical panels under the Accident Compensation Act 1985 (Vic) in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47], the Medical Panel was not required to decide a dispute or make up its mind by reference to competing contentions or competing medical opinions:
The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
It is, for completeness, useful to set out the preceding passage in the judgment of the High Court in Wingfoot leading up to the conclusion quoted by Leeming JA. Thus, the passage commenced: [24]
"47 The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions."
The primary judge accepted that the function of a review panel was to reach its own conclusions on the medical question before it. [25] The primary judge continued:
"139 Nevertheless, in performing that function, and notwithstanding its particular expertise, the Review Panel is obliged to observe procedural fairness and to give each of the parties, in this case the plaintiff, the opportunity to deal with the underlying question or matter with which it is dealing and which will inform the Review Panel's opinion. …"
This passage referred to and summarised the extract from Wingfoot at [47] set out above. However, the opportunity to be accorded (which was accorded) was for each party to supply material and make submissions on the basis of that material. Nevertheless, the primary judge went further, stating:
"In a case such as this, where the distinction upon which the Review Panel is relying is a fine and detailed distinction, it is necessary to provide sufficient information and/or questioning to the plaintiff so that the plaintiff is on notice of the precise issue with which the plaintiff must deal, or, at least, is given sufficient information to allow the plaintiff or his legal representatives to have a reasonable apprehension of the fine nature of the distinctions being drawn and the need to deal with them."
That expansion was not supported by the reasoning in Wingfoot, which did not refer to procedural fairness at large, but to a specific aspect of the obligation which was described. What the claimant sought to do, and the primary judge accepted, was to expand that obligation to impose on the panel a requirement to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive, so that the plaintiff or his legal representatives could deal with it. That is not the way a medical examination is conducted. The proposed expanded obligation is inconsistent with the function of the medical assessors identified in Wingfoot and with the statutory scheme under the New South Wales legislation noted above.
That is not to say that there may not be other aspects of principles governing procedural fairness which apply to medical assessors. For example, aspects which guarantee an impartial and independent decision-making process will no doubt apply. Those matters were not relevant to the discussion in Wingfoot, which was addressed to the scope of the reasons required of the Tribunal. They are not relevant here.