Amos v AAI Limited t/as GIO

Supreme Court of NSW|2023-07-14|Before: Rothman J

Marelic v Comcare (1993) 47 FCR 437; [1993] FCA 790 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White [No 2] (1990) 35 IR 60 R v Birks (1990) 19 NSWLR 677 Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298; [1989] HCA 13 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re National Building Trades Construction Award 1975 (1983) 17 IR 446 Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 Skinner v Naunihal Singh (1913) 40 Indian Appeals 105 Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48 TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 Texts Cited: O. Howard Beale "Equity and Good Conscience", (1937) 10 ALJ 349 Category: Principal judgment Parties: Jesse Owen Amos (Plaintiff) AAI Limited t/as GIO (First Defendant) The President of the Personal Injury Commission of New South Wales (Second Defendant) John O'Neill, Ian Wechsler, Susan McTeff as members of the Review Panel of the Personal Injury Commission of New South Wales (Third Defendant) Representation: Counsel: J Gumbert/M Jones (Plaintiff) C Allan (First Defendant) Submitting Appearance (Second Defendant/Third Defendant)

Solicitors: Allsworth Lawyers (Plaintiff) Moray & Agnew Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant/Third Defendant) File Number(s): 2023/00042671 Decision under appeal Court or tribunal: Personal Injury Commission of NSW Jurisdiction: Motor Accidents Division Date of Decision: 15 November 2022 Before: The Review Panel of the Personal Injury Commission, comprised of Medical Assessor O'Neill, Medical Assessor Wechsler and Member McTegg File Number(s): R-M10497637/22

JUDGMENT

HIS HONOUR: The plaintiff seeks judicial review and the quashing of a medical assessment and/or decision issued by a Review Panel of the Personal Injury Commission of New South Wales ("Commission") on 15 November 2022. The decision was made, purportedly, pursuant to the terms of s 7.23 of the Motor Accidents Injuries Act 2017 (NSW) (hereinafter the "MAIA"). Orders are sought in the nature of Certiorari or, alternatively, a declaration setting aside or declaring invalid the aforesaid decision. Orders are also sought in the nature of mandamus requiring the President of the Commission to reallocate the matter to a differently constituted Review Panel for determination according to law.
As one would expect, the second defendant (the President of the Personal Injury Commission of New South Wales) and the third defendant, being the members of the Review Panel, have submitted to any order of the Court, save as to an order for costs.

Factual History

The plaintiff, Jesse Amos, alleges that he sustained personal injury as a result of a motor vehicle accident on 26 July 2018 (hereinafter "the Accident"). The Accident is said to have taken place when a car in which the plaintiff was the front-seat passenger collided with the rear of a bus which was pulling out into the road.
The first defendant, AAI Limited trading as GIO (hereinafter "GIO") is the respondent insurer in the plaintiff's personal injury claim arising from the Accident. The plaintiff alleged that he sustained a number of injuries in the Accident. For the purposes of this application, the most relevant injury is a fracture to the right orbit or eye socket.
The fracture itself was sustained on 30 August 2018, just over one month after the Accident. The plaintiff alleges that the Accident and the injuries sustained directly in the Accident were the cause of the eye socket injury. The reasoning, essentially, is that the Accident caused vertigo and dizziness, which, in turn, caused the plaintiff to fall and to sustain the eye socket injury.
The extent of the plaintiff's alleged permanent impairment arising from the Accident was disputed and, on that account, the matter was referred to the Personal Injury Commission (hereinafter the "Commission") for determination. The initial assessment was performed by Medical Assessor Steiner. Dr Steiner assessed a permanent impairment of 29% arising from the orbital fracture, consisting of 24% for the impairment to the visual system and 6% for impairment to the nervous system, and concluded that the fracture was caused by the Accident.
There were other injuries which were the subject of other assessments at or about the same time. All decisions were aggregated in the combined certificate of Medical Assessor Nichols on 15 February 2022 and the accumulated total whole person impairment was 52%.
GIO applied for a review of Dr Steiner's decision. GIO also contested some of the other medical assessment decisions, but those contests, and the result of the applications for review which resulted, are not relevant to the current proceedings before the Court.
Dr Steiner's decision was referred to the Review Panel for assessment. On 15 November 2022, the Review Panel issued a decision in which it concluded that Dr Nichol's combined certificate should be revoked and determined that the right orbital fracture was not caused by the Accident.
In reaching that decision, the Review Panel accepted that, while it was possible that a closed head injury sustained in the Accident led to paroxysmal vertigo, the fall on 30 August 2018 was either accidental or caused by non-specific, pre-existing dizziness. If causation were established, contrary to its view, the Review Panel considered that a 27% permanent impairment would arise. The plaintiff does not challenge the revocation of Dr Nichol's combined certificate because a separate Review Panel decision of 12 October 2022 necessitated such a course. The plaintiff, however, does challenge the Review Panel's findings on causation and consequent findings on permanent impairment in respect of the right orbital fracture.

Evidence and Submissions

The plaintiff relies on an Affidavit of Edgar Rojas of 14 April 2023. The defendant, GIO, relies on the Affidavit of Helene Tretheway of 4 May 2023.
As is ordinarily appropriate for judicial review proceedings, the Affidavits are limited to the provision of documents utilised in the assessment and/or review. A full set of exhibits is otherwise provided, although the essential or more relevant exhibits are attached to the two Affidavits. Included in the documents is the relevant decision of the Commission and, in particular, the decision of the Review Panel of 15 November 2022.
The decision of the Review Panel describes in some detail the findings of Dr Steiner which were under review. The decision also identifies the material tendered by each party on the review. The decision deals with issues associated with the credibility of the plaintiff, including a police history showing driving offences subsequent to the Accident, which was a period of time that the plaintiff asserted, in his evidence, that he rarely drove. The history also included serious domestic violence offences.
The Review Panel outlined the contemporaneous and expert medical reports, as well as relevant aspects of the plaintiff's medical history. The decision of the Review Panel records that the plaintiff had suffered facial and bodily injuries on prior occasions.
Prior occasions included a fall on 30 March 2008, while affected by alcohol, leading to facial injuries. There was also a motor vehicle accident on 17 July 2017 which led to neck and head pain.
There was also evidence of severe back pain and agitation associated with possible drug-induced mania on 1 January 2018. The Review Panel further noted that, subsequent to the incident on 17 February 2020, the plaintiff required hospitalisation for a suspected benzodiazepine overdose.
Medical records of the plaintiff's general practitioner were before the Commission. Those records included pre-incident reports of severe vertigo requiring medication on 9 August 2016 and, possibly, on 21 August 2017. On 16 May 2018, shortly before the Accident, there was an episode of vertigo which was so severe that it required the plaintiff's doctor to attend on a house call.
There were a number of medico-legal reports before the Review Panel, commissioned by solicitors for each party. It seems that many doctors accepted causation for the eye injury based on the plaintiff's self-reporting of developing dizziness following the Accident and then subsequently falling and injuring his eye as a consequence of that dizziness.
GIO relied on a psychological report of Dr Jeffrey Baron-Levi, who concluded that the plaintiff was malingering and exaggerating his ongoing symptoms. Dr Baron-Levi found the plaintiff to be a poor and evasive historian, who was negatively focused on his symptoms and had fallen into a "sick role". Dr Baron-Levi also thought that the plaintiff suffered a personality disorder which predated the Accident and led the plaintiff to manipulate and to exaggerate his symptoms for personal gain.
Medical Assessor O'Neill, a member of the Review Panel, examined the plaintiff and concluded that any vestibular disorder (relating to balance, dizziness, et cetera) began prior to the Accident. He noted that vestibular examinations had all been normal in any event. Dr O'Neill noted the pre-existing reports of non-specific dizziness, including the severe vertigo event 10 weeks prior to the Accident.
The Review Panel noted that the plaintiff's reports concerning dizziness and/or vertigo prior to the fall were inconsistent. The Review Panel found that while the plaintiff sustained a closed head injury in the Accident, which fractured his nose, there was no evidence that the injury was severe enough to cause any brain damage.
While it was possible that the Accident and the injuries sustained from it could have led to some vertigo-like condition, the Review Panel considered that the plaintiff's reported symptoms did not accord with that condition. In that regard, the Review Panel reiterated the plaintiff's description of a sensation of spinning in his head, the Review Panel noted that the plaintiff never described the classic sensation of the room spinning around him.
The Review Panel also placed weight on the fact that the plaintiff's reports of the fall had always been non-specific. In that respect his treating clinical team had never thought it necessary to refer him for vestibular function testing, which would have been required were they to have thought that the plaintiff had post-traumatic paroxysmal vertigo. The Review Panel also noted that there was no evidence of damage to the brain or the inner ear in the testing and reports available to it.
After weighing all of these factors, the Review Panel concluded that the fall on 24 August 2018 was not caused or contributed to by the Accident.

Medical Reports

There were two reports of Dr Stephen Allnut, Forensic Psychiatrist. Those reports are dated 2 January 2020 and 9 December 2020, respectively. Dr Allnut diagnosed the plaintiff as having chronic post-traumatic stress disorder (hereinafter "PTSD") and assessed a whole person impairment of 24% arising from that condition. In the later report, dated 9 December 2020, he supplemented the 2 January 2020 report and diagnosed an aggravation of a pre-existing anxiety disorder with PTSD symptoms and claustrophobia. The whole person impairment remained at 24%.
Before the Review Panel was a vocational report of Matthew Buxton of 25 August 2020. Mr Buxton found no viable employment prospects for the plaintiff at the time of assessment. There was also a report of Dr Evan Dryson, Occupational Physician, of 21 October 2019 in which Dr Dryson noted nasal fractures arising from the Accident and considered there was ongoing vertigo, shoulder, neck and back injuries as well as consequent injury to the right orbit.
Dr Andrew Keller, also an Occupational Physician, reported on 5 November 2019 and disagreed with Dr Dryson's assessment. Dr Keller considered there were no bodily injuries arising from the fall other than the nasal fractures. Dr Keller did not find evidence of ongoing injuries to the neck, back, shoulders or legs.
There is also a report before the Review Panel of Dr Doron Samuell Psychiatrist, dated 18 December 2019. Dr Samuell, who was commissioned by GIO, diagnosed the plaintiff as having PTSD of a mild to moderate severity.
There are three reports from Dr Jeffrey Baron-Levi, Psychologist, dated 18 September 2020, 22 September 2020 and 29 October 2020. In the first report, Dr Baron-Levi concluded that the plaintiff was exaggerating his symptoms and presentation. The report noted Dr Baron-Levi's view that the plaintiff was a poor historian and evasive and was well-entrenched in a sick role.
The second report, of 22 September 2020, assessed the whole person impairment as a consequence of the previously expressed views at 24%. In his third report, of 29 October 2020, Dr Baron-Levi expressed the view that he remained of the firm view that the plaintiff could work and was "catastrophising" his symptoms and irrationally believed he was more disabled than what he actually was. Dr Baron-Levi suggested psychotherapy to address this issue.
The Commission conducted a review and reported on 12 October 2022. This review was conducted by Assessors Curtin, Dixon and McTegg. The review concluded that the cervical spine, lumbar spine, left shoulder, right shoulder, and abdominal injuries suffered by the plaintiff as a result of the Accident did not exceed 10% whole person impairment.

Grounds for Judicial Review

The plaintiff seeks, as earlier stated, judicial review. The grounds stated in the Amended Summons are prolix and insufficiently precise. Nevertheless, the grounds may be summarised in the following way: Ground 1: The Review Panel failed to explain the difference between the sensation of spinning in the head and the sensation of the room spinning, in circumstances where the room was never actually spinning and the only place the plaintiff could have felt such spinning was "in the head". This is a failure to expose a path of reasoning and is internally inconsistent. This placed the Review Panel in breach of s 7.23(7) of the MAIA and the common law duty to provide reasons. The Court has taken this ground to be error on the basis of an insufficiency of reasons or a failure to provide sufficient reasons, the particulars of which are as detailed in the foregoing. Ground 2: To the extent that the Review Panel sought to rely on the difference between the sensation of spinning in the head and the sensation of the room spinning, or the necessity of the plaintiff needing to reach out for support, as a critical factor, it should have specifically put that proposition to him, which it did not. This denied the plaintiff procedural fairness. As is obvious, the Court has taken this to be a failure to comply with the rules of procedural fairness and/or a breach of the rules of natural justice. Ground 3: Where the crucial issue or factor in the determination of the Review Panel was the plaintiff's symptoms preceding the fall and the extent to which those symptoms met the specific definitions for "paroxysmal positional vertigo", and not "dizziness", given that the terms are used by many interchangeably, the Review Panel was required to draw such a distinction to the attention of the plaintiff in order to give the plaintiff an opportunity to respond. The failure to do so amounted to a denial of procedural fairness. Again, the Court treats this as a ground of appeal relating to a denial of procedural fairness and/or a breach of the rules of natural justice, particularised in the foregoing manner. Ground 4: The Review Panel treated the lack of contemporaneous evidence of complaint as determinative of causation. This was jurisdictional error. Ground 5: The Review Panel was required to conduct the assessment in accordance with the MAIA, which, in turn, required that the Review Panel follow the Motor Accident Guidelines. The Review Panel failed to bring to the attention of the plaintiff inconsistencies in the medical records and clinical findings on which it sought to rely and failed to give the plaintiff an opportunity to respond to those alleged inconsistencies. In taking that approach, the Review Panel failed to comply with cl 6.21 of the Motor Accident Guidelines and thereby constructively failed to exercise its jurisdiction and failed to afford the plaintiff procedural fairness.
The submissions of GIO deny each of the grounds and seek to defend the jurisdictional and legal validity of the decision of the Review Panel.

Ground 1

The plaintiff submits that there is a requirement to provide adequate written reasons for any decision and, referring in particular to [150] of the decision of the Review Panel, criticised the conclusion that the plaintiff did not specifically describe the environment around him as "spinning". Notwithstanding such conclusion, the Review Panel had earlier expressed the view that the plaintiff had an internal feeling "like the room was spinning". The plaintiff submits that these two comments, repeated in the decision, are irreconcilably inconsistent and the inconsistency is unexplained.
Further, in relation to the same issue, the plaintiff submits that the Review Panel failed to explain what was meant in the decision by the term "in the head". The plaintiff submits that all subjective perceptual disturbances must be felt "in the head" and the Review Panel did not explain why the plaintiff's symptoms did not fit within the description of vertigo.
As to the comment of the Review Panel that a person suffering from vertigo would reach out for support, the plaintiff submits that the plaintiff fell as a consequence of his condition and, of necessity, must not have had available support to stay upright. Moreover, the Review Panel never asked the plaintiff whether he reached out for support at the time he fell or at other times in which he suffered the condition.
On the forgoing basis, the plaintiff submits that the Review Panel's reasoning is internally inconsistent. Further, the plaintiff submits that the inconsistency does not reveal the Review Panel's path to its conclusion (other than inconsistently) and lacks evident and intelligible justification.

Ground 2

The basis in principle of the plaintiff's submission in relation to this ground is that the plaintiff submits that where a decision-maker fails to make an obvious enquiry about a critical fact, the existence of which is easily ascertainable, the failure constitutes a constructive failure to exercise jurisdiction and a denial of procedural fairness. The plaintiff submits that, in this situation, the Review Panel failed to enquire whether the plaintiff felt like the room was spinning around him and whether he needed to reach out for support. The plaintiff, as a result of his status as a layperson, ought not to be expected to describe all relevant symptoms in exact medical terms, in circumstances where he does not know, or may not know, the difference between "dizziness" and "vertigo", or "dizziness" and "the room spinning around him", each of which distinction seems to be relevant and crucial to the conclusions of the Review Panel.
The submission points out that the plaintiff had given a history and description in which he remarked that he felt as though the room was spinning in his head. If the Review Panel considered that there was some distinction between this description and the criteria being utilised by the Review Panel of the environment spinning, it was, in the submission of the plaintiff, incumbent upon the Review Panel to enquire with the plaintiff further, to ensure fairness.
Such an enquiry, being an enquiry as to the nature of the spinning environment, would have assisted with filling the gap in the Review Panel's explanation and the Review Panel failed to perform this duty. In failing to enquire on this question, the Review Panel denied the plaintiff procedural fairness and constructively failed to exercise its jurisdiction, according to the submission.

Ground 3

The submissions of the plaintiff referred to the conclusion that the Review Panel had specific definitions of "paroxysmal positional vertigo" and the type of vertigo or dizziness described by the plaintiff (being that the room was spinning or a feeling of spinning in one's head). However, laypeople and even some doctors may use these terms interchangeably.
The plaintiff could not be expected to use medically precise language to express a history or symptom relating to vertigo. As a consequence, the Review Panel was required to bring the specific tests to the attention of the plaintiff in a manner which enquired which of those definitions applied and which revealed the critical factors upon which the decision was going to turn. Anything less than that was a failure to give the plaintiff a reasonable opportunity to respond to the preliminary view of the Review Panel.
The plaintiff contended that a failure to give him notice of the kind to which reference has now been made has resulted in a denial of procedural fairness and, as a consequence, jurisdictional error.

Ground 4

The plaintiff submits that, in relation to this ground of judicial review, the conclusion of the Review Panel on causation was predicated on the fact that there was a lack of contemporaneous complaint. This is legal error, on the submission of the plaintiff.
The plaintiff refers to passages in the decision of the Review Panel which considered the lack of contemporaneous records. Those passages referred to contemporaneous notes (or the lack thereof) relating to dizziness or vertigo symptoms. In particular, the plaintiff refers to the following passage: "The Panel finds there is no evidence the accident caused the 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."
The plaintiff submits that the path of reasoning of the Review Panel, to the extent that it is known, illustrates that the Panel has treated the absence of contemporaneous complaint of vertigo as determinative, amounting to jurisdictional error.

Ground 5

In relation to Ground 5, the plaintiff submits that cl 6.41 of the Motor Accident Guidelines requires an Assessor to raise any inconsistency in the Assessor's findings with the injured person, to give that person an opportunity to respond. The medical records before the Review Panel were replete with references to the plaintiff claiming that he experienced vertigo.
In circumstances where the Review Panel were, even on a preliminary basis, drawing the distinction between "dizziness" and "vertigo" and the symptoms described were not "vertigo", it was incumbent on the Panel to draw the inconsistencies between their own clinical findings and the medical records to the attention of the plaintiff, in order to give him an opportunity to respond.

Ground 1

GIO submits that the complaint by the plaintiff in this ground centres on the perceived inconsistency between the description of the symptoms of paroxysmal positional vertigo in [150] of the decision of the Review Panel and the plaintiff's description of his symptoms of vertigo at [137] of the decision of the Review Panel. GIO denies any inconsistency. It maintains that the plaintiff described "being dizzy" before the fall and did not say that the symptoms described at [137] were felt before the fall. Further, the plaintiff submitted before the Review Panel that he did not suffer vestibular disease/impairment.
The question referred to the Review Panel for assessment was whether the fractured right orbit was caused by the Accident. It was not enough for the Review Panel to find that the plaintiff suffered paroxysmal positional vertigo after the Accident. In order to find the right orbit fracture was a consequence of the Accident, it also had to find that the fall was occasioned by an episode of paroxysmal positional vertigo, which was caused by the Accident. On the material before it, the Review Panel could not come to that finding.
Finally, on this ground, GIO relies on the proposition that the standard of reasons required of a medical assessor is different from the standards required of a court or judicial officer. A medical assessor's reasons (including the reasons of a Review Panel) reflect professional judgment and expertise in the medical profession and must be considered in that light.

Ground 2

In relation to the plaintiff's submissions on Ground 2, GIO submits that the "critical facts" upon which the plaintiff is relying and which the plaintiff submits the Review Panel should have brought to his attention were only relevant to the possible diagnosis of paroxysmal positional vertigo. That diagnosis was not a fundamental issue before the Review Panel. Rather, the fundamental issue was whether the post-Accident fall was caused by the Accident-related symptoms.
In other words, the issue was not whether the applicant suffered vertigo as a result of the Accident, but whether the vertigo which the plaintiff may have suffered caused the fall and was caused by the Accident. The plaintiff did not allege that he suffered "vertigo", on the submission of GIO. Instead, the plaintiff alleged that he "felt dizzy", which the plaintiff, himself, differentiated to the symptoms of vertigo. The plaintiff was asked to describe the symptoms of dizziness and vertigo, which he did. The Review Panel used that information as part of its decision-making process.
As a consequence, there has been no denial of procedural fairness. Nor has there been a constructive failure to exercise jurisdiction.

Ground 3

Further to the submissions put by GIO in relation to Ground 2, GIO submits, in relation to Ground 3, that the Review Panel did not make a "fine distinction" between vertigo and dizziness. The Review Panel enquired of the plaintiff what he meant when he used each term.
It was the clinical judgment of the Review Panel that the symptoms described by the plaintiff were non-specific. It was not the function of the Review Panel to educate the plaintiff on the symptoms of paroxysmal positional vertigo.

Ground 4

In relation to the issue raised by Ground 4 and the submissions of the plaintiff, GIO has submitted that the Review Panel did not use the absence of contemporaneous complaint as determinative of causation. The absence of contemporaneous complaint was noted but formed part of a well-explained set of reasons that also relied on other factors. There is no error in taking into account the absence of contemporaneous complaints as one of the factors to be taken into account in determining the effect of the Accident. GIO maintained that no error is disclosed, contrary to the submissions of the plaintiff.

Ground 5

GIO submitted that there were no inconsistencies between the clinical findings of the Review Panel and the medical records and/or observations of clinical factors, which were required, it is alleged, to be brought to the plaintiff's attention. The plaintiff informed the Review Panel that he had felt dizzy before the fall. The plaintiff differentiated the symptoms of dizziness from the symptoms or vertigo.
The finding of the Review Panel that the Accident was potentially caused by non-specific dizziness is consistent with the description of the plaintiff. Again, on the submission of GIO, no error is disclosed.

General Comments

In reply, the plaintiff maintains that the description by the Review Panel of the plaintiff's history was that he recalled feeling dizzy before the fall. However, the plaintiff also reported loss of memory, which was noted by the hospital. Even if the plaintiff were not to have reported, specifically, "vertigo" to the Review Panel, the non-description in those terms is not conclusive evidence that he did not experience symptoms of vertigo immediately preceding the fall.
The plaintiff submitted that the crux of the submission of GIO is that, because the plaintiff self-described only dizziness as distinct from vertigo at the time of the fall, any errors made by the Review Panel were not material to the decision. However, as submitted in chief, the plaintiff maintains that such a distinction puts too great a technical emphasis on the lay description by the plaintiff and that the "dizziness" described by the plaintiff in some conversations may have been "vertigo". He submitted that the Review Panel did not investigate the plaintiff's description to differentiate the two. Because the description "dizziness" may have included "vertigo", the failure to investigate and to deal with the matter on that basis is material error.
Further, the plaintiff submitted that the reliance by the Review Panel on the report of Dr Scoppa to the effect that there was no vestibular impairment was a clinical diagnosis relevant only to the time of Dr Scoppa's assessment. As a consequence, it said nothing about whether the vestibular impairment existed at the time of the fall.
Further, in reply, the plaintiff reiterated that there can be no external symptoms of a room spinning, in circumstances where rooms do not spin. As a consequence, all symptoms are necessarily internal to a person suffering vertigo.
Therefore, the description given by the plaintiff that it was "spinning in his head" was a statement that recognised the physical fact that "rooms do not spin" and does not indicate that he was not in fact experiencing vertigo at the time of the fall. The reasoning of the Review Panel is, therefore, internally inconsistent.
In reply on Ground 2, the plaintiff submits that a diagnosis of paroxysmal positional vertigo was fundamental to the issue before the Review Panel. The Review Panel was considering whether the consequent fall was caused by the Accident. Where the Accident may have caused paroxysmal positional vertigo and the plaintiff may have been suffering vertigo, noting that the Review Panel determined that vertigo could have been caused by the Accident, it was fundamental to the decision to determine whether the vertigo was caused by the Accident.
The Review Panel should have enquired further with the plaintiff. The Review Panel should have ensured that it had all relevant information and that procedural fairness was afforded to the plaintiff.
In reply on Ground 3, the plaintiff reiterated that asking the plaintiff to describe what is meant by "dizziness" and "vertigo" does not discharge the duty of the Review Panel to afford the plaintiff procedural fairness. The distinction between paroxysmal positional vertigo and dizziness, given the similarities in lay person descriptions, medical professional descriptions and dictionary descriptions, were extremely fine, yet the Review Panel relied upon the lay person description as determinative on the question of causation.
Those tests and distinctions were not brought to the attention of the plaintiff, and he was not asked whether he suffered or did not suffer symptoms that would have delineated between the two. Accordingly, the Review Panel has denied the plaintiff procedural fairness on a material issue.
In reply on Ground 4, the plaintiff submitted that the submission of GIO does not engage with the argument of the plaintiff on this issue and otherwise reiterated the submissions put in chief.
In reply on Ground 5, the plaintiff reiterated that the inconsistencies to which the plaintiff was referring in submitting that the Review Panel should have brought the inconsistencies to the attention of the plaintiff are the different reports of either dizziness or vertigo and the symptoms allowing for a differential diagnosis, and this was not done, and the issue has not been engaged by GIO.

The Decision of the Review Panel

As already stated, the Review Panel issued reasons for its decision on 15 November 2022. The Review Panel issued a new Certificate determining the injuries and the extent of the whole person impairment and revoked the Combined Certificate of Medical Assessor Nichols of 15 February 2022. The new certificate does not certify or determine any whole person impairment as a consequence of the eye injury and the Review Panel revoked the Certificate of Medical Assessor Steiner of 31 March 2021 and determined that the fractured right orbit was not caused by the Accident.
The reasons for decision set out an introduction which recites the injuries said to arise from the Accident and claimed by the plaintiff. It also shortly states the nature of the accident being that the plaintiff was the front-seat passenger in a vehicle which collided with the rear of a bus.
The Review Panel, after summarising the provisions of the statute that prohibit entitlement to damages for non-economic loss if the degree of whole person impairment is not greater than 10%, recites that there is a dispute as to the degree of permanent impairment and states that the dispute "is in relation to whether the degree of permanent impairment sustained by [the plaintiff] as a result of the injury caused by the accident is greater than 10%." [1] The Review Panel states that such a dispute constitutes a medical assessment matter pursuant to sch 2, cl 2 of the statute. At [16] of the decision, the Review Panel states: "[16] Medical Assessor Scoppa does not explain why he concluded the dizziness and vertigo were not caused by the accident other than to say the claimant had a history of prior dizziness and vertigo reported by Dr Voutros. However, he also notes the claimant reported aggravation of those symptoms after the accident."
The decision sets out the procedure adopted by the Review Panel and the procedure that gave rise to the review. As part of that section of the decision, the Review Panel noted that it had agreed that an examination was required and, given the dispute as to causation, considered two medical examinations were required, one by Medical Assessor O'Neill and the other by Medical Assessor Wechsler.
The Review Panel extracted three paragraphs of the evidentiary statement of the plaintiff (in the proceedings before the Review Panel and the Commission generally, referred to as the "claimant") and, relevantly to the eye injury, recited at [13] of the evidentiary statement in the following terms: "[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." [2]
The decision then deals with a number of treating medical records, including records from the Bankstown-Lidcombe Hospital. The Review Panel refers to incidents on 30 March 2008, 17 July 2017 and 1 January 2018, each of which occurred prior to the Accident.
The first such incident recounted above was a fall to the footpath while under the influence of alcohol, which required treatment for facial injuries. The second medical record in this category, being the record of 17 July 2017, noted that the plaintiff presented with neck pain and headache following a rear end collision while driving, which caused tenderness in the spine at the C5-T2 and L5-S1 levels.
The third record to which reference was made, dated 1 January 2018, was a record that the plaintiff was transported to hospital by ambulance whilst "manic", noting the possibility of cocaine use and/or alcohol consumption. At that time, the plaintiff reported "severe back pain".
The fourth note, in the category of recording issues arising from the records of the Bankstown-Lidcombe Hospital, was a note that related to the Accident and noted that, on 26 July 2018, the plaintiff was transported to Bankstown-Lidcombe Hospital by ambulance; admitted overnight; and, while not being able to recall the event at the time, complained of pain everywhere, but mainly over his back and neck. The plaintiff underwent a CT of the cervical spine, of the brain and facial bones, of the abdomen and pelvis, and an x-ray of the chest.
The Review Panel noted the result of the CT scan, the report on which stated: "There are commuted fractures of the nasal bones along with overlying soft tissue gas in keeping with open fractures of the nasal bones. Extensive soft tissue swelling is seen in the nasal cavity with the fracture also involving the nasal septum, with displacement of up to approximately 3-4 mm. Bony fragment is also seen extending out into the subcutaneous soft tissues near the nasal bridge. There is a few mucous retention cysts in the maxillary sinuses". [3]
As to the subsequent fall which was the issue of contention before the Review Panel, the decision notes: "[57] On 30 August 2018, the [plaintiff] attended in relation to a subsequent fall, where he was diagnosed with an orbital fracture. The clinical notes report: '…Jesse Amos, who presented to the ED with a blowout fracture of inferior and infero-medial aspects of the right orbit with herniation of orbital content into the roof of the right antrum and into the ethmoid the sinus. The patient reports that he had MVA on 26/07/2018 and was seen in BDH and CT of facial bones showed nasal fracture only. 1/52 [i.e. one week] ago he was feeding his cats when fell forward and hit his face on ground. 2/7 [i.e. two days] ago seen by GP who organise CT facial bone and showed fracture…'" [4]
There is also a reference to an overdose or suspected overdose of benzodiazepine on 17 February 2020, the relevance of which is not absolutely clear. There are then references to notes from the Royal Prince Alfred Hospital ("RPA") and in particular surgical and clinical notes relating to the aftermath of the fall to which reference has been made.
The RPA clinical notes reported a history which included the Accident four weeks earlier, subsequent facial numbness, seemingly as a consequence of the fall but possibly as a result of the Accident, subsequent dizziness, which I assume, although it is not clear, means subsequent to the Accident, and the fall that occurred whilst the plaintiff was feeding his cat, one week earlier. The clinical record notes the CT scan of the brain and facial bones and the "sizeable right orbital floor and medial wall fracture with herniation inferior rectus". It also notes that the plaintiff did not report double vision, except variable double vision on end-gaze, one or two incidents per day of flashing lights since the fall and other issues.
The Review Appeal Decision also notes that the RPA recorded that the plaintiff was admitted between 4 September and 5 September 2018. During that time, he underwent surgery, being a right orbital floor reconstruction.
It is relevant to note that the Review Panel also reported on some entries from Dr Peter Voutos, General Practitioner. Shortly, they referred to a reported anxiety and panic attack on 6 January 2016 for which Valium (Diazepam) was prescribed. The Review Panel decision then records that on 9 August 2016, the plaintiff "reported vertigo symptoms for two days" for which the medication Serc was prescribed.
There is a report of a prior motor vehicle accident in July of 2017 as a result of which the plaintiff reported ongoing neck pain and pain across his shoulders and lower back. The plaintiff had reduced range of motion on 21 August 2017, and on 20 December 2017 Dr Voutos again prescribed Serc. The notes, however, do not mention vertigo.
The decision also notes that on 16 May 2018, Dr Voutos treated the plaintiff in a house call for severe vertigo. The clinical note is quoted and reads: "House call this am 7 severe vertigo BP 132/80 given Stemetil 12 mg IMI CNs NAD". A medical certificate issued.
It is appropriate to repeat some of the next description. The Review Panel then stated: "[66] On 31 July 2018 Dr Voutos reported: 'On 26/7 front passenger in MVA hit head on windscreen fractured nose bleeding went to Bankstown Hospital overnight. Had X-rays nose looks fractured lacerations upper inner lip neck aching arms acing [sic]. Examination: bruising resolving across abdomen. Left inner arm bruised entire spine in pain stiffness and spasms shoulders aching tender spinal muscles upper teeth pushed in in shock feeling terrified getting into a car front seat reduced ROM in neck and lower back. No upper or lower neuro signs. Nasal bridge swollen deviated upper part of nose BP 140/80'. (Footnotes omitted.) [67] On 7 August 2018 Dr Voutos reported: 'Surgery consultation poor sleep headaches entire body in pain dizzy for cont meds add serc'. (Footnotes omitted.) [68] On 28 August 2018 Dr Voutos reported: 'Surgery consultation. Right side face tingling. Headaches. Dizzy BP 125/80 Need CT facial bones'. (Footnotes omitted.) [69] On 30 August 2018 Dr Voutos reported: 'Surgery consultation Add notes from 28/8 as he fell last Friday at the back of the yard onto an and hit Right side face onto object and now periorbital bruising called pt to go to hospital stat due to orbital fracture'. [sic]" [5] (Footnotes omitted.)
The Review Panel then summarised the medico-legal reports and the submissions of the parties. Under the heading "Medical Examination by Medical Assessor O'Neill", the Review Panel noted that Medical Assessor O'Neill saw the plaintiff on 19 October 2022, recited some background information and again summarised the history of events on and after 26 July 2018. An extract of that summary reads: "[121] The admission summary stated '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 remembers is having his parents around him'. [122] Neither Dr Givorshner nor the admission summary made any reference to dizziness. The only reference to dizziness was in the triage entry. [123] Dr Voutos then arranged a CT scan of the facial bones which showed fractures of the right orbital floor and medial wall. [124] Mr Amos was admitted to Royal Prince Alfred Hospital on 4 to 5 September 2018 or from 11 to 12 September 2018 or on 24 October 2018." [6]
As to the subsequent fall, which was and is the major issue associated with the dispute between the parties, the Review Panel decision recites: "[129] Mr Amos 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 to 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. [130] From that time Mr Amos has been aware of altered sensation in the region of his right upper lip, the right side of his nose and the medial right lower right cheek." [7]
Under the heading "Continuing Symptoms", the Review Panel repeats, seemingly, the notes of Medical Assessor O'Neill which recorded the history given by the plaintiff that his life had completely changed since the accident on 26 July 2018. He quoted an inability to work, train or play football or to socialise. The note records weight loss from 120kg to 85kg and that he "rarely left the room in his parents' home" and was "embarrassed to be seen". There was reference to pain "everywhere" and to the consumption of Endone (Oxycodone) at a minimum of two tablets per day. The Review Panel also recited that the plaintiff had anxiety, especially when getting into a car and was required to consume Valium (between two and six tablets per day). The decision then says: "[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. 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. [140] He did not report any deafness but occasionally was aware of a ringing sound in both ears." [8]
The Review Panel reiterated that the plaintiff was a poor historian and then recorded a conclusion, presumably being the conclusion of the Medical Assessor O'Neill, in the following terms: "[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. [146] Serc is supposed to be taken regularly as a preventative agent for symptoms. Inappropriately, Mr Amos only takes it whenever he feels the onset of his dizziness or vertigo. [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 cause 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 of 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." [9]

Conclusions

To some extent at least, the separate grounds of review are different expressions of the same fundamental premise. Fundamentally, the plaintiff submits that the Review Panel, in dealing with the causation question arising in relation to the subsequent fall, erred in the way it dealt with the plaintiff's allegations of "dizziness" and "vertigo".
In that regard, the Review Panel failed to put the issue to the plaintiff in a manner that allowed the plaintiff to deal with the issue directly; took too narrow a view of the plaintiff's descriptions, which were necessarily those of a layperson; and insufficiently explained its path of reasoning in distinguishing between the sensation of "spinning in the head" and "the environment spinning", in circumstances where the physical environment was, necessarily, static.
It is important to differentiate between an appeal or merits review, on the one hand, and on the other hand, judicial review. Judicial review is concerned with error of law or jurisdiction, not the merits of the decision of fact. The classic description of the distinction between the two to which courts often refer is that of Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin [10] in which his Honour said: "The duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, and, subject to legal control for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and extension of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case. There is one limitation, 'Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottingham Shire County Council v Secretary of State for the Environment [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision oraction. The limitation is extremely confined."
In further comment in the foregoing reasons for judgment in Quin, Brennan J dealt with the inappropriateness of dealing with "unfairness" as distinct from error of law or jurisdiction. His Honour remarked that if the Court embarked upon the determination of "unfairness" in its opinion of the merits of an administrative decision that is required to be made, then the Court would be assuming the jurisdiction to the very thing that is to be done by the repository of the administrative power, namely, "choosing among the courses of action upon which reasonable minds might differ". [11]
Further, the Court must exercise care in dealing with an application for judicial review in another significant area. The Court, on judicial review, is not concerned with "looseness of language", nor "unhappy phrasing". Nor is the Court, in exercising its functions, examining the reasons of the decision maker in a manner such that they are "construed minutely and finely with an eye keenly attuned to the perception of error". [12]
The grounds for review agitated by the plaintiff in these proceedings rest upon two fundamental issues: the breach of the rules of procedural fairness or denial of natural justice; and the insufficiency of reasons for the decision and/or conclusion reached. It is necessary to deal with the principles that underpin each of the foregoing issues.
First, the determination that the later fall was not caused by the Accident is a determination of fact. It is a determination of fact based upon the expert opinion of two Medical Assessors who were part of the Review Panel. Certiorari does not run for errors of fact unless there is an error of law or jurisdiction (if jurisdictional error were not necessarily error of law).
The regime under which the Review Panel exercised its functions required reasons for its determination to revoke the Certificate of the Medical Assessor at first instance and to issue a new Certificate. The MAIA replaced the provisions of the Motor Accidents Compensation Act 1999 (NSW) ("MACA") in relation to motor vehicle accidents that occurred after the commencement of the MAIA.
Under the MACA, the determination of whole person impairment required a Medical Assessor to issue reasons for the determination. [13] The provisions of the MAIA also require that the determination of whole person impairment, which, in this case, amounts to the medical dispute referred to the Medical Assessor on which the Medical Assessor is required to provide a certificate, the Medical Assessor set out the reasons for any finding as to any matter certified, for which the certificate is conclusive evidence. [14] The determination of whole person impairment that was in issue in these proceedings was a matter that was required to be certified and was prima facie evidence in any court proceedings in relation to that matter. [15]
By operation of s 7.26(7) and of s 7.26(9) of the MAIA, the role of the Review Panel was either to confirm the certificate of assessment or to revoke that certificate and issue a new certificate as to the matters concerned. [16] In this case, the Review Panel undertook the latter course, in which case the provisions of s 7.23 of the MAIA apply to the new certificate and/or new combined certificate. [17] As a consequence, it was necessary for the Review Panel to issue reasons for its conclusion.
No party disputes the requirement of the Commission to issue reasons for its determination. As a consequence of the statutory requirement to provide reasons, a failure to provide reasons, including a failure to provide sufficient reasons, is an error of law. [18] Moreover, unless the statute provides otherwise, once the legislature requires reasons to be provided, those reasons form part of the record. [19]
On the issue of procedural fairness, an administrative decision-maker in exercising the power to affect adversely the rights of a party (or to enforce them) is required to adhere to the rules of procedural fairness, which will apply unless the legislature provides otherwise. The exclusion of the rules of procedural fairness or natural justice by the legislature requires an express exclusion or plain words of necessary intendment. [20]
There is no express exclusion of procedural fairness as it applies to either the functions of a Medical Assessor or to the Review Panel. On the contrary, to the extent that there is any statement by the legislature as to the requirement, it indicates, if not necessarily implies, that the principles of procedural fairness apply to the process giving rise to a certificate. The conclusive nature of a certificate in relation to certain determinations by either the Medical Assessor or the Review Panel is negated in circumstances where there has been a failure to abide by the principles of procedural fairness. [21]
Moreover, the Commission, while relieved of the necessity for formality and technicality, and relieved of the binding nature of the rules of evidence, is required to act according to "equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms". [22] Those words have been used over centuries in relation to proceedings before tribunals in England and in Australia.
The earliest reference to these expressions discovered by the Court was by Henry VIII, later codified in "an act for the recovery of small debts and for the relieving of poor debtors in London" (3 James 1C, 15, s 11), which, in 1606, gave similar procedural functions to the Commissioner who constituted Courts of Request or the Court of Conscience under the statute. Its first use in this State seems to have been in 1842 (6 Vict. 15) and it was inserted in both the State (Industrial Arbitration Act 1901 (NSW)) and Federal (Commonwealth Conciliation and Arbitration Act 1904 (Cth)) industrial arbitration statutes when first enacted and into statutes dealing with small debt recovery: see Small Debts Recovery Act 1912 (NSW), s 7. [23] The term also currently appears and has appeared in industrial arbitration statutes for decades. [24]
The full extent and all of the limitations inherent in the phrase has not been authoritatively determined. Nevertheless, the phrase has been held to include natural justice and/or procedural fairness. [25]
The rules of procedural fairness are neither immutable nor uniform. The requirements for procedural fairness vary depending upon the nature of the tribunal, the nature of the decision to be made, and the context of the proceedings. In this case, the Review Panel is determining the existing circumstances, which, in turn, affects the capacity of the plaintiff to enforce his existing rights (assuming he has them).
While the proceedings are expressly rendered less formal than proceedings in a court context, and the rules of evidence do not apply, procedural fairness or natural justice does apply. Those rules do not, necessarily, include the right to cross-examine. [26]
It is necessary to reiterate that an error of fact or conclusion is, without more, not capable of warranting intervention by the Court under s 69 of the Supreme Court Act 1970 (NSW). Leaving aside the effect of a privative clause, intervention by this Court in a decision of the Commission is permitted only in circumstances where there is an error of law or an error of jurisdiction. It is not for this Court to involve itself in the merits or fact-finding exercise of the tribunal to which the legislature has given the decision-making authority.
Nevertheless, the plaintiff in these proceedings essentially submits that there has been a practical injustice, as a consequence of the failure of the Review Panel to raise with the plaintiff the difference, as the Review Panel saw it, between "dizziness" and "vertigo". Rather, the Review Panel relied upon the inexpert definitional distinction drawn by the plaintiff to form a basis for a diagnosis of that from which the plaintiff suffered prior to the Accident and was suffering at the time of the fall.
The Review Panel, on the submission of the plaintiff, drew that distinction without drawing to the attention of the plaintiff the importance and significance of the distinction, nor the use it would make of the distinction. Further, the Review Panel, on the submission of the plaintiff, did not ask the plaintiff whether he had experienced the symptoms that were necessary to form the diagnosis, and which were absent before or after the Accident.
Procedural fairness requires "practical injustice". The classic expression in relation to this kind of breach of the rules of procedural fairness is that each party is entitled to a reasonable opportunity to prepare and to present the party's case and, less relevantly for present circumstances, have the case heard and determined in a manner that is unbiased and has no appearance of bias. [27]
More recently, the High Court referred to a party being denied an opportunity to present evidence or make submissions on an issue that required consideration. [28] The foregoing was recited, in the context of dealing with the materiality of the omission, in the following passage: "[32] As explained in MZAPC, the materiality of a breach requires consideration of 'the basal factual question of how the decision that was in fact made was in fact made'. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with 'as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined'. The burden falls on the plaintiff to prove 'on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition'. [33] There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of 'reasonable conjecture' is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive 'story' of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, 'reasonable conjecture' does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of 'reasonable conjecture', correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome." [29] (Footnotes omitted).
The issue of materiality was dealt with in separate reasons, forming part of the majority, in Nathanson, by Gageler J in the following passage: "[45] SZMTA and MZAPC are together authority for two cumulative propositions. The first is that a denial of procedural fairness results in a decision being affected by jurisdictional error, so as to be capable of justifying the grant of curial relief, only if that denial is shown by the applicant to have been material to the decision. The second is that the materiality of a denial of procedural fairness is shown by the existence of a realistic possibility that the decision could have been different had procedural fairness been observed. … [47] Establishing that threshold of materiality is not onerous. The explanations in MZAPC of the materiality of the denials of procedural fairness which had been found in Stead v State Government Insurance Commission and in Re Refugee Review Tribunal; Ex parte Aala are consistent with the observation that '[i]t is no easy task for a court ... to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.'" [30] (Footnotes omitted.)
As the foregoing citation makes clear, the practical injustice necessary to establish a denial of procedural fairness has a material effect, unless it can be said that the breach of procedural fairness could have had no impact on the outcome of the proceeding. [31]
Conceptually, in this case, the alleged denial of procedural fairness has similarities to the rule in Browne v Dunn. [32] Of course, a witness, in that capacity, is incapable of being denied procedural fairness. But a party to proceedings is capable of being denied procedural fairness and may be denied procedural fairness where, in the capacity of a witness, or in like capacity, the party has not had outlined an issue relating to the reliability of the evidence or the effect of the evidence, which issue may have been dealt with by further evidence or in answer to further questions.
The principle established by Browne v Dunn has been held to apply to non-curial proceedings (with the possible exception of some inquisitorial proceedings) and depends, essentially, on the nature of the administrative decision to be undertaken and the process involved in forming it. [33]
In circumstances where the process being undertaken is adversarial (or predominantly adversarial), tribunals are governed by the rule in Browne v Dunn because it is, fundamentally, a rule of fairness or practical fairness. [34]
The Full Bench of the then Australian Conciliation and Arbitration Commission in Re National Building Trades Construction Award 1975, supra, said: "Although the Commission is relieved by s 40 of the Act from any obligation to act in a formal manner and although it is not bound by any rules of evidence and indeed although it may inform itself on any matter in such manner as it thinks just, we believe nevertheless, that the rule in Browne v Dunn should be observed in proceedings in the Commission. In particular we adopt what was said by Lord Herschell in this case, when his Lordship said: 'It is absolutely essential for the proper conduct of a cause; where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination, showing that that imputation is intended to be made and not to take his evidence and pass it by as a matter altogether unchallenged and then when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested in the case that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.' In our view, this is no more than a rule which we adopt as being essential to fair play and fair dealing with witnesses." [35]
Justice Sackville, as a member of the Federal Court of Australia, dealt with the procedures in the Administrative Appeals Tribunal and said: "[58] The AAT is not bound by the rules of evidence: AAT Act, s 33(1)(c). It is, however, obliged to adopt 'fair procedures which are appropriate and adapted to the circumstances of the particular case': Kioa v West (1985) 159 CLR 550, at 585, per Mason J; Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, at 207, per Spender J; Lodkowski v Comcare (1998) 53 ALD 371, at 386, per Goldberg J. The application of the rule in Browne v Dunn has been treated as an aspect of procedural fairness and, if breached, capable of vitiating a decision of the AAT: Hoskins v Repatriation Commission (1991) 32 FCR 443, at 446, per Pincus J; Dolan v AOTC, at 208, per Spender J. The rule in Browne v Dunn was formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, at 16, as follows: 'It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.' [59] The application of the rule in Browne v Dunn as an aspect of procedural fairness must take account of the statutory functions of the AAT. The task of the AAT is not necessarily limited by the issues identified by the parties. As was said by Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408, at 425, in substance the AAT's review of the primary decision is inquisitorial in character, with the AAT under a duty to arrive at the correct or preferable decision on the material before it. Subject to the rules of procedural fairness, the AAT is entitled to inform itself on any matters relevant to the pleadings in such manner as it thinks appropriate: s 33(1)(c)." [36]
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.
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.
Secondly, the conclusion based upon the description by the plaintiff of his symptoms after the Accident depended upon a fine distinction between symptoms that would allow for a conclusion consistent with the case of the plaintiff or would not allow for it. Again, the Review Panel did not draw to the attention of the plaintiff the issues with which they were concerned, and upon which their conclusion depended.
As has been stated on a number of occasions, all that is required for procedural fairness is for a party to be in a position where a reasonable opportunity to prepare and to present the case has been provided and the party either has notice or should reasonably have apprehended that the issue was or might become a live issue. [37] It is never the function of a court or tribunal to ensure that the party takes the best advantage of the opportunity provided to the party.
While the plaintiff was able, in answer to questions from members of the Review Panel during the course of clinical examination, to define, in his own words, the difference between "dizziness" and "vertigo", there was no attempt to enquire of the plaintiff whether he felt the need to reach out for support; whether he felt the room spinning around him (whether in the head or otherwise); and the degree to which the symptoms suffered before the Accident and after the Accident differed.
It should be remembered that the Review Panel was measuring "impairment", not injury. If the Accident occasioned an aggravation of the symptoms, thereby causing an impairment that previously was immaterial, insignificant or non-evident, such an aggravation was required to be measured as being wholly caused by the Accident. If the symptoms were worse, then the greater impairment would be measured and the differential would, in accordance with the Guidelines, be the calculation of the whole person impairment arising from the Accident. Of course, each of the foregoing assumes that the aggravation is caused by the Accident.
As earlier stated, particularly with tribunals comprised of experts, who, in this case, are capable of diagnosing the plaintiff themselves, the Court is to give great weight and deference to a fact-finding determined by such experts. However wrong it may have been, or it may seem to have been, a wrong fact-finding is not an error of law or capable of remedy by this Court on judicial review. [38]
Dealing with the extract, above, from the reasons for judgment of Sackville J, whether there has been a breach of the rules of procedural fairness as a consequence of the failure to alert the plaintiff to the issues upon which the controversy would be decided depends on the statutory functions of the tribunal. A Review Panel would, in most cases, find it unnecessary to alert a plaintiff to issues affecting a diagnosis, be it a diagnosis of injury and impairment suffered prior to the relevant event or as a consequence of it.
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.
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.
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.
In light of the foregoing, it is unnecessary for the Court to deal with the criticism that is made of the reasons for decision and their sufficiency. While I accept, to some degree, that the distinction between "spinning in the head" and "the sensation of the room spinning" are, to the layperson, confusing and would have been confusing to the plaintiff if that were the nature of the questions asked of him, to experts on the panel, such a distinction is a sufficient explanation of the path of their reasoning.
Reasons for decision should, optimally, be written for the purpose of explaining to parties the path of the reasoning. The circumstance, as I accept is the case in these proceedings, that the distinctions drawn by the Review Panel were understandable to expert medical practitioners is not optimal, if it is not also understandable to the layperson, and, in particular, the party to the proceedings.
Nevertheless, I do not consider that such a departure from "best practice" renders the reasons an insufficient explanation of the path of reasoning of the Review Panel and Ground 1 of the application for judicial review should be refused. The determination by the Court as to procedural fairness deals, albeit eliding the grounds, with Grounds 2, 3 and 5. It is unnecessary for the Court to deal with Ground 4.
For the reasons already provided, the Court considers that the plaintiff has been denied procedural fairness in the manner in which the Review Panel dealt with the appeal and, in particular, by not alerting the plaintiff in a manner by which the plaintiff would reasonably apprehend the distinctions being drawn and the issue with which the Review Panel was dealing with the difference between "dizziness" and "paroxysmal positional vertigo"; on the necessity of the plaintiff needing to reach out for support. The failure of the plaintiff to be asked whether he felt he needed support or to reach out for it amounted to a failure to apprise the plaintiff of the issues with which he was required to deal, if he were able to deal with it.
As has been said on many occasions the function of a Review Panel, of this kind, is to reach its own conclusions on the medical question that is before it. The medical question includes the assessment of whole person impairment.
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. [39] 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.
As a consequence of the failure to give the plaintiff a reasonable opportunity to deal with these distinctions and the issues of concern to the Review Panel, the decision of the Review Panel should be quashed. There is no discretionary reason why the order should not be made. The appeal or application for review lodged in the Commission by GIO is required to be dealt with by the Commission in accordance with the MAIA and in accordance with law.
The Court makes the following orders: 1. An order in the nature of Certiorari quashing the decision, certificate and medical assessment of the Review Panel of the Personal Injury Commission of New South Wales ("the Commission"), constituted by the third defendants relating to the plaintiff herein, issued, in relation to the Certificate, on 8 November 2020, and, in relation to the decision and/or reasons for decision, issued on 15 November 2022; 2. An order remitting the application for review by the first defendant herein of the medical assessment of the plaintiff to the second defendant herein, being the President of the Commission, to be dealt with in accordance with the Motor Accident Injuries Act 2017 (NSW), including, to the extent appropriate, referral to a differently constituted Review Panel to deal with the said application; 3. The first defendant shall pay the plaintiff's costs of and incidental to the proceedings before the Court; 4. If either the plaintiff or the first defendant seeks a different or special order as to costs, such may be the subject of application within 10 days of the date of this judgment and the other party may respond within a further seven days. Any such application and response shall be in writing, of 10 pages or less (not including any document by way of evidence); and such application shall be dealt with on the papers.

Endnotes

Court Book, p 64; Reasons for Decision, p 4, at [6].
Court Book, p 72; Reasons for Decision, p 12, at [45].
Court Book, p 74; Reasons for Decision, at [56].
Court Book, p 74; Reasons for Decision, at [57].
Court Book, p 76; Reasons for Decision, at [66]-[69].
Court Book, p 84; Reasons for Decision, at [121]-[124].
Court Book, p 85; Reasons for Decision, at [129]-[130].
Court Book, pp 85-86; Reasons for Decision, at [135]-[140].
Court Book, pp 86-88; Reasons for Decision, at [144]-[155].
Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 at CLR 35-36.
Ibid.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); [1996] HCA 6 at [30]; citing with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456.
Motor Accidents Compensation Act 1999 (NSW), s 94(5).
Motor Accident Injuries Act 2017 (NSW), s 7.23(7), which is part of Div 7.5 of the MAIA.
Motor Accident Injuries Act 2017 (NSW), ss 7.21, 7.23(2).
Motor Accident Injuries Act 2017 (NSW), s 7.26(7).
Motor Accident Injuries Act 2017 (NSW), s 7.26(9).
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.
Ibid.
Annetts v McCann (1990) 170 CLR 596 at 598 (per Mason CJ, Deane and McHugh JJ); [1990] HCA 57.
Motor Accident Injuries Act 2017 (NSW), s 7.23(3).
Personal Injury Commission Act 2020 (NSW), s 43.
O. Howard Beale "Equity and Good Conscience", (1937) 10 ALJ 349.
Conciliation and Arbitration Act 1904-1983 (Cth), ss 40, 41; Conciliation and Arbitration Act 1983-1988, ss 110 (Cth), 111; Industrial Relations Act 1988 (Cth), ss 110, 111; Workplace Relations Act 1996 (Cth), ss 110, 111; Industrial Relations Act 1996 (NSW), ss 162, 163; Industrial Arbitration Act 1940 (NSW), s 83; Industrial Arbitration Act 1912-1949 (WA), s 69.
Barlow v Orde (1870) L.R.3 P.C.164 (Westbury LJ); Skinner v Naunihal Singh (1913) 40 Indian Appeals 105 at 114 (Shaw LJ); Colliery Employees Federation v Northern Colliery Proprietors Association [1904] 3 AR (NSW) 182 at 185; Greater Wollongong City Council v Dunn [1973] 1 NSWLR 36 at 42.4 (Hutley JA, accepting that the rules of procedural fairness applied).
TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995.
Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J, as part of a majority of the Federal Court); [1978] FCA 48.
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [36]-[38].
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737; [2022] HCA 26 at [32]-[33].
Ibid, at [45] and [47].
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 122; [2000] HCA 57 at [104] (McHugh J).
Browne v Dunn (1893) 6 R 67, extensive extracts from which are reiterated in Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 44 ALR 607 (Hunt J); see also R v Birks (1990) 19 NSWLR 677 at 686-692 (Gleeson CJ).
As to the inapplicability of the rule to inquisitorial process, see Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60 at [56]-[57].
Re National Building Trades Construction Award 1975 (1983) 17 IR 446 (Australian Conciliation and Arbitration Commission, Ludeke Alley JJ and Merriman C); Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell White [No 2] (1990) 35 IR 60 at 64-9 (Hungerford J); Employers Federation of NSW v Greco (1993) 51 IR 451 at 455 (Maidment, Schmidt JJ and Redman CC); Marelic v Comcare (1993) 47 FCR 437 at 442; [1993] FCA 790 (Beazley J); Haberfield v Department of Veterans' Affairs (2002) 121 FCR 233; [2002] FCR 1579 at [57] (Sackville J); Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206 at 207; [1993] FCA 202 (Spender J); Hoskins v Repatriation Commission (1991) 32 FCR 443 at 446 (Pincus J).
Re National Building Trades Construction Award 1975, supra.
Haberfield v Department of Veterans' Affairs (2002) 121 FCR 233; [2002] FCR 1579 at [58]-[59] (Sackville J).
Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J); [1978] FCA 48; Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 (Gaudron J); [1989] HCA 13.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [88]-[89] (Mason CJ).
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2023

Conciliation and Arbitration Act 1904(Cth)

Industrial Arbitration Act 1901(NSW)

Industrial Arbitration Act 1940(NSW)

Industrial Relations Act 1988(Cth)

Small Debts Recovery Act 1912(NSW)

Workplace Relations Act 1996(Cth)

Motor Accidents Injuries Act 2017(NSW)

State (Industrial Arbitration Act 1901(NSW)

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