Bullers v State of New South Wales

Medium Neutral Citation: Bullers v State of New South Wales [2025] NSWSC 384

Hearing dates: 11 March 2025

Date of orders: 24 April 2025

Decision date: 24 April 2025

Jurisdiction: Common Law

Before: Price AJ

Decision: (1) Set aside the Medical Assessment Certificate issued by the Appeal Panel dated 14 May 2024 and set aside the decision of the Appeal Panel dated 15 May 2024.
(2) Direct that the matter is remitted to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to be determined in accordance with law.
(3) As agreed between the parties, no order as to costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – review of Appeal Panel decision under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether jurisdictional error – whether Appeal Panel failed to accord procedural fairness – whether failure to consider and apply the correct legal principles – whether error was material – practical injustice
ADMINISTRATIVE LAW – judicial review – whether error of law on the face of the record – whether typographical error in Appeal Panel’s reasons for decision – where Appeal Panel provided its actual path of reasoning to enable conclusion without speculation
WORKERS COMPENSATION – psychological injury – medical assessment – where dispute as to assessment of Whole Person Impairment – deduction for previous injury or pre-existing condition or abnormality pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act – decision of Appeal Panel to revoke and issue new medical assessment certificate

Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65A(3), 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 319, 323, 327, 328
Personal Injury Commission Rules 2021 (NSW), r 67

Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682
CSR Ltd v Ewins [2020] NSWSC 511
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767; (2019) 89 MVR 87
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54
State of New South Wales v Ali [2018] NSWSC 1783
Tagg v Racing New South Wales [2023] NSWSC 1547
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited: State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021)

Category: Principal judgment

Parties: Michael Bullers (Plaintiff)
State of New South Wales (First Defendant)
President of the Personal Injury Commission of
New South Wales (Second Defendant) (submitting appearance)
Member Marshal Douglas, Dr Nicholas Glozier and Dr Graham Blom as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant) (submitting appearance)

Representation: Counsel:
R Brown (Plaintiff)
L Robison (First Defendant)
Solicitors:
AC Lawyers Nowra (Plaintiff)
Bartier Perry (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2024/299489

Publication restriction: Nil

JUDGMENT

1. These proceedings arise from a decision of the third defendant, the Appeal Panel of the Personal Injury Commission of New South Wales (“Appeal Panel”) dated 15 May 2024, constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”). The Appeal Panel assessed the Whole Person Impairment (“WPI”) resulting from the plaintiff, Michael Bullers, post traumatic disorder to be 8% (after deductions) and issued a new Medical Assessment Certificate (“MAC”). An assessment of 8% WPI falls below the compensation threshold of being at least 15% WPI resulting from a primary psychological injury pursuant to s 65A(3) of the Workers Compensation Act 1987 (NSW) (“WCA”).

2. By a summons filed on 14 August 2024, the plaintiff challenges that decision by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). The plaintiff seeks the following orders:

“1 An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid the decision made by the Appeal Panel of the Personal Injury Commission, the second and third defendant … made on 15 May 2024 determining that the plaintiff psychological injuries sustained as a result of an incident on 1 March 2017 was 8%.

2 The medical dispute be remitted to the [s]econd [d]efendant for determination by an Appeal Panel, differently constituted, according to law.

3 Costs.

4 Such further orders as the Court sees fit.”

3. The summons identifies the grounds of review as follows:

“10 There are a number of jurisdictional errors and/or errors of law on the face of the record as described below that occurred in the making of the decision by the Appeal Panel.

a. In revoking and issuing a subsequent certificate the Appeal Panel denied the [p]laintiff procedural fairness by failing to conduct an examination of the [p]laintiff before purporting to conduct an assessment of permanent impairment.

b. The Appeal Panel decision was unreasonable or in the alternative irrational in that it accepted that the Medical Assessor had erred by rating the [p]laintiff’s impairment in self-care and personal hygiene as class 2, but failed to rectify the error.

11 Each of the jurisdictional errors and/or errors of law on the face [of the record] identified above were material because they deprived the [p]laintiff of the realistic possibility of a different outcome.”

4. The plaintiff asserts that the Appeal Panel’s decision is vitiated by jurisdictional error by reason of a failure to afford procedural fairness and an error of law on the face of the record, and therefore, the decision should be set aside and remitted to a differently constituted Appeal Panel for determination according to law.

5. The first defendant resists the relief sought in the plaintiff’s summons. The second defendant, the President of the Personal Injury Commission of New South Wales (“PIC”) and the Appeal Panel have filed submitting appearances. In these reasons, I will refer to the first defendant hereafter as “the defendant”.

6. During the hearing, the Court was informed that the parties had agreed there should be no order as to costs.

Relevant legislation

7. For the purposes of the present case, it is sufficient to simply set out ss 327 and 328 of the WIM Act (where relevant), which govern the grounds of appeal from a medical assessment and procedure to be applied by the Appeal Panel.

8. It is also not necessary to fully set out the tables containing the applicable classes and criteria for assessing impairment under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (“Guidelines”), but they have been discussed in numerous decisions of this Court, and recently set out by Schmidt AJ in Tagg v Racing New South Wales [2023] NSWSC 1547 at [65].

9. Sections 327 and 328 of the WIM Act relevantly provides as follows:

“327 Appeal against medical assessment

(1) A party to a medical dispute may appeal against a medical assessment under this Part, but only in respect of a matter that is appealable under this section and only on the grounds for appeal under this section.

(2) A matter is appealable under this section if it is a matter as to which the assessment of a medical assessor certified in a medical assessment certificate under this Part is conclusively presumed to be correct in proceedings before a court or the Commission.

(3) The grounds for appeal under this section are any of the following grounds—

(a) deterioration of the worker’s condition that results in an increase in the degree of permanent impairment,

(b) availability of additional relevant information (but only if the additional information was not available to, and could not reasonably have been obtained by, the appellant before the medical assessment appealed against),

(c) the assessment was made on the basis of incorrect criteria,

(d) the medical assessment certificate contains a demonstrable error.

(4) An appeal is to be made by application to the President. The appeal is not to proceed unless the President is satisfied that, on the face of the application and any submissions made to the President, at least one of the grounds for appeal specified in subsection (3) has been made out.

…

328 Procedure on appeal

(1) An appeal against a medical assessment is to be heard by an Appeal Panel constituted by 3 persons chosen by the President as follows—

(a) 2 medical assessors,

(b) 1 member of the Commission who is a member assigned to the Workers Compensation Division of the Commission.

(2) The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.

(2A) To avoid doubt, any medical re-examination of the worker for the purposes of the review need not be conducted by all of the members of the Appeal Panel if the members agree for it to be conducted by only some of the members.

(3) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the medical assessment appealed against may not be given on an appeal by a party to the appeal unless the evidence was not available to the party before that medical assessment and could not reasonably have been obtained by the party before that medical assessment.”

Factual background prior to the plaintiff’s application to appeal the decision of the Medical Assessor (“MA”)

10. The relevant factual background summarised below (at [11]-[19]) is not disputed.

11. The plaintiff’s employment with the defendant as a registered nurse commenced sometime in or around 2009. During the course of that employment, the plaintiff sustained a psychological injury on 1 March 2017, by reason of an assault by a patient with dementia. Following that incident, the plaintiff notified his employer of the workplace injury and made a claim for workers compensation benefits, which was accepted by the defendant. Weekly compensation payments and medical expenses incurred were paid to the plaintiff until around 28 August 2022.

12. On 1 November 2022, relying upon a medical report of Associate Professor Robertson dated 10 October 2022, the plaintiff made a claim for lump sum compensation for permanent impairment resulting from his injury under s 66 of the WCA. The plaintiff’s claim was supported by Professor Robertson’s assessment in respect of a WPI of 22% (in the sum of $55,550). That claim was rejected by the defendant’s insurer in a letter dated 28 March 2023. In disputing liability for compensation, the defendant relied upon a report of Dr Peter Young dated 7 February 2023, assessing the plaintiff’s WPI as 11%, which is less than the at least 15% threshold required to be entitled to compensation under s 65A(3) of the WCA. Accordingly, a dispute arose as to the plaintiff’s degree of permanent impairment which constituted a “medical dispute” within the meaning of s 319(c) of the WIM Act.

13. On 27 April 2023, the plaintiff filed an Application to Resolve A Dispute (“ARD”) accompanied by supporting documentation with the PIC. The dispute concerned the plaintiff’s claim for lump sum compensation and for weekly compensation payments. The plaintiff’s injury described in the ARD was as follows:

“Physical assault by a patient at work on 1 March 2017 causing PTSD and an aggravation/exacerbation of Major Depressive Disorder. Both conditions aggravated by subsequent verbal abuse by patient’s family at work on or about 30 August 2018. Has been unable to return to work since.”

14. On 17 May 2023, the defendant lodged its Reply to the ARD (“Reply”). The defendant included supporting documentation with its Reply to dispute the plaintiff’s claim.

15. On 27 November 2023, the plaintiff was referred to an approved medical specialist, Dr Samson Roberts (“the MA”). The MA conducted his assessment of the plaintiff by Audio-Visual Link (“AVL”) during which the connection failed and abruptly ended, although about 5 minutes later it was reconnected.

16. As the interruption in the assessment became part of the plaintiff’s appeal to the Appeal Panel, it is convenient to refer to the MA’s report of the assessment in par 5 of the MAC which states as follows:

“… [T]he assessment was undertaken using audio visual technology. The quality of the connection was satisfactory. [The plaintiff] presented as an overweight man with cropped hair and about one day’s beard growth. He exhibited a restricted range of emotional expression. His account reflected a dysthymic mood with brief periods of worsening depression. He described anxiety, hypervigilance, avoidance and intrusive recollections of the subject circumstances. His speech was generally normal in terms of rate, tone and volume, though, on occasion during the interview he was hesitant. No evidence of overt deficits of concentration or memory were apparent during the interview. At the very end of the assessment, the connection failed. By then the interview had essentially completed.”

17. The MA assessed the plaintiff’s WPI to be 7% and issued a MAC to that effect on 28 November 2023.

18. The plaintiff appealed from that decision to the Appeal Panel on 20 December 2023. The appeal was referred to the Appeal Panel as a delegate of the President of the PIC was satisfied that on the face of the application and submissions, at least one of the grounds of appeal specified in s 327(3) of the WIM Act had been made out: s 327(4) of the WIM Act.

19. On 15 May 2024, the Appeal Panel determined that the earlier MAC of the MA should be revoked and issued the MAC referred to above at [1].

Submissions to the Appeal Panel

20. The plaintiff’s written submissions in support of the application to appeal against the decision of the MA contended that the MAC was made on the basis of incorrect criteria and contained a demonstrable error, both of which are available grounds pursuant to ss 327(3)(c) and (d) of the WIM Act.

21. The plaintiff submitted that he had been denied procedural fairness as the AVL was disconnected when the MA was in the process of asking him questions and he was not afforded the opportunity to clarify or provide any additional material that he considered relevant to the questions asked by the MA or the examination generally.

22. The plaintiff further submitted that the MA had misapplied the incorrect criteria and/or had fallen into demonstrable error with the consequence being that the degree of impairment (experienced as a WPI) had been assessed at a lower level than ought to have been the case. The errors were submitted to relate to the assessment of the following four Psychiatric Impairment Rating Scale (“PIRS”) scales: (i) “self care and personal hygiene”; (ii) “social and recreational activities”; (iii) “concentration, persistence and pace” (“CPP”) and (iv) “employability”.

23. The plaintiff submitted that the MAC issued by the MA should be revoked and that he should be re-examined by the Appeal Panel.

24. The plaintiff’s submissions were accompanied by his supplementary written statement dated 20 December 2023 which included the following:

“6. I was very anxious prior to the assessment and did my best to answer the questions I was asked by the [MA]. Due to my anxiety I do not tend to elaborate on things unless I am asked further, and I often have trouble remembering dates or recalling information when put on the spot.

7. The assessment commenced and the [MA] introduced himself and began by asking me a few brief questions about the assault.

8. I was asked about my current medications and medical treatment.

9. The interview with the [MA] was not completed because the AVL connection failed. At the time that the AVL connection failed the [MA] was still asking me questions about my condition.

10. After the connection failed I waited for about 5 minutes. The [MA] came back online briefly to say he had no further questions for me and the appointment ended.

11. I was not given the opportunity to clarify any of the answers and I was not asked to add any additional information that I thought was relevant.”

25. The defendant filed a notice of opposition to the appeal and contended in written submissions that the assessment by the MA of the classes of impairment disclosed no demonstrable error and the MAC was not based on incorrect criteria.

26. By way of a cross appeal, the defendant contended that the MA ought to have applied a deduction in accordance with s 323 of the WIM Act and in failing to do so applied the incorrect criteria and fell into demonstrable error.

27. The defendant argued that the MA failed to give sufficient weight to the serious and chronic nature of the plaintiff’s pre-existing psychological illness at the time of assessing his current impairment.

A summary of the statement of reasons of the Appeal Panel

28. The Appeal Panel’s reasons consist of 19 pages. The Appeal Panel in its reasons detailed the background to the application to the appeal which included a summary of the findings of the MA and the ratings that the MA made relating to the plaintiff’s impairment in accordance with the PIRS scales which the plaintiff challenged.

29. The Appeal Panel recounted at [25]-[26] that a preliminary review of the medical assessment had been conducted, and they had determined it was not necessary for the plaintiff to undergo a further medical examination as the material before them was “sufficient to enable the Appeal Panel to determine the respective appeals that the parties have made”.

30. After the Appeal Panel recorded the parties’ submissions, it referred to the plaintiff’s supplementary statement at [51] and noted that “his personal details and details relating to his function in the PIRS he had challenged, is not additional information” pursuant to s 327(3)(b) of the WIM Act as “this information was available to him and could reasonably have been obtained by him before the medical assessment was done”.

31. The Appeal Panel stated at [52]-[59]:

“52. The information he provides in his statement, insofar as it relates to what occurred during the [MA’s] examination of him and how he felt, is additional information because obviously that information could not have been obtained by him before the medical assessment. However, the Appeal Panel considers that that information is not relevant and hence does not establish the ground for appeal provided in s 327(3)(b) of the [WIM] Act.

53. The issue the Appeal Panel must address when considering this ground is established, is whether the additional information would lead the Appeal Panel to a different conclusion than that reached by the [MA]. [1]

54. The statement of [the plaintiff] insofar as [it] contains additional information would not, of itself, lead the Appeal Panel to a different conclusion from that reached by the [MA]. The Appeal Panel has found that the [MA] made errors with respect to his rating of [the plaintiff’s] impairment in two of the PIRS categories and also made an error by not making a deduction under s 323(1) [of the WIM Act], and the Appeal Panel explains its reasons for those findings below. The Appeal Panel’s finding of those errors is unrelated to the additional information that [the plaintiff] has provided in his statement. Saying that in somewhat of a reverse way, the additional information that [the plaintiff] provides in his statement does not relate to the errors the Appeal Panel found.

55. With respect to the problem with the [AVL], the [MA] did not indicate in the MAC that this affected his ability to compose a clinical history sufficient to enable him to conduct an assessment of [the plaintiff’s] permanent impairment from his injury. Indeed, the [MA] noted in the MAC that at the time this issue occurred, his examination of [the plaintiff] was essentially completed. (emphasis added)

56. The Appeal Panel also considers that the history the [MA] detailed in the MAC was thorough. He detailed the relevant circumstances that precipitated the onset of [the plaintiff’s] injury. He detailed the treatment that [the plaintiff] has received. He detailed the symptoms [the plaintiff] experiences. He was able to observe and make findings regarding [the plaintiff’s] demeanour and affect during the examination. He was able to make findings regarding [the plaintiff’s] concentration and memory during examination.

57. The [MA] is a psychiatrist. He has experience in clinical practice. It can be inferred he has skill and experience in how a clinical examination should be conducted to enable a diagnosis to be made and also to make an assessment of permanent impairment of a worker. There is no evidence whatsoever to indicate [the plaintiff] has any clinical experience and indeed it can be reliably assumed he does not. Insofar as the additional information contains [the plaintiff’s] evidence of what occurred and what was said during the [MA’s] examination and his impressions of the [MA’s] ability to conduct an assessment because of the [AVL] issue during the examination, or his impression regarding the [MA’s] conclusions, it has no weight.

58. Further, additional reasons as to why the additional information relating to how [the plaintiff] felt during the examination also has no weight, in that the [MA] was able to make findings on [the plaintiff’s] demeanour and affect during examination.

59. As said, the additional information of itself does not lead the Appeal Panel to come to [a] different conclusion from that reached by the [MA].”

32. Under the heading “self care and personal hygiene”, the Appeal Panel stated at [60]:

“The Appeal Panel does accept [the plaintiff’s] submission to the effect that the [MA] erred by rating his impairment in self-care and personal hygiene as Class 2.” (emphasis added)

33. After referring to examples provided in Table 11.1 of the Guidelines for Class 2 impairment and the descriptors for Class 3 at [61], the Appeal Panel went on to say at [62]-[65]:

“62. The [MA] noted that [the plaintiff] dresses every day but is ‘lax’ with his personal care and does not shower every day. The [MA] noted that [the plaintiff] participates in household tasks. The [MA] noted that [the plaintiff] eats regularly. Within the body of the MAC the [MA] also noted that [the plaintiff] undertakes outdoor maintenance, laundry and sweeping, whereas [the plaintiff’s] wife manages the home and organises bills and that his step-daughter also cooks, cleans and shops.

63. The Appeal Panel considers, that when the MAC is considered as a whole, the [MA] has taken into account conduct of [the plaintiff] that is relevant to assess his impairment in this PIRS.

64. The [MA] has concluded that [the plaintiff] is able to live independently, although does have some impairment in this category. The Appeal Panel observes that the activities that [the plaintiff] does about the household correlate with activities generally done by males of his age and background.

65. The Appeal Panel considers that the matters that the [MA] has highlighted in the PIRS rating form best correlate with the descriptors provided for a Class 2 impairment, and not a Class 3 impairment. The Appeal Panel consequently discerns no error in the exercise by the [MA] of his clinical judgement in rating [the plaintiff’s] impairment in this PIRS as Class 2.” (emphasis added)

34. Under the heading “social and recreational activities”, the Appeal Panel found at [67] that the MA erred by rating the plaintiff’s impairment as Class 2, and considered the matters recorded in the MAC “correlate with an impairment falling with the descriptors provided for a Class 3 impairment”.

35. Under the heading “CPP”, the Appeal Panel did not accept at [72] the plaintiff’s submission that the MA erred by rating his impairment as Class 2 and not Class 3. The Appeal Panel considered at [79] that the MA was correct to correlate the plaintiff’s impairment in CPP with the descriptors for a Class 2 impairment.

36. Under the heading, “employability”, the Appeal Panel accepted at [81] the plaintiff’s submission that the MA erred by rating his impairment as Class 4 and not Class 5.

37. As to s 323 of the WIM Act (the defendant’s cross appeal), the Appeal Panel found at [90] that the MA was wrong to find that a proportion of the plaintiff’s permanent impairment from his injury was not due to his pre-existing chronic and severe depression, which was an error material to the outcome.

38. The Appeal Panel determined that as it had found errors in the MAC, the MAC would be revoked and a new MAC issued with the errors corrected. The Appeal Panel stated that it had corrected the error in the MA’s rating of the plaintiff’s impairment for social and recreational activities by rating his impairment as Class 3. The Appeal Panel corrected the error in the plaintiff’s rating of employability by rating it as Class 5.

39. The Appeal Panel noted that this resulted in PIRS ratings of 2, 3, 2, 2, 2 and 5. This resulted in a total aggregate score of 16, with a median class score of 2, being assessed as a WPI of 9%.

40. With respect to the MA’s error by not making a deduction under s 323(1) of the WIM Act, the Appeal Panel considered that it was too difficult to determine precisely the extent to which the plaintiff’s pre-existing chronic depression contributed to his present permanent impairment and the Appeal Panel assumed, in accordance with s 323(2) of the WIM Act, that the deductible proportion of s 323(1) is 10%.

41. A new certificate was attached to the statement of reasons.

42. The plaintiff does not challenge the Appeal Panel’s finding in respect of the defendant’s cross appeal.

Ground 1: the failure to accord procedural fairness

The competing arguments of the parties

43. The plaintiff identified Ground 1 as being a failure to accord procedural fairness.

44. The plaintiff referred to the disconnection of the AVL partway through the MA’s assessment and recounted that after about 5 minutes, the connection was re-established and the MA told him he had no further questions and ended the examination. The plaintiff complained that he was not given the opportunity to clarify any of his answers and was not asked to provide any further information that he thought was relevant. The plaintiff contended the denial of that opportunity amounted to a denial of procedural fairness as was squarely raised by him in written submissions.

45. The plaintiff referred to [52] of the Appeal Panel’s reasons which purported to dismiss the ground of appeal under s 327(3)(b) of the WIM Act. The plaintiff submitted that his written submissions relied on both ss 327(c) and (d), and the Appeal Panel had failed to deal with his submission about procedural fairness in accordance with those provisions.

46. The plaintiff contended that the Appeal Panel misdirected itself at [53] as to the appropriate legal test and noted that the footnote at [53] cited the following decisions of Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [13] (Basten AJ); State of New South Wales v Ali [2018] NSWSC 1783 at [32]-[39] (Harrison J) and CSR Ltd v Ewins [2020] NSWSC 511 at [43]-[50] (Adamson J). The plaintiff argued that the question the Appeal Panel ought to have considered was that enunciated by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; [1990] HCA 33 (“Bond”).

47. The plaintiff submitted it was not the point that the assessment was “essentially completed” as was relied upon by the Appeal Panel at [55]. But rather the plaintiff’s point was in essence that the assessment ended without affording him the opportunity to provide any further information to the MA. The plaintiff further submitted there was a difference between “essentially completed” being the language adopted by the Appeal Panel and “complete”, the former suggesting some aspects of the assessment were not completed.

48. Another submission was that the Appeal Panel’s failure to properly address the plaintiff’s submission and to conduct its own assessment of the plaintiff in these circumstances gave rise to a jurisdictional error. Furthermore, the failure to afford procedural fairness constituted a jurisdictional error which rendered the Appeal Panel’s decision null and void citing the observations of Gleeson CJ in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [25].

49. The defendant submitted that it does not appear to be suggested for the most part that the Appeal Panel itself denied procedural fairness, but rather that the MA at first instance acted in a manner which was procedurally unfair. The defendant contended it was necessary for the plaintiff to have demonstrated the Appeal Panel’s treatment of that allegation itself amounted to either jurisdictional error or gave rise to an error of law on the face of the record.

Consideration

55. Notwithstanding the way in which par 10(a) of the summons is drafted (see above at [3]), the plaintiff’s contention of a denial of procedural fairness by the Appeal Panel was clarified in written and oral submissions to be that the Appeal Panel failed to deal with the plaintiff’s written submissions concerning procedural fairness and misdirected itself as to the appropriate legal test. The plaintiff’s complaint of jurisdictional error on the part of the Appeal Panel embraces a misunderstanding of the applicable law and asking the wrong question. As was explained by the plurality of the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ with whom Beech-Jones J agreed) in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (“LPDT”) at [7]:

“In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.” (footnotes omitted)

56. The plaintiff bears the onus of satisfying the Court on the balance of probabilities that the alleged error in fact occurred, and if it did, that error was material: LPDT at [9]-[13]. On the question of materiality, the plurality in LPDT said at [14]:

“The question in these cases is whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error. ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.” (footnotes omitted)

57. The Appeal Panel’s decision to admit only that part of the plaintiff’s supplementary statement as it related to what occurred during the MA’s examination and how he felt which is quoted above at [24] is not challenged on appeal. The Appeal Panel’s decision was made pursuant to s 328(3) of the WIM Act.

Did an error occur?

58. One of the contentions raised in the plaintiff’s written submissions to the Appeal Panel was that he had been denied procedural fairness as the AVL was disconnected during the time which the MA was asking him questions, and after reconnection he was not afforded the opportunity to clarify the information he had already given or to provide additional information to the MA. Without expressly referring to “procedural fairness”, the Appeal Panel summarised the plaintiff’s submission at [29] of its reasons.

59. The focus of the Appeal Panel’s reasons at [53]-[54] (see above at [31]) was on a consideration of the availability of additional relevant information and whether the ground of appeal under s 327(3)(b) of the WIM Act was established. The relevant test and the authorities cited at [53] appropriately applied to s 327(3)(b) of the WIM Act but were not relevant to the Appeal Panel’s task of considering whether the plaintiff had been denied procedural fairness by neither being given the opportunity by the MA to clarify his answers nor to provide additional information.

60. In Bond, Deane J at 367 referred to the duty of a statutory body “to act judicially (or in accordance with the requirements of procedural fairness or natural justice)”. This statement by Deane J in Bond was referred to with approval by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 at [25].

61. The High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”), considered the obligation to afford procedural fairness in the context of a statutory body such as the Appeal Panel and said at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ):

“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.”

62. In Re Minister for Immigration and Multicultural Affairs; E**x parte Miah (2001) 206 CLR 57; [2001] HCA 22, Gaudron J observed at [99]:

“The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her … [p]rocedural fairness required that he be given that opportunity.” (footnote omitted)

63. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, Gleeson CJ said at [37]:

“A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations ... [f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

64. Whilst it may be accepted that a fair trial is not synonymous with a perfect trial, as Bell P observed in Moubarak at [96], “it does not follow … that every imperfect trial is necessarily fair”.

65. The Appeal Panel was obliged to consider whether the failure by the MA to give the plaintiff the opportunity to clarify any of his answers or to add additional information after the AVL was reconnected amounted to a practical injustice so as not to accord procedural fairness. The Appeal Panel did not consider that test. This is not a case where the decision-maker failed to refer to the applicable legal test but it is apparent that the decision-maker in fact applied that test: IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767; (2019) 89 MVR 87 at [61]-[63] (Bell P); Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54 at [45] (Chen J). Accordingly, the plaintiff has established that the Appeal Panel failed to refer to and apply the correct legal principles relating to procedural fairness: Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [78] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29] (Kiefel CJ, Gageler and Keane JJ).

Was the error material?

66. Whether the error was material to constitute jurisdictional error is not answered by the MA’s note that at the time the issue occurred with the AVL, his examination of the plaintiff was “essentially completed” (see above at [31]). Nor is it answered by the submission that appeals under s 327 of the WIM Act are “front-end loaded”. The question is whether the Appeal Panel’s decision could realistically have been different had there been no error: LPDT at [7].

67. The MA’s assessment of the plaintiff undertaken via AVL formed an important part of his evaluation of the plaintiff’s WPI. The answers given by the plaintiff to the MA were relevant to the class of seriousness assigned by the MA to the six scales of functional impairment under the PIRS. As Bell P and Payne JA (with whom Emmett AJA agreed) observed in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [94]:

“This calls for the correct characterisation of the conduct, ie whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the [Approved Medical Specialist] taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”

68. The distinctions that may arise in reaching the correct characterisation of each of the six scales readily emerge in the plaintiff’s case, and is clearly evident from the different WPI assessments calculated by Associate Professor Robertson, Dr Young, Dr Roberts and the Appeal Panel. Much will depend on the history of the psychiatric/psychological disorder, the account of present symptoms provided by the injured worker and his or her presentation during the assessment.

69. The plaintiff referred to his anxiety and difficulties with recollection in his supplementary statement. He had the opportunity to collect his thoughts while the AVL was disconnected. It is a realistic possibility that if he had been given the opportunity to clarify his answers and provide further information after the connection was restored, the further information provided may have had some impact on the MA’s characterisation of the plaintiff’s conduct in each of the six PIRS scales.

70. The Appeal Panel’s error was the failure to consider and apply the right test. Should that error not have been made, there is a realistic possibility that the Appeal Panel after conducting a preliminary review of the medical assessment could have decided that the material before it was insufficient to determine the plaintiff’s appeal and found that it was necessary for the plaintiff to undergo a further medical examination.

71. I am not persuaded that the plaintiff suffered no practical injustice and the outcome would inevitably have been the same if the error had not occurred. The threshold of materiality has been met: LPDT at [16].

72. The Appeal Panel’s error was jurisdictional and the relief sought by the plaintiff should be granted.

Ground 2: Error of law on the face of the record in the assessment of self care and personal hygiene

The competing arguments of the parties

73. The plaintiff takes issue with the Appeal Panel’s reasons at [60] and [65], pointing out that both paragraphs could not be correct. The plaintiff cited Wingfoot at [47]-[48], [54]-[56].

74. The plaintiff argued this was not a situation whereby the Court could find that there was an error, but the error did not affect the outcome. The plaintiff argued this was a material error as if self care and personal hygiene had been assessed as Class 3, his PIRS rating would have totalled 17 with a median class score of 3. By applying the conversion table set out under Table 11.7 of the Guidelines, the plaintiff’s WPI would have been assessed at 19% before the deduction under s 323 of the WIM Act.

75. The plaintiff submitted that it was not for the Court to speculate whether [60] contained a typographical error. The plaintiff contended once the Court finds an error somewhere, it is not for the Court to decide whether that error is in either [60] or [65].

76. The defendant submitted that the Appeal Panel’s statement of reasons at [60]-[65] should be read in their totality and the irresistible conclusion which follows is that [60] contains a typographical error in that it omits the word “not” after the word “does”. The defendant argued there would be an inconsistency of reasons if the Appeal Panel exposed a path of reasoning consistent with upholding the appeal as to self care and personal hygiene, but then concluded with reasons expressed in a manner which was diametrically opposed. It was submitted that [60] is not an expression of reasons rather it is a statement of the conclusion reached by the Appeal Panel on the issue, which is followed by the reasons for that conclusion. The defendant submitted that everything set out from [61] to [65] is consistent with a rejection of this aspect of the appeal.

Consideration

77. The MA had characterised the PIRS scale of the plaintiff’s self care and personal hygiene as Class 2. The MA gave the following reasons for that decision:

“[the plaintiff] stated that he dresses every day but acknowledged that he is ‘lax’ with respect to personal care and he does not shower every day. He participates in household tasks. He eats regularly. His account indicated that whilst impaired, he is not so compromised that he would be unable to live independently and he shares in the household with other family members. His account reflects mild impairment arising from his psychiatric condition [sic].”

78. The plaintiff submitted to the Appeal Panel that the MA’s rating as Class 2 was inconsistent with the facts because he could not live independently and needed prompting from his wife and daughter to do simple tasks such as showering, eating and changing his clothes. It was submitted that the plaintiff relied upon others for his meals and although he did eat, this was due to prompting by family members. The plaintiff submitted that his rating for self care and personal hygiene should have been assessed as a Class 3.

79. The Appeal Panel recorded the plaintiff’s submissions on this issue at [31]. When the Appeal Panel came to consider the plaintiff’s challenge to the MA’s assessment, the Appeal Panel commenced at [60] with the passage quoted above at [32] in which the Appeal Panel stated that “it does accept [the plaintiff’s] submission to the effect that the [MA] erred by rating his impairment in self-care and personal hygiene as Class 2”. However, the Appeal Panel’s further consideration at [61]-[65] which is quoted above at [33] concluded with the statement that the Appeal Panel “consequently discerns no error in the exercise by the [MA] of his clinical judgment in rating the [the plaintiff*’*s] impairment in this PIRS as Class 2”. It is self-evident that these findings are inconsistent.

80. It is well settled that the reasons of an appeal panel are not to be construed “minutely and finely with an eye keenly attuned to the perception of error” and are “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).

81. A number of decisions in the Federal Court have considered the present situation where it appears that a typographical error may have been made in the reasons for the decision of a tribunal: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 at [44] (Burley J) and the authorities there cited. What is apparent from these Federal Court decisions is that a common sense approach is adopted in determining whether the reasons contain a typographical error: See, eg, CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 at [28]-[29] (Marshall J) (“CCC”).

82. The Appeal Panel’s actual path of reasoning at [61]-[65] explains why it arrived at the opinion that it was unable to discern error in the MA’s rating as Class 2: at [48]. The Appeal Panel detailed at [61] the Guidelines for Class 2 and Class 3 impairments in this category. In Table 11.1, the PIRS scale in respect of self care and personal hygiene for Classes 2 and 3 are as follows:

| Class 2 | Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food. | | Class 3 | Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition. |

83. A significant descriptor for Class 2 is “able to live independently”, whereas for Class 3 a significant descriptor is “can’t live independently without regular support”.

84. In the Appeal Panel’s reasons at [63]-[64] quoted above at [33], it was determined that the MA had taken into account the plaintiff’s conduct that was relevant to his assessment and had concluded that the plaintiff was “able to live independently”. The Appeal Panel found that the matters highlighted by the MA “best correlate” with the descriptors of a Class 2 and not a Class 3 impairment. The Appeal Panel’s actual path of reasoning plainly demonstrates that there is a typographical error at [60] of its reasons. The word “not” has been mistakenly omitted after the word “does”. The Appeal Panel intended that paragraph to read as it “does not” accept the plaintiff’s submission. This conclusion does not involve improper speculation as the Appeal Panel’s reasoning is undoubtedly explained in sufficient detail to allow this Court to identify the intended conclusion that was arrived at, and as a matter of common sense nothing turns on what could be inferred as a clear and unambiguous typographical error: Wingfoot at [55]; CCC at [28]-[29].

85. In my view, Ground 2 should be rejected.

Orders

86. For these reasons the Court makes the following orders:

87. Set aside the Medical Assessment Certificate issued by the Appeal Panel dated 14 May 2024 and set aside the decision of the Appeal Panel dated 15 May 2024.

88. Direct that the matter is remitted to the President of the Personal Injury Commission of New South Wales for referral to a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to be determined in accordance with law.

89. As agreed between the parties, no order as to costs.

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Endnote

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [13]; see also State of New South Wales v Ali [2018] NSWSC 1783 at [32]-[39] and CSR Ltd v Ewins [2020] NSWSC 511 at [43]-[50].